In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-20-00015-CV

___________________________

On Appeal from the 67th District Court

Tarrant County, Texas

Trial Court No. 067-310073-19

Before Sudderth, C.J.; Kerr and Birdwell, JJ.

Memorandum Opinion by Chief Justice Sudderth

TOTALGEN SERVICES, LLC, Appellant

V.

THOMASSEN AMCOT INTERNATIONAL, LLC, Appellee
2

MEMORANDUM OPINION

I. Introduction

This is yet another case involving the pre-2019 version of the Texas Citizens 

Participation Act (TCPA)1in which one party tries to shoehorn the other party’s 

pleadings into the statute’s purview. 

Appellee Thomassen Amcot International, LLC (TAI), a worldwide broker of 

power-generating equipment, sued Appellant TotalGen Services, LLC for breach of 

contract, alleging that TotalGen had deprived it of a $645,000 commission on a $3.4 

million transaction involving the sale of a 2012 Solar Titan 130 Gas Turbine 

Generator Package and a Deltak Heat Recovery System Generator.

According to TAI, it had entered into a “Mutual Confidentiality and 

Equipment Sourcing Agreement” with TotalGen under which it had disclosed 

proprietary and confidential information to TotalGen in brokering the sale of the two 

pieces of equipment from MP Mine Operations, LLC to either TotalGen or

TotalGen’s customer, Siouxland Energy Cooperative. TAI alleged that the parties’

agreement had required TotalGen to obtain a nondisclosure agreement with a noncircumvention provision from Siouxland before disclosing to Siouxland any 

1The TCPA’s recent amendments became effective September 1, 2019. See Act 

of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–12 (codified at Tex. Civ. Prac. & Rem. 

Code Ann. §§ 27.001–.010). Because the instant lawsuit was filed on August 16, 2019, 

it is governed by the pre-amendment version of the TCPA, and our citations refer to 

that version.
3

information about the equipment (so that TAI could claim its commission) but

instead, once TotalGen obtained the proprietary and confidential information from 

TAI, TotalGen had actively assisted Siouxland in buying the equipment directly from 

MP.

TotalGen filed a motion to dismiss under the TCPA, stating that when TAI 

alleged in its original petition that “TotalGen gave Siouxland all the information about 

the Equipment” and “actively assisted Siouxland in purchasing the equipment directly

from MP,” TAI’s breach-of-contract claim was based on or in response to TotalGen’s 

exercise of the right of free speech or right of association. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.003. The trial court denied the motion. 

In the first two of five issues in this accelerated interlocutory appeal, TotalGen 

complains that the trial court erred by denying its motion. See id. §§ 27.008, 

51.014(a)(12). And in its fifth issue, TotalGen asserts that the trial court erred by 

awarding attorney’s fees to TAI.

2 See id. § 27.009(b).

2TotalGen acknowledges that any order other than the motion to dismiss 

cannot be reviewed in the instant interlocutory appeal. Further, because of the 

automatic stay of all other proceedings in the case that occurred when TotalGen filed 

this interlocutory appeal, see Tex. Civ. Prac. & Rem. Code Ann. § 51.014(b), the trial 

court has not yet issued an order awarding the attorney’s fees. However, in its order 

denying TotalGen’s TCPA motion, the trial court made findings in support of an 

award of attorney’s fees to TAI, and we have reviewed these in the interest of judicial 

economy. See, e.g., Masterson v. Diocese of Nw. Tex., 422 S.W.3d 594, 609 (Tex. 2013)

(addressing arguments in advance of remand).
4

We disagree with TotalGen’s argument that the trial court erred by denying its

motion, but we conclude that there is no evidence to support the trial court’s 

attorney’s-fee findings under Section 27.009(b). Accordingly, we affirm in part and

render in part, and we remand this case for further proceedings without reaching 

TotalGen’s remaining two issues. See Tex. R. App. P. 47.1. 

II. Discussion

As we have noted before, we review de novo a trial court’s ruling on a TCPA 

motion. UATP Mgmt., LLC v. Leap of Faith Adventures, LLC, No. 02-19-00122-CV, 

2020 WL 6066197, at *2 (Tex. App.—Fort Worth Oct. 15, 2020, pet. filed) (mem. 

op.) (citing Beving v. Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. 

denied)); PNC Inv. Co., v. Fiamma Statler, LP, No. 02-19-00037-CV, 2020 WL 5241190, 

at *3 (Tex. App.—Fort Worth Sept. 3, 2020, no pet.) (mem. op.) (same).

As applicable here, the first step in the TCPA’s burden-shifting analysis is for 

the defendant-movant to show by a preponderance of the evidence that the plaintiff’s 

claim is based on, relates to, or is in response to the movant’s exercise of the right of 

free speech or the right of association. See Tex. Civ. Prac. & Rem. Code Ann.

§ 27.005(b); Ghrist v. MBH Real Estate LLC, No. 02-17-00411-CV, 2018 WL 3060331, 

at *1 (Tex. App.—Fort Worth June 21, 2018, no pet.) (mem. op.). In determining 

whether the TCPA applies, we initially look to the plaintiff’s allegations, Hersh v. 

Tatum, 526 S.W.3d 462, 467 (Tex. 2017), as TotalGen did in its motion. When it is 

clear from the plaintiff’s pleadings that the action is covered by the TCPA, the 
5

defendant need show no more. Id. (“The basis of a legal action is not determined by 

the defendant’s admissions or denials but by the plaintiff’s allegations.”). Only if the 

movant satisfies its burden does the nonmovant, to avoid dismissal, have to establish 

“by clear and specific evidence a prima facie case for each essential element of the 

claim in question.”3 Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Ghrist, 2018 WL 

3060331, at *1. 

As a reminder, the TCPA’s purpose is to encourage and safeguard “the 

constitutional rights of persons to petition, speak freely, associate freely, and 

otherwise participate in government to the maximum extent permitted by law” and, at 

the same time, protect the rights of a person to file meritorious lawsuits for 

demonstrable injury. Tex. Civ. Prac. & Rem. Code Ann. § 27.002; In re Lipsky, 460 

S.W.3d 579, 589 (Tex. 2015) (orig. proceeding) (“The TCPA’s purpose is to identify 

and summarily dispose of lawsuits designed only to chill First Amendment rights, not 

to dismiss meritorious lawsuits.”). It “is a bulwark against retaliatory lawsuits meant 

to intimidate or silence citizens on matters of public concern,” Dallas Morning News, 

Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019), and its purpose of curbing strategic 

3There are three steps in TCPA’s burden-shifting analysis, see generally Beving, 563 

S.W.3d at 404, but because we conclude that TotalGen failed to meet its burden on 

the first step, we do not reach the nonmovant’s clear-and-specific-prima-facie burden

in the second step, in Section 27.005(c), or—if the second step is met—the movant’s 

subsequent burden to establish by a preponderance of the evidence each essential 

element of a valid defense to the nonmovant’s claim, in Section 27.005(d). See Tex. R. 

App. P. 47.1.
6

lawsuits against public participation (SLAPP suits) through a summary process 

involving judicial review of the pleadings and limited evidence, see Lipsky, 460 S.W.3d 

at 589–90, “is not furthered by a construction finding a right of association based

simply on communications between parties with a shared interest in a private business 

transaction.” Palladium Metal Recycling, LLC v. 5G Metals, Inc., No. 05-19-00482-CV, 

2020 WL 4333538, at *5 (Tex. App.—Dallas July 28, 2020, no pet.) (mem. op.). It is

likewise not furthered by applying it to wholly private disputes affecting only the

fortunes of the private parties involved. See Creative Oil & Gas, LLC v. Lona Hills 

Ranch, LLC, 591 S.W.3d 127, 135–37 (Tex. 2019). As we have previously noted, the 

TCPA “is not a Swiss army knife, a tool always ready to obtain the early dismissal of 

every objectionable case or controversy.” Beving, 563 S.W.3d at 408 n.8.

A. TCPA Right of Association

The right to associate is defined in the pre-2019 TCPA as “a communication

[4]

between individuals who join together to collectively express, promote, pursue, or 

4A TCPA “communication” includes making or submitting a statement or 

document in any form or medium, including oral, visual, written, audiovisual, or 

electronic. Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1). No one disputes that the 

basis of TAI’s breach-of-contract claim involves a “communication.” See In re 

IntelliCentrics, Inc., No. 02-18-00280-CV, 2018 WL 5289379, at *4 (Tex. App.—Fort 

Worth Oct. 25, 2018, orig. proceeding) (mem. op.) (“After all, what breach of contract 

action would not find its genesis in communication between the parties?”). But as we 

noted in IntelliCentrics, there is a distinction between communications used as evidence 

to support a claim for breach of contract (i.e., the parties’ sourcing agreement) and a 

claim that is “based upon, relate[d] to, or [] in response to” that communication under 

the TCPA. See id.
7

defend common interests.” Garrison Inv. Grp. LP v. Lloyd Jones Capital, LLC, No. 02-

19-00115-CV, 2019 WL 5996979, at *6 (Tex. App.—Fort Worth Nov. 14, 2019, no 

pet.) (mem. op.) (quoting Section 27.001(2)). An interest is “common” if it is “shared 

by the public or at least a group.” Id. (quoting Kawcak v. Antero Res. Corp., 582 S.W.3d 

566, 576 (Tex. App.—Fort Worth 2019, pet. denied)). But when a communication is 

between private business parties on private business matters and does not involve any

public or citizen participation, it does not implicate the associational rights protected 

by the TCPA. Id.; see Anders v. Oates, No. 02-19-00116-CV, 2020 WL 1809654, at *5 

(Tex. App.—Fort Worth Apr. 9, 2020, no pet.) (mem. op.) (observing that allegations 

of a fraudulent scheme to induce the sale of a business and the execution of a 

promissory note do not fall under the TCPA); Newpark Mats & Integrated Servs., LLC v. 

Cahoon Enters., LLC, 605 S.W.3d 671, 680 (Tex. App.—Houston [1st Dist.] 2020, no 

pet.) (holding that “association” to form a competing business “is a private interest 

that benefits only the private parties involved in the intended business venture” and 

thus does not fall under TCPA); see also Farhat v. Wilson Scott, LLC, No. 02-19-00438-

CV, 2020 WL 1949624, at *3 (Tex. App.—Fort Worth Apr. 23, 2020, no pet.) (mem. 

op.) (“[T]he common interest they joined together to pursue is not an interest that the 

TCPA protects; the ‘common interest’ here is, allegedly, tortfeasors breaching 

fiduciary duties and working together for their own personal benefit rather than an 

interest common to the public or a larger group.”).
8

In its first issue, TotalGen argues that the trial court erred by concluding that 

the breach-of-contract allegations in TAI’s original petition—that “TotalGen gave 

Siouxland all the information about the Equipment” and “actively assisted Siouxland 

in purchasing the Equipment directly from MP”—did not relate to TotalGen’s right 

of association.

5 TotalGen asserts that these complained-of communications were

group communications in the public marketplace for the sale and purchase of power 

generators,

6

that the communications were public because TotalGen had failed to 

keep them private and confidential, and that TotalGen’s communications with 

Siouxland and MP were made to collectively pursue the common interest of closing 

on the sale of the subject power generators. TotalGen further asserts that “generating 

power is of significant interest to the public” beyond the interests of the individuals 

and companies involved in the transaction. 

5TotalGen relied solely on TAI’s original petition in its motion to dismiss, as its 

counsel acknowledged at the hearing, stating, “Our motion raised the pleadings only.”

6TotalGen also invites us to reconsider our analysis in Kawcak in light of a 

dissenting opinion in Segundo Navarro Drilling Ltd. v. San Roman Ranch Mineral Partners, 

Ltd., No. 04-19-00484-CV, 2020 WL 4808716, at *6–11 (Tex. App.—San Antonio 

June 24, 2020, pet. denied) (op. on reh’g) (Chapa, J., dissenting). We note that the 

majority in that case agreed with us, see id. at *4 (“We agree with Kawcak’s thorough 

analysis.”), and we decline the invitation. See also Gaskamp v. WSP USA, Inc., 596 

S.W.3d 457, 476 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (op. on en banc 

reconsideration) (following Kawcak and concluding that “with respect to the preamendment version of the TCPA, the proper definition of ‘common’ in the phrase 

‘common interests’ is ‘of or relating to a community at large: public.’”).
9

But, as pointed out by TAI, the communications at issue involved nothing 

more than an exclusively private, arm’s-length transaction between private parties

involving confidential and proprietary information about the seller and equipment.

TAI’s breach-of-contract claim is based on the disclosure of confidential information 

in the sale of two specific pieces of equipment, and nothing in the alleged

communications addresses a public component or the bigger picture of power 

generation generally, notwithstanding TAI’s self-description as a business that 

conducts transactions worldwide. There is no allegation that TotalGen, Siouxland, or 

MP joined together to collectively express, promote, pursue, or defend any public or 

community interests with regard to the sale, cf. Tex. Civ. Prac. & Rem. Code Ann. 

§ 27.001(2), and, contrary to TotalGen’s assertions, based on TAI’s original petition,

the information was not disclosed “publicly” to the general public marketplace for 

generators but rather to an already interested and involved third-party, Siouxland.

7

7

In its original petition, TAI alleged,

Pursuant to the Sourcing Agreement [with TotalGen], TAI disclosed to 

TotalGen proprietary and confidential information regarding the 

Equipment, including the then-current owner; the technical 

specifications and scope of supply of the Equipment; and the 

commercial terms on which the Equipment was available for purchase 

from MP. . . . TotalGen gave Siouxland all the information about the 

Equipment but failed to obtain [a non-disclosure agreement containing a 

non-circumvention provision]. The Sourcing Agreement also required 

TotalGen to prevent Siouxland from circumventing TAI. TotalGen 

failed to do that, and actively assisted Siouxland in purchasing the 

Equipment directly from MP, without providing for the payment of the

broker’s fee to TAI stipulated in the Sourcing Agreement.
10

Accordingly, because the communications at issue were between private 

business parties on private business matters and did not involve any public aspect, the 

communications did not implicate the associational rights protected by the TCPA, 

and the trial court did not err by denying this portion of TotalGen’s motion. See 

Garrison Inv. Grp. LP, 2019 WL 5996979, at *6; see also Ngo v. Ass’n of Woodwind Lakes 

Homeowners, Inc., No. 01-18-00919-CV, 2020 WL 7391696, at *7 (Tex. App.—Houston 

[1st Dist.] Dec. 17, 2020, no pet. h.) (holding that TCPA’s right of association was not 

implicated in breach-of-contract dispute between HOA and homeowners); SSCP 

Mgmt. Inc. v. Sutherland/Palumbo, LLC, No. 02-19-00254-CV, 2020 WL 7640150, at *5

(Tex. App.—Fort Worth Dec. 23, 2020, no pet. h.) (mem. op. on reh’g) (stating that, 

with regard to breach-of-express-warranty claim and TCPA right of association, the 

appellant did not establish that the TCPA applied when “[m]ost of these activities 

relate[d] to the parties’ private business dealings that they engaged in for their own 

personal profit and not to an interest shared by the public or a group” and the 

appellants failed to establish that the express warranty was contained in marketing 

materials or otherwise related to marketing materials); Segundo Navarro Drilling, Ltd., at 

*4 (“Appellants have not explained how their right to ‘participate in government’ is 

served by defining the word ‘common’ to include their private business interests.”). 

We overrule TotalGen’s first issue.
11

B. TCPA Right of Free Speech

Under the TCPA, the “exercise of the right of free speech” is defined as “a

communication made in connection with a matter of public concern.” Tex. Civ. Prac. 

& Rem. Code Ann. § 27.001(3). A “matter of public concern” includes an issue 

related to (A) health or safety; (B) environmental, economic, or community wellbeing; (C) the government; (D) a public office or public figure; or (E) a good, product, 

or service in the marketplace.” Id. § 27.001(7). A communication made in connection 

with a matter of public concern must have public relevance beyond the pecuniary 

interests of the private parties involved: “A private contract dispute affecting only the 

fortunes of the private parties involved is simply not a ‘matter of public concern’ 

under any tenable understanding of those words.” Creative Oil & Gas, LLC, 591

S.W.3d at 136–37; Anders, 2020 WL 1809654, at *7 (“Creative Oil & Gas makes clear 

that to be a matter of public concern for purposes of the TCPA, the matter must 

involve more than the private pecuniary interests of the parties.”). But because we 

may not narrow the TCPA’s scope by ignoring its plain language, if an alleged 

communication has even a tangential relationship to a matter of public concern, then 

it meets the TCPA’s requirements, and as long as the communication involves a 

public subject, it need not be made in a public form. ExxonMobil Pipeline Co. v. 

Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (per curiam); see Creative Oil & Gas, LLC, 

591 S.W.3d at 135.
12

In its second issue, relying on the same allegations set out above, TotalGen 

argues that the trial court erred by concluding that TotalGen’s right of free speech

was not implicated, contending that these were group communications in the public 

marketplace for the sale and purchase of power generation equipment that TAI had 

hoped to conduct privately and confidentially but that was instead sold and purchased 

in the public marketplace. But as set out above in our association analysis, these 

communications did not take place in the public marketplace; they were private 

communications related to a purely private transaction. To wit, as pointed out by 

TAI, as confidentiality within the transaction was the linchpin of the claim itself, the

communications were inherently not a matter of public concern, notwithstanding 

TotalGen’s argument that “power-generating equipment” is “necessarily related to 

‘environmental, economic, or community well-being.’” The allegations in TAI’s 

original petition mention nothing about how the two pieces of equipment had or 

would have any effect—environmental, economic, or communal—outside of the 

private parties’ business relationship. See Creative Oil & Gas LLC, 591 S.W.3d at 136–

37; see also Goldberg v. EMR (USA Holdings) Inc., 594 S.W.3d 818, 830 (Tex. App.—

Dallas 2020, pet. denied) (op. on reh’g) (holding that private communications were 

not related to a matter of public concern when they involved only private buy–sell 

offers and did not mention the beneficial effects of recycling provided by the scrapmetal industry); Farhat, 2020 WL 1949624, at *6 (“[C]ommunications are not on a 

matter of public concern if the[y] . . . are private communications related to purely 
13

private commercial business or transactions and, through those communications, the 

defendants . . . misappropriate the plaintiff’s confidential information in order to 

pursue the business or transaction.”). Cf. PNC Inv. Co., 2020 WL 5241190, at *5 

(concluding that allegations fell under TCPA because they involved a matter of public 

concern beyond the private parties’ pecuniary interests as, “at every level,” the 

redevelopment project was “undergirded by the public fisc”); Nguyen v. ABLe 

Commc’ns, Inc., No. 02-19-00069-CV, 2020 WL 2071757, at *5 (Tex. App.—Fort 

Worth Apr. 30, 2020, no pet.) (mem. op.) (holding communications fell under the 

TCPA when they were on an issue related to the government—DFW and its public 

bidding process—involving concerns with public relevance beyond the private parties’

pecuniary interests); Rogers v. Soleil Chartered Bank, No. 02-19-00124-CV, 2019 WL 

4686303, at *1 (Tex. App.—Fort Worth Sept. 26, 2019, no pet.) (mem. op.)

(describing the “routine [TCPA free-speech] scenario: one party is dissatisfied with 

another’s services, the dissatisfied party posts negative information on the internet, 

the service provider considers the posted statements defamatory and sues, and the 

dissatisfied party (now the defendant) invokes the TCPA”). Accordingly, the trial 

court likewise did not err by denying the motion on the free-speech ground, and we 

overrule TotalGen’s second issue.

C. Attorney’s Fees

In its final issue, TotalGen argues that the trial court erred, as a matter of law, 

by awarding attorney’s fees to TAI under Section 27.009(b) because its motion to 
14

dismiss was not frivolous but rather based on both facts and law and was not “solely” 

intended to delay. TotalGen points out that construction of the statute has “ebbed 

and flowed” to the extent that “a construction one day of a word or phrase in the 

TCPA could be correct on that day but wrong the next.” TAI responds that it proved 

that TotalGen’s TCPA motion was both frivolous and intended solely for delay.

Under Section 27.009(b), “[i]f the court finds that a motion to dismiss filed 

under this chapter is frivolous or solely intended to delay, the court may award court 

costs and reasonable attorney’s fees to the responding party.” Tex. Civ. Prac. & Rem. 

Code Ann. § 27.009(b) (emphasis added). Such an award is entirely discretionary if 

the trial court finds that the motion is frivolous or solely intended to delay. Lei v. Nat.

Polymer Int’l Corp., 578 S.W.3d 706, 717 (Tex. App.—Dallas 2019, no pet.). “In the 

absence of a finding that the motion to dismiss was ‘filed with the sole intention of 

delaying the proceedings,’ ‘an award of attorneys’ fees is not authorized by the 

statute.’” Stallion Oilfield Servs. Ltd. v. Gravity Oilfield Servs., LLC, 592 S.W.3d 205, 221–

23 (Tex. App.—Eastland 2019, pets. denied) (holding that there was no statutory basis 

to support the award of attorney’s fees under Section 27.009(b) when the trial court

abused its discretion by determining that the motion was frivolous and “did not find 

that the motion to dismiss was solely intended to delay” (emphasis added)); see Abatecola 

v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *16 

(Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.) (“[T]he trial 

court improperly ruled that 2 Savages and Lowry were entitled to attorney’s fees 
15

without finding that the motion to dismiss was frivolous or was solely intended to 

delay.”); see also Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 95 (Tex. 1999) (op. on 

reh’g) (“We have consistently held that a prevailing party cannot recover attorney’s 

fees from an opposing party unless permitted by statute or by contract between the 

parties.”).

In its order denying TotalGen’s motion, the trial court stated,

[T]he Court considered . . . TotalGen[’s] . . . Motion to Dismiss Pursuant 

to the [TCPA], . . . [TAI’s] Response thereto and Request for Attorney’s 

Fees, as well as [TotalGen’s] Reply and [TAI’s] Surreply and Emergency 

Motion to Strike Defendant’s Late-Filed Motion to Dismiss under 

[TCPA], First Amended Answer, and Affidavit of R. Nick Cioll, as well 

as additional briefing requested. After considering the Motion, the 

response thereto, the pleadings, the evidence on file with the Court, and 

the arguments of counsel, the Court finds that the Motion should be and 

is hereby DENIED. The Court further finds that the Motion is frivolous, 

intended for delay, and that [TAI]’s Counsel shall submit proof of 

reasonable attorney’s fees by affidavit within five (5) business days of the 

date of this order, at which time the Court will issue its final order 

awarding attorneys’ fees pursuant to [Section] 27.009. [Emphasis 

added.]

The trial court did not find that TotalGen’s motion was filed “solely” for delay as 

required by the statute.8 See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(b). 

Accordingly, we sustain this portion of TotalGen’s final issue and turn to whether the 

8Because the trial court’s “delay” finding is insufficient as a matter of law, we 

will not address TAI’s arguments that TotalGen used “procedural ambush tactics”

and “made the conscious decision to lie behind the log and assert evidence and 

defense only days before the hearing” other than to note that e-filing permitted both 

parties to file documents outside of standard court business hours, as well as, in TAI’s 

case, minutes before the hearing.
16

attorney’s fee award can be salvaged on the basis of the trial court’s finding that the 

motion was frivolous.

The TCPA does not define “frivolous,” but our sister courts that have 

addressed the issue have noted that the “common understanding” of the word 

“contemplates that a claim or motion will be considered frivolous if it has no basis in 

law or fact and lacks a legal basis or legal merit.” Marrujo v. Wisenbaker Builder Servs., 

Inc., No. 01-19-00056-CV, 2020 WL 7062318, at *11 (Tex. App.—Houston [1st Dist.] 

Dec. 3, 2020, no pet.) (mem. op.) (quoting Sullivan v. Tex. Ethics Comm’n, 551 S.W.3d 

848, 857 (Tex. App.—Austin 2018, pet. denied), and citing Caliber Oil & Gas, LLC v. 

Midland Visions 2000, 591 S.W.3d 226, 243 (Tex. App.—Eastland 2019, no pet.), and 

Lei, 578 S.W.3d at 717, as following Sullivan). The fact that a TCPA motion to dismiss 

is ultimately denied is not sufficient, standing alone, to support a finding that the

motion was frivolous. Id. at *12 (citing Caliber Oil, 591 S.W.3d at 244).

If there is at least a colorable basis for the TCPA motion, then it is not 

frivolous. Id. In Marrujo, the appellee sued the appellants—a former employee and 

her new employer—in August 2018 for violation of a non-compete agreement, raising 

breach-of-contract and tortious interference claims, and the appellants filed a TCPA 

motion to dismiss based on the exercise of the rights of free speech, association, and 

petition. Id. at *1–3, *8. The trial court denied the motion and also denied the 

appellee’s request for attorney’s fees under Section 27.009(b). Id. at *1, *4. The

Marrujo court affirmed the order denying the motion to dismiss but also concluded 
17

that the trial court’s denial of the attorney’s fee request was not an abuse of discretion 

because the state of the law had been unclear when the appellants filed their TCPA 

motion in 2018. Id. at *12. When the appellants filed their motion in that case, the

supreme court had not yet decided Creative Oil & Gas, LLC (delivered December 20,

2019), and the Marrujo court did not issue its en banc decision in Gaskamp until 

February 20, 2020. Id. Accordingly, there had been “at least a colorable basis” for the 

motion because those dispositive cases had not yet been decided. Id.

If, by the time a TCPA motion is filed, sufficient discovery has been taken and 

evidence shown to the trial court to support all of the pleaded causes of action, the 

trial court does not abuse its discretion by finding that the motion is frivolous. Lei, 

578 S.W.3d at 718. For example, in Lei, by the time that the appellants filed their 

TCPA motion, discovery had already been undertaken and the trial court had already 

heard evidence—including testimony and forensic evidence—at an injunction hearing

that was sufficient to establish a prima facie case on each of the appellee’s causes of

action. Id. at 717–18.

Here, TAI filed its original petition on August 16, 2019—half a year after this 

court issued its opinion in Kawcak on February 21, 2019, and some three months after

the supreme court denied the petition for review on May 10, 2019. See 582 S.W.3d at 

566. However, in Kawcak, we did not determine how large a group “crosses the 

boundary of common” and held that “the interests of two conspirators who join 
18

together to commit a tort do not cross the threshold of common,” id. at 576 (emphasis 

added), which is not exactly on point in this breach-of-contract case.

TotalGen filed its motion to dismiss on October 25, 2019. We decided 

Garrison on November 14, 2019, see 2019 WL 5996979, at *1, which, under the Texas

Rules of Appellate Procedure, meant the losing party had until December 29, 2019, 

assuming no motion for rehearing was filed, to file a petition for review in the 

supreme court. See Tex. R. App. P. 53.7(a). 

At the December 12, 2019 hearing on TotalGen’s TCPA motion, TAI’s 

counsel admitted that “none of the Second Court of Appeals [cases] have dealt with 

just a breach[-]of[-]contract issue” but argued that the issue was “relatively decided,”

relying on Garrison, which “was just decided the other day.” And Creative Oil & Gas, 

LLC was not decided until December 20, 2019. See 591 S.W.3d at 127. Accordingly, 

there was at least a colorable basis for the motion at the time that TotalGen filed it in 

October 2019. See Marrujo, 2020 WL 7062318, at *12. And although TAI argues on 

appeal that TotalGen knew that TAI had sufficient evidence to build a prima facie 

case “well before bringing its motion to dismiss,” that evidence had not been heard by 

the trial court prior to the December hearing. Cf. Lei, 578 S.W.3d at 717–18. 

Accordingly, we conclude that the trial court abused its discretion by finding that 

TotalGen’s motion was frivolous, and we sustain the remainder of TotalGen’s fifth 

issue.
19

III. Conclusion

Having concluded that TotalGen did not meet its initial burden to show by a 

preponderance of the evidence that TAI’s breach-of-contract claim fell under the 

TCPA, we overrule TotalGen’s first and second issues and affirm the portion of the 

trial court’s order denying the TCPA motion. But having concluded that the trial 

court abused its discretion regarding the award of attorney’s fees to TAI under 

Section 27.009(b), we sustain TotalGen’s fifth issue, strike that portion of the order, 

and remand the case for further proceedings.

/s/ Bonnie Sudderth

Bonnie Sudderth

Chief Justice

Delivered: January 21, 2021