                              Fourth Court of Appeals
                                     San Antonio, Texas
                                 MEMORANDUM OPINION

                                          No. 04-19-00194-CV

              Champe CARTER, Erin Bailey Carter, Paige Parker, and Melanie Parker,
                                        Appellants

                                                   v.

                                          Gregory Robert BALL,
                                                Appellee

                    From the 216th Judicial District Court, Gillespie County, Texas
                                       Trial Court No. 15522
                           Honorable N. Keith Williams, Judge Presiding

Opinion by:       Beth Watkins, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Rebeca C. Martinez, Justice
                  Beth Watkins, Justice

Delivered and Filed: October 9, 2019

AFFIRMED

           Appellants Champe Carter and Erin Bailey Carter (collectively, “the Carters”) and Paige

Parker and Melanie Parker (collectively, “the Parkers”) appeal the portion of the trial court’s order

failing to award them attorney’s fees, court costs, and sanctions after it granted their motions to

dismiss pursuant to the Texas Citizens Participation Act (“TCPA”). Appellee Gregory Robert Ball

contends, however, that the Carters and the Parkers waived that recovery by failing to present

evidence of their attorney’s fees, court costs, and sanctions to the trial court. Ball also complains
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in a cross-point that the trial court should have denied the Carters’ and the Parkers’ motions to

dismiss. We affirm the trial court’s order.

                                           BACKGROUND

       Ball sued the Carters and the Parkers for defamation per se, business disparagement,

invasion of privacy, and intentional infliction of emotional distress. He alleged that “one or more

of the Defendants” told third parties that Ball had committed assault and sexual assault, was a

sexual predator, and had exhibited violence against women. He also alleged that the defendants

had created false online profiles in his name that they then used to disparage him.

       The Carters filed a motion to dismiss Ball’s claims pursuant to the TCPA, arguing that

Ball’s allegations implicated their exercise of the right of free speech. TEX. CIV. PRAC. & REM.

CODE ANN. § 27.003. The TCPA defines “exercise of the right of free speech” as “a

communication made in connection with a matter of public concern,” and further defines “matter

of public concern” as, inter alia, “an issue related to: (A) health or safety; [or] (B) environmental,

economic, or community well-being.” Id. at § 27.001(3), (7). The Carters argued that their alleged

statements satisfied this definition because they “related to safety of women and individuals in the

community.” They argued that the TCPA mandated dismissal because: (a) Ball could not establish

by clear and specific evidence a prima facie case for each essential element of any of his claims;

and (b) Ball’s defamation claim was barred by the statute of limitations. Id. at § 27.005. The

Parkers later filed an additional motion to dismiss, which essentially repeated the Carters’

arguments.

       Ball responded to both motions, arguing: (a) the statute of limitations on his defamation

claim had been tolled while his attorney was recovering from a serious injury; and (b) his

defamation per se, business disparagement, and invasion of privacy claims were “clearly exempt




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from the scope of the TCPA.” He did not attach any evidence to his responses or provide more

factual details about his claims.

         On February 5, 2019, the trial court held a hearing on the motions to dismiss. During that

hearing, Ball sought permission to present live testimony in support of his claims. The Carters and

the Parkers argued, however, that the trial court was only permitted to consider pleadings and

affidavits. The trial court agreed and denied Ball’s request, stating, “[t]here’s no testimony allowed

at this hearing.” 1 Ball then sought permission to submit an affidavit in support of his claims, but

the Carters and the Parkers again objected, arguing that they had “spent a long time preparing for

this [hearing] based upon the documents that were filed and of record, Your Honor. It’s a

completely different hearing if [Ball] has an affidavit.” The court denied Ball’s request to submit

an additional affidavit, and announced that it would not allow either side “to submit anything

further” in connection with the motions because the parties had not shown good cause to submit

additional evidence. 2

         Even though the Carters and the Parkers had successfully urged the trial court to deny

Ball’s request to present additional evidence, at the end of the hearing they asked for permission

to submit evidence of attorney’s fees, court costs, and sanctions:

         MR. MOSTY: Well, the only thing I would ask, Your Honor, is there is a
         mandatory attorney’s fees provision.

         THE COURT: There’s a what?
1
  The TCPA requires the trial court to consider “pleadings and supporting and opposing affidavits stating the facts on
which the liability or defense is based,” but it does not expressly prohibit the consideration of additional evidence.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.006. While this court has previously noted that “[t]he trial court does not
hear live testimony” during a TCPA hearing, other courts of appeals have held that a trial court may consider live
testimony and documentary evidence in addition to pleadings and affidavits. Compare Quintanilla v. West, 534
S.W.3d 34, 42 (Tex. App.—San Antonio 2017, pet. granted), rev’d on other grounds, 573 S.W.3d 237 (Tex. 2019),
with Batra v. Covenant Health Sys., 562 S.W.3d 696, 707 (Tex. App.—Amarillo 2018, pet. denied) (live testimony at
TCPA hearing is permitted “in determining whether to grant or deny” the motion), and Ramsey v. Lynch, No. 10-12-
00198-CV, 2013 WL 1846886, at *3 (Tex. App.—Waco May 2, 2013, no pet.) (reviewing live testimony of attorney’s
fees offered during TCPA hearing).
2
  The TCPA permits a trial court to “allow specified and limited discovery relevant to the motion” upon a showing of
good cause. TEX. CIV. PRAC. & REM. CODE § 27.006.


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        MR. MOSTY: Mandatory attorney’s fees provision if you do dismiss the case. My
        clients have fought this now two times. 3 I would love to go into the facts about Mr.
        Ball like Mr. Chapman has, because you have heard barely one side of the story.
        And so the question that I have for the Court is, there is no provision as to how
        attorney’s fees are to be submitted in the statute, whether it’s by affidavit after the
        hearing, and some of the cases they remand for a second hearing. And so whether
        the Court would consider that, and if so, how that testimony—

        THE COURT: I’m going to make my decisions based upon—everything I’m
        going to decide and everything pertaining to my rulings in this case as set forth
        on—is based upon what I have currently on file.

        MR. MOSTY: Okay. So just for the record, you’re denying any additional
        testimony on attorney’s fees? And I don't mean to—I understand your ruling, I just
        want—

        THE COURT: Well, the answer is yes.

        MR. MOSTY: Okay.

        THE COURT: But I don’t know what—I don’t—at this moment, this—this is a
        serious matter and I want to—I’m taking it seriously. And I—I’m just telling you
        that the decision I make will be based on what I have before me today.

        MR. MOSTY: I understand.

The Carters and the Parkers did not present any affidavits in support of their claim for attorney’s

fees, court costs, and sanctions before or during the hearing. Nor did they attempt to make an offer

of proof or file a bill of exception with evidence to establish the amounts.

        After taking the matter under advisement, the trial court signed an order dismissing all of

Ball’s claims against the Carters and the Parkers pursuant to the TCPA. The trial court’s order

recites that there was no good cause shown to allow further evidence or affidavits to be submitted.

It also notes that “[n]o attorney fees are awarded against [Ball] in favor of [the Carters and the

Parkers] inasmuch as [the Carters and the Parkers] withdrew their requests for attorney fees at the



3
 The record does not show that these parties had engaged in any previous litigation under the TCPA. Attorney Mosty’s
statement appears to be a reference to previous proceedings between these parties under Texas Rule of Civil Procedure
202, which allows parties to seek authorization to take pre-suit depositions. TEX. R. CIV. P. 202.1.


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hearing.” The order is silent as to court costs and sanctions. None of the parties filed any post-

judgment motions complaining of the trial court’s refusal to hear additional evidence, asking the

court to correct or modify its order, or explaining that they did not, in fact, withdraw their requests

for attorney’s fees. The Carters and the Parkers timely filed a notice of appeal, but Ball did not.

                                                      ANALYSIS

           Ball’s Cross-Point Challenging the Trial Court’s Dismissal Under the TCPA

         In a cross-point, Ball challenges the trial court’s dismissal of his claims and asks us to

vacate “the entire order of February 28, 2019” and remand this cause to allow “the defamation

case against all Defendants [to] proceed in District Court.” He also complains that the trial court

abused its discretion by refusing to consider an affidavit he filed after the hearing. 4 Because these

complaints seek to alter the trial court’s order, Ball was required to file a notice of appeal. TEX. R.

APP. P. 25.1(c); Wiedenfeld v. Markgraf, 534 S.W.3d 14, 16 (Tex. App.—San Antonio 2017, no

pet.). He did not—indeed, his brief notes that he “ultimately chose not to appeal.” As a result, we

“may not grant [him] more favorable relief than did the trial court except for just cause.” TEX. R.

APP. P. 25.1(c); see also TEX. GOV’T CODE ANN. § 311.016(5) (“‘May not’ imposes a prohibition

and is synonymous with ‘shall not.’”).

         Ball cites unspecified “financial considerations” as the first of two reasons why he chose

not to appeal the trial court’s order of dismissal. However, he does not explain what those

considerations are or why they might justify granting him more favorable relief than the trial court

did. Ball then contends that he chose not to file his own notice of appeal because “the statute of




4
 While the trial court’s order supports Ball’s assertion that he submitted an evidentiary affidavit after the hearing, that
affidavit does not appear in the appellate record. Instead, Ball attached it to his brief as an appendix. This court must
decide cases based on the appellate record as filed, and may not consider documents attached as appendices to briefs.
See, e.g., In re W.T.H., No. 04-16-00055-CV, 2017 WL 603649, at *1 n.1 (Tex. App.—San Antonio Feb. 15, 2017,
no pet.); Briggs v. Toyota Mfg. of Tex., 337 S.W.3d 275, 283 n.8 (Tex. App.—San Antonio 2010, no pet.).


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limitations had not run against” the defendant he identifies as “the primary offender” in allegedly

defaming him. However, he does not explain why that assertion, even if true, constitutes just cause

under Rule 25.1.

         Because Ball has not explained why his proffered reasons for failing to file a notice of

appeal constitute “just cause,” the challenges he asserts to the trial court’s order are not properly

before this court. TEX. R. APP. P. 25.1(c), 38.1. Since we cannot consider his complaints, we affirm

the trial court’s order of dismissal. See Dwairy v. Lopez, 243 S.W.3d 710, 714 (Tex. App.—San

Antonio 2007, no pet.).

     The Carters’ and the Parkers’ Claims for Attorney’s Fees, Court Costs, and Sanctions

         The Carters and the Parkers argue that because the trial court granted their motions to

dismiss, the TCPA mandated an award of attorney’s fees, court costs, and sanctions in their favor.

Ball responds that the Carters and the Parkers waived the right to recover attorney’s fees, court

costs, and sanctions.

                                                Standard of review

         This court reviews the amount of a trial court’s award of attorney’s fees and sanctions

under the TCPA for abuse of discretion. 5 See Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex.

2016) (attorney’s fees); Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220, 232–33 (Tex. App.—

Austin 2018, no pet.) (sanctions). However, error may not be predicated on a ruling excluding

evidence unless the complaining party both objects to the trial court’s ruling and informs the court



5
  The Carters and the Parkers characterize the denial of their request for attorney’s fees, court costs, and sanctions as
a partial denial of their motions to dismiss that is subject to de novo review. However, the right to dismissal and the
right to attorney’s fees, court costs, and sanctions are controlled by two different sections of the TCPA. Compare TEX.
CIV. PRAC. & REM. CODE § 27.003, with id. at § 27.009. When a trial court grants a motion to dismiss pursuant to the
TCPA—as it did here—the movant has received all of the relief to which he is entitled under section 27.003. Paulsen
v. Yarrell, 455 S.W.3d 192, 195–96 (Tex. App.—Houston [1st Dist.] 2014, no pet.). As a result, a ruling denying a
request for attorney’s fees under section 27.009 does not constitute a denial of a motion to dismiss under section
27.003. See id.


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of the substance of the evidence through an offer of proof or a bill of exception. TEX. R. EVID.

103(a)(2); TEX. R. APP. P. 33.1, 33.2; In re L.L., 341 S.W.3d 22, 26 (Tex. App.—San Antonio

2010, no pet.). When an offer of proof or a bill of exception is required, failure to satisfy that step

“waives any complaint about the excluded evidence on appeal.” Singh v. Payan, No. 04-17-00111-

CV, 2018 WL 4096402, at *3 (Tex. App.—San Antonio Aug. 29, 2018, no pet.) (internal quotation

marks omitted).

                                                   Applicable law

         The version of the TCPA in place at the time of the hearing provided that a trial court shall

award a successful movant:

         (1) court costs, reasonable attorney’s fees, and other expenses incurred in defending
         against the legal action as justice and equity may require; and

         (2) sanctions against the party who brought the legal action as the court determines
         sufficient to deter the party who brought the legal action from bringing similar
         actions[.] 6

TEX. CIV. PRAC. & REM. CODE § 27.009(a). “‘Statutes providing that a party . . . shall be awarded

attorney fees are not discretionary.’” Doades v. Syed, 94 S.W.3d 664, 674 (Tex. App.—San

Antonio 2002, no pet.) (quoting Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998)) (internal

quotation marks omitted). Nevertheless, “even a mandatory award of attorney’s fees must be

supported by evidence. ‘[T]o rule . . . without supporting evidence’ constitutes an abuse of

discretion.” Id.; see also De Leon v. Vela, 70 S.W.3d 194, 201–02 (Tex. App.—San Antonio 2001,

pet. denied). When “nothing in [a mandatory fee statute] modifies the general rule that the party

seeking fees must present evidence of such fees to be entitled to their award,” an award of fees in



6
  After the trial court signed its order in this case, the Legislature amended the TCPA to provide that a trial court may,
but is not required to, award sanctions to a successful moving party. Act of May 17, 2019, 86th Leg., R.S., H.B. 2730,
§ 8, sec. 27.009(a)(2) (current version codified at TEX. CIV. PRAC. & REM. CODE § 27.009(a)(2)). This amendment
took effect on September 1, 2019, and nothing in the statute indicates that the changes apply retroactively. In any
event, however, none of the parties have argued that this amendment affects the disposition of this case.


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the absence of evidence is reversible error. De Leon, 70 S.W.3d at 201–02 (citing Tibbetts v.

Gagliardi, 2 S.W.3d 659, 665 (Tex. App.—Houston [14th Dist.] 1999, pet. denied)). A trial court

does not abuse its discretion by failing to award fees—even statutorily mandated fees—when a

party does not meet its evidentiary burden to demonstrate the reasonableness of the fees it seeks.

Dilston House Condo. Ass’n v. White, 230 S.W.3d 714, 718–19 (Tex. App.—Houston [14th Dist.]

2007, no pet.); cf. Varner v. Cardenas, 218 S.W.3d 68, 70 (Tex. 2007) (“We decline the invitation

to allow two trials on attorney’s fees when one will do.”).

       The Texas Supreme Court has recognized that “[t]here are ‘important prudential

considerations’ behind our rules on preserving error.” Mansions in the Forest, L.P. v. Montgomery

Cty., 365 S.W.3d 314, 317 (Tex. 2012) (quoting In re B.L.D., 113 S.W.3d 340, 350 (Tex. 2003)).

Compliance with these rules conserves judicial resources, allows for more accurate appellate

review of litigants’ complaints, and prevents litigants from waiving or consenting to an error at

trial and then surprising their opponents by raising that same error on appeal. Id. When a complaint

centers on a trial court’s refusal to consider evidence, preservation of error through an offer of

proof or a bill of exception “serves the dual purpose of allowing the trial court to reconsider its

ruling on the objection in light of the evidence and assisting the appellate court in reviewing the

trial court’s ruling.” Singh, 2018 WL 4096402 at *2.

                                           Application

       Because the trial court dismissed Ball’s claims pursuant to the TCPA, the Carters and the

Parkers were statutorily entitled to an award of reasonable attorney’s fees, court costs, and

sanctions. TEX. CIV. PRAC. & REM. CODE § 27.009(a); Sullivan, 488 S.W.3d at 295. However, our

analysis does not end there. See De Leon, 70 S.W.3d at 201–02. Even when a statutory scheme

provides that a successful movant “shall” recover attorney’s fees, the movant must still present

evidence to support that recovery. See id.; cf. Garcia v. Gomez, 319 S.W.3d 638, 641–42 (Tex.


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2010) (holding attorney’s testimony sufficient to support statutorily mandated fee award because

it was not “merely conclusory”).

       We find no precedent governing this specific factual scenario under the TCPA. We do,

however, find cases addressing this scenario under other mandatory fee statutes. Like the TCPA,

the statute requiring service of expert reports in medical malpractice cases contains a provision

mandating an award of reasonable attorney’s fees and court costs to the successful movant. TEX.

CIV. PRAC. & REM. CODE ANN. § 74.351(b); see also TEX. REV. CIV. STAT. ANN. art. 4590i

§ 13.01(e) (the predecessor to section 74.351(b)). In De Leon, this court affirmed a trial court’s

dismissal of a plaintiff’s medical malpractice claim for failure to file an adequate expert report. De

Leon, 70 S.W.3d at 196. After dismissing the plaintiff’s claim, the trial court awarded attorney’s

fees and court costs to the defendant physician. Id. Even though we affirmed the dismissal of the

plaintiff’s claim, we also held that “nothing in the record supports an award of attorney’s fees or

costs” because the defendant physician “failed to provide testimony, affidavits, billing records, or

anything else that would support” the award. Id. at 202. Because nothing in the mandatory fee

statute provided for an award in the absence of such evidence, we reversed the trial court’s award

of attorney’s fees and court costs and, without remanding the cause, rendered a take-nothing

judgment on that issue. Id. at 201–02 (applying art. 4590i § 13.01(e)); see also Tibbetts, 2 S.W.3d

at 665 (reversing fees awarded under a mandatory fee statute for lack of supporting evidence);

Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App.—Fort Worth 1998, no pet.) (refusing to

remand attorney’s fees issue where party entitled to statutorily mandated award “did not show

diligence in attempting to produce the evidence in a timely fashion.”).

       The same result is appropriate here. Although the relevant version of the TCPA provided

for a mandatory award of attorney’s fees, court costs, and sanctions, nothing in its language

modified the general rule that a fee award must be supported by evidence. TEX. CIV. PRAC. & REM.


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CODE § 27.009(a). As a result, the Carters and the Parkers bore the burden to present evidence

establishing the amount of a reasonable award. See De Leon, 70 S.W.3d at 201–02. Nothing in the

record shows that they presented any evidence of their attorney’s fees or court costs—or the

appropriate amount of sanctions—either before, during, or after the February 5, 2019 hearing. See

id.; TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2). Additionally, they did not bring any complaint

to the trial court’s attention when its order recited that they had withdrawn their request for

attorney’s fees. 7

           The Carters and the Parkers do not dispute that they did not present any evidence to support

the awards they seek. Instead, they argue that the trial court denied them an opportunity to present

their evidence, noting that “[t]he Trial Court’s order stated incorrectly that [they] had withdrawn

their request for attorneys’ fees at the hearing when in fact they had not been granted authorization

to present any evidence on attorneys’ fees.” We construe this as an argument that the trial court

abused its discretion by refusing to hear their evidence. TEX. R. APP. P. 38.1(f). But in order to

preserve that complaint for appellate review, the Carters and the Parkers must show that they

informed the trial court of the substance of their evidence, either through an offer of proof made

during the hearing or a bill of exception filed after the hearing. TEX. R. APP. P. 33.2; TEX. R. EVID.

103(a)(2); Hunters Mill Ass’n, Inc. v. Beres, No. 04-17-00044-CV, 2017 WL 4014619, at *3 (Tex.

App.—San Antonio Sept. 13, 2017, no pet.); Elite Door & Trim, Inc. v. Tapia, 355 S.W.3d 757,

768 (Tex. App—Dallas 2011, no pet.). They have not made this showing. We therefore hold that

the Carters and the Parkers have not preserved their claim to attorney’s fees, court costs, and

sanctions for our review. TEX. R. APP. P. 33.2; TEX. R. EVID. 103(a)(2); Singh, 2018 WL 4096402

at *3; De Leon, 70 S.W.3d at 201–02.



7
    We note the record does not support the trial court’s finding that the request was withdrawn.


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                                     CONCLUSION

We affirm the trial court’s order.

                                           Beth Watkins, Justice




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