Opinion filed March 5, 2020




                                                In The

            Eleventh Court of Appeals
                                            __________

                                     No. 11-19-00152-CV
                                         __________

             BORDERLINE MANAGEMENT, LLC, Appellant
                                                   V.
                                SUZANN RUFF, Appellee

                          On Appeal from the 29th District Court
                                Palo Pinto County, Texas
                             Trial Court Cause No. C46164-1


                          MEMORANDUM OPINION
        This appeal arises out of a dispute between Suzann Ruff and her son, Michael
Ruff, over Michael’s control and disposition of over 4,600 acres of real property in
Palo Pinto County (the Palo Pinto Property). 1 However, the Palo Pinto Property is
not the only property that Suzann and Michael are fighting over, and when this suit
was filed, Suzann had already sued Michael in the Dallas County Probate Court



        1
          Because several individuals involved in this dispute have the same surname, we will refer to them
by their first names in this opinion.
No. 1. Michael successfully moved to compel arbitration of those claims, and the
trial court stayed this case during the arbitration proceedings.
        The arbitration panel found that Michael owed a fiduciary duty to Suzann and
committed fraud, misapplication of fiduciary property, conversion, and negligence.
The arbitration panel awarded Suzann $49,000,000 and imposed a constructive trust
in Suzann’s favor (1) on Michael’s interests “of whatever nature, in any entity which
he formed or invested, in whole or in part with monies or property misappropriated
from, and originating with” Suzann and (2) on “any real property belonging to or
originating from property belonging to [Suzann], in all her capacities, and held or
owned, in whole or in part, by [Michael], in any capacity, relating in any way to the
so-called Palo Pinto County, Texas, properties.” The arbitration panel listed specific
properties that were subject to the constructive trust, including “4,683 acre real
property asset located in Palo Pinto County, Texas.”
        Suzann filed a second amended petition in this case that named Michael; Mark
Ruff, who is Suzann’s son and Michael’s brother; two trusts; and fifteen entities,
including Borderline Management, LLC, as defendants. More than a year after it
was served with Suzann’s second amended petition, Borderline filed a motion to
dismiss pursuant to the Texas Citizens Participation Act. TEX. CIV. PRAC. & REM.
CODE ANN. §§ 27.001–.011 (West 2015) (the TCPA). 2 The trial court denied the
motion to dismiss, determined that the motion was frivolous and solely intended to
delay, and awarded Suzann attorney’s fees in the amount of $14,355.



        2
          The Texas legislature amended the TCPA effective September 1, 2019. See Act of May 17, 2019,
86th Leg., R.S., ch. 378, §§ 1–9, 12 (H.B. 2730) (to be codified at TEX. CIV. PRAC & REM CODE ANN.
§§ 27.001, .003, .005–.007, .0075, .009–.010). Because the underlying lawsuit was filed prior to
September 1, 2019, the law in effect before September 1 applies. See id. §§ 11–12. For convenience, all
citations to the TCPA in this opinion are to the version of the statute prior to September 1, 2019. See Act
of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–64, amended by Act of May 24,
2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500.


                                                    2
      In its first three issues, Borderline asserts that the trial court erred when it
determined that the motion to dismiss was untimely, that Borderline failed to
demonstrate good cause to extend the time to file the motion to dismiss, and that
Borderline failed to establish that the TCPA applies to Suzann’s claims. In its fourth
issue, Borderline requests that this court “render a dismissal as a matter of law in
Borderline’s favor” because Suzann failed to establish by clear and specific evidence
a prima facie case for each essential element of her claims. In its final issue,
Borderline argues that the trial court erred when it awarded attorney’s fees to Suzann
because the motion to dismiss was neither frivolous nor solely intended to delay and
because Suzann failed to provide sufficient evidence of reasonable attorney’s fees.
      We reverse the trial court’s award of attorney’s fees in the amount of $14,355
and remand the issue of the amount of attorney’s fees to be awarded to Suzann to
the trial court for further proceedings. We affirm the trial court’s order in all other
respects.
                                 Background Facts
      Because the issue in this appeal is whether the trial court erred when it denied
Borderline’s motion to dismiss, we do not set out an exhaustive recitation of the
litigation between Michael and Suzann.          Rather, we start with Borderline’s
formation and focus on Suzann’s claims against Borderline.
      The arbitrators issued the award in Suzann’s favor on December 7, 2017. On
January 12, 2018, the probate court signed an order in which it prohibited Michael
“from moving any assets currently under his control exceeding $50,000, including
assets of entities of which he is the president, manager, or president or manager of
the general partner, all of which are now subject to the AAA imposed constructive
trust.” On January 11, 2018, the trial court ordered Michael to produce documents
relevant to the Palo Pinto Property by January 15, 2018, and to sit for deposition on


                                          3
January 18, 2018, and ordered one of the entity defendants to produce a corporate
representative for deposition on January 19, 2018.3
       On January 23, 2018, Matthew Zucker, who is affiliated with Michael’s
attorney’s law firm, filed a certificate of formation for Borderline with the Texas
secretary of state. Mark is the only member of Borderline, and Greg Ginn, an
accountant, is its sole manager. Michael resigned as the manager of certain entities
involved in the development of the Palo Pinto Property, and Borderline became the
manager of those entities. Michael, however, remained in effective control of the
entities.
       Suzann filed the second amended petition on February 14, 2018, and the third
amended petition on February 21, 2018. Borderline was served with the second
amended petition on March 1, 2018. In both the second and third amended petitions,
Suzann alleged that the case involved her “entrustment of the care and management
of her assets” to Michael and “his systematic misappropriation of those assets for his
own personal purposes and pecuniary gain.”                         Suzann alleged that the “other
defendants” had “assisted and participated in [Michael’s] conduct.” Suzann made
detailed allegations about the accumulation of wealth by her and her husband,
Arthur; Arthur’s death; her decision to entrust her assets to Michael; and Michael’s
misappropriation of the assets, including the Palo Pinto Property. Suzann asserted
that Michael created “the various entity defendants” to further his scheme to hide
Suzann’s assets and that, even after the arbitration award, he “continued to use these
entities, now with the assistance of his brother Mark, to do so.” In both petitions,
Suzann asserted claims for (1) breach of fiduciary duty against Michael and “any of
the entity defendants holding constructive trust property,” (2) knowing participation
in Michael’s breach of fiduciary duty against “[a]ll of the entity [d]efendants” and


       3
        This order is not in the appellate record, but is referenced in the evidence relied upon by the parties.
                                                      4
Mark, (3) conspiracy against “[e]ach of the entity [d]efendants” to commit the
“misdeeds” found in the arbitration award and the “continuing breaches of fiduciary
duty,” and (4) fraudulent conveyance of the Palo Pinto Property against Michael, “in
conspiracy with and through other [d]efendants.”4
        Borderline filed its original answer and special exceptions to Suzann’s third
amended petition on March 26, 2018. Borderline objected that Suzann had not
sufficiently pleaded any of her claims against Borderline.
        On June 11, 2018, Suzann filed a fourth amended petition. As relevant to this
appeal, Suzann added factual allegations that the “other defendants” had benefited
from Michael’s wrongful conduct and were “holding or otherwise in possession of”
the assets that Michael had misappropriated; that Michael created as many as 300
entities to hide Suzann’s assets; that, after the arbitration award, Michael had used
Suzann’s “assets and money to create new entities to further his ongoing scheme,
including Defendant Borderline”; that Michael controlled these entities; and that
these entities were being used as a “mere tool” by Michael “to perpetrate fraud,
evade his fiduciary duties to [Suzann], and hide the assets he misappropriated from
her.”
        Suzann alleged claims for (1) breach of fiduciary duty against Michael and
“any of the entity defendants holding fiduciary property,” (2) knowing participation
in Michael’s breach of fiduciary duty against “[a]ll of the entity [d]efendants” and
Mark, (3) conspiracy in Michael’s fraud and breach of fiduciary duty against “[e]ach
of the entity [d]efendants,” and (4) fraud against Michael, “in conspiracy with and
through other [d]efendants.” Borderline filed supplemental special exceptions to


        4
          Throughout this case, Suzann has also (1) asserted that a constructive trust has been placed on any
interest that Michael has, or has transferred, in any of the defendant entities and in any other entity that was
related to the development and marketing of the Palo Pinto Property and that was acquired with funds
obtained from Suzann and (2) requested that any entity that participated in the marketing and sale of tracts
of land from the Palo Pinto Property be required to account for the proceeds of the sales.
                                                       5
Suzann’s fourth amended petition and asserted that the “minor revisions” in the
fourth amended petition had not corrected the pleading deficiencies.
      The trial court heard Borderline’s special exceptions on June 14, 2018.
During the hearing, Suzann’s counsel stated that he was “perfectly willing to replead
a little bit more” but that he needed documents from Michael first. The trial court
orally ruled:
      Just only as to fiduciary duty, I’m going to grant the special exceptions
      on that. You need to replead what the basis of your special exception -
      - or the factual basis for alleging a fiduciary duty against Borderline.
      I’m going to do that.

             I’m not saying that’s all I’m going to do, but I’m going to grant
      that part of it. That’s the one part that’s troubling me there from the
      get-go.
      In August and September 2018, a number of defendants filed for bankruptcy
and removed the case to bankruptcy court. The bankruptcy court granted Suzann’s
motion to sever the claims against the non-debtors and remanded those claims to the
trial court. On October 3, 2018, Suzann filed a fifth amended petition that dropped
the claims against the defendants that were in bankruptcy and added ten new entities
as defendants.    Suzann did not make any substantive changes to the factual
allegations or to the causes of action.
      On February 14, 2019, Suzann filed a sixth amended petition. Suzann added
factual allegations that Borderline was “set up by [Michael] (or at his direction)”;
that Michael had engaged in discovery abuse and refused to obey court orders; that
some of the transactions were “merely sham transactions intended by [Michael] to
hide the wealth transfer and launder his mother’s money”; that on January 12, 2018,
the probate court signed an order in which it prohibited Michael from moving assets;
that on January 30, 2018, the trial court signed an order in which it prohibited all the
defendants from moving or transferring any assets in Palo Pinto County absent

                                           6
advance order of the trial court; that, in response to those orders, Michael resigned
as manager of several entities; that Michael then created, or had Mark create,
Borderline, which took over the management of several of the entities; and that the
“purpose for creating Borderline was to allow [Michael] to evade the Orders of the
Probate Court and this Court prohibiting the movement of assets since he would
supposedly not be doing so directly.”
      Suzann asserted a claim for breach of fiduciary duty against Michael and “any
of the entity defendants in existence at the time of the Probate Court Judgment
holding fiduciary property.” She also asserted a claim for knowing participation in
Michael’s breach of fiduciary duty against “[a]ll of the entity [d]efendants” and
specifically alleged that Mark and Borderline were “now also participating in
ongoing breaches.”      Suzann continued to allege that “[e]ach of the entity
[d]efendants” conspired with Michael to commit fraud and breach of fiduciary duty
and that Michael committed fraud “in conspiracy with and through other
[d]efendants.”
      On March 11, 2019, Borderline filed a motion to dismiss under the TCPA.
Borderline argued that Suzann’s claims were based on, related to, or in response to
Borderline’s exercise of its right of association and that Suzann could not produce
clear and specific evidence to establish a prima facie case of each essential element
of her claims. Suzann responded that the motion to dismiss was not timely, that
Borderline had failed to establish that the TCPA applied, and that she had established
a prima facie case for each essential element of her claims. Suzann also asserted
that the motion to dismiss was frivolous or solely intended to delay and requested
that she be awarded the costs and attorney’s fees that she incurred to respond to the
motion. Borderline replied that the sixth amended petition added material factual
allegations against Borderline and specifically named Borderline in the claim for
knowing participation in breach of fiduciary duty. Borderline asserted that it timely
                                          7
filed the motion to dismiss within sixty days of being served with the sixth amended
petition. Alternatively, Borderline argued that there was good cause to extend the
time to file the motion to dismiss because the trial court had granted Borderline’s
special exceptions and required Suzann to replead her claims.
      The trial court denied Borderline’s motion to dismiss, awarded Suzann
attorney’s fees in the amount of $14,355, and severed Suzann’s claims against
Borderline from her claims against the other defendants. In findings of fact and
conclusions of law, the trial court determined that the motion to dismiss was
untimely, that there was not good cause to extend the time to file the motion to
dismiss, that Borderline failed to establish that the TCPA applied to Suzann’s claims,
and that the motion to dismiss was frivolous and solely intended to delay the
proceedings.
                                       Analysis
      In its first issue, Borderline asserts that the trial court erred when it determined
that the motion to dismiss was untimely. We review de novo the trial court’s ruling
on a TCPA motion to dismiss. Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370,
377 (Tex. 2019); Kinder Morgan SACROC, LP v. Scurry Cty., 589 S.W.3d 889, 896
(Tex. App.—Eastland 2019, pet. filed) (applying de novo standard of review to trial
court’s determination that TCPA motion was untimely). When we conduct this
review, we “consider the pleadings and the supporting evidence in the light most
favorable to the nonmovant.” Kinder Morgan, 589 S.W.3d at 896 (quoting ETC Tex.
Pipeline, Ltd. v. Addison Exploration & Dev., LLC, 582 S.W.3d 823, 832 (Tex.
App.—Eastland 2019, pet. filed)).
      A party triggers the TCPA’s dismissal procedure by filing a motion to dismiss.
CIV. PRAC. & REM. §§ 27.003(a), .005(b); S&S Emergency Training Sols., Inc. v.
Elliott, 564 S.W.3d 843, 847 (Tex. 2018). The TCPA requires that the motion be
filed no later than the sixtieth day after the date of service of the legal action. CIV.
                                           8
PRAC. & REM. § 27.003(b). A party who fails to timely file a motion to dismiss
forfeits the protections of the statute. ETC Tex. Pipeline, 582 SW.3d at 832.
However, on a showing of good cause, the trial court may extend the time to file a
motion to dismiss. CIV. PRAC. & REM. § 27.003(b); Kinder Morgan, 589 S.W.3d at
896.
       Borderline does not dispute that the second, third, fourth, and fifth amended
petitions were each a “legal action,” as defined by the TCPA, see CIV. PRAC. & REM.
§ 27.001(6) (defining “legal action” to include a lawsuit, a cause of action, a petition,
and any other judicial filing that requests legal or equitable relief), or that it filed the
motion to dismiss more than sixty days after it was served with each of these
petitions. Rather, Borderline contends that the service of the sixth amended petition
restarted the time period in which to file the motion to dismiss because the trial court
granted Borderline’s special exceptions, because Suzann did not plead “any
coherent, legally recognizable causes of action against Borderline” prior to the
claims asserted in the sixth amended petition, and because the sixth amended petition
asserted an additional cause of action against Borderline.
       A petition that gives fair notice of a claim starts the time period in which to
file a TCPA motion to dismiss. Kinder Morgan, 589 S.W.3d at 898, 900. An
amended pleading that does not add new parties or claims does not restart the
statutory deadline for filing a motion to dismiss. Id. at 897. However, if a party files
an amended petition that contains claims based upon new factual allegations, the
TCPA deadline may be restarted as to the newly added substance. Id.; see also
Campone v. Kline, No. 03-16-00854-CV, 2018 WL 3652231, at *6 (Tex. App.—
Austin Aug. 2, 2018, no pet.) (mem. op.) (noting second and third amended petitions
added “new and distinct injuries” based on factual allegations about instances of
alleged defamation, aside from statements alleged in original petition, and motion to
dismiss was timely as to new allegations). “[A]dditional factual details in an
                                             9
amended petition ‘do not restart the time for filing a motion to dismiss if the same
essential factual allegations as to the claim were presented in an earlier petition.’”
Kinder Morgan, 589 S.W.3d at 897 (quoting ETC Tex. Pipeline, 582 S.W.3d at 833);
see also Jordan v. Hall, 510 S.W.3d 194, 198 (Tex. App.—Houston [1st Dist.] 2016,
no pet.) (concluding that TCPA filing deadline was not reset by the filing of a
supplemental petition when the factual allegations underlying both the original and
supplemental petitions were the same).
        Borderline asserts that, because the trial court granted one of Borderline’s
special exceptions, it did not have fair notice of Suzann’s claims before she filed the
sixth amended petition and was not required to file a motion to dismiss until Suzann
sufficiently pleaded her claims. However, we need not address the impact, if any,
of a trial court’s grant of a party’s special exceptions on the time period in which to
file a motion to dismiss because the record reflects that the trial court granted only
Borderline’s special exception to Suzann’s claim for breach of fiduciary duty; that
Suzann did not assert a claim for breach of fiduciary duty against Borderline in any
of her petitions; and that, in the sixth amended petition, Suzann clearly stated that
she had not brought a claim for breach of fiduciary duty against Borderline.
        In its findings of fact and conclusions of law, the trial court determined that
the second amended petition “included claims against Borderline for conspiracy and
knowing participation in breach of fiduciary duty.”5 The only change that Suzann
made in the third amended petition to the claim for breach of fiduciary duty was to
add the allegation that she had suffered damages of at least $15,000,000. Therefore,

        5
         Because Borderline has not challenged this finding and because the finding is supported by the
record, we must accept it as true. See McGalliard v. Kuhlmann, 722 SW.2d 694, 696 (Tex. 1986); Odessa
Tex. Sheriff’s Posse, Inc. v. Ector Cty., 215 S.W.3d 458, 467 (Tex. App.—Eastland 2006, pet. denied).
Further, to the extent that the trial court’s finding is actually a conclusion of law, we have conducted a de
novo review of the second amended petition and agree that the only causes of action asserted against
Borderline were for conspiracy and knowing participation in breach of fiduciary duty. See BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In re Estate of Standefer, 530 S.W.3d 160,
164 (Tex. App.—Eastland 2015, no pet.).
                                                     10
Suzann did not assert a claim for breach of fiduciary duty against Borderline in the
third amended petition.
      Borderline filed special exceptions to Suzann’s third amended petition. As to
the claim for breach of fiduciary duty, Borderline contended that it was “impossible
to determine” from Suzann’s allegations whether the claim was “even intended to
be asserted against Borderline.” Borderline specifically argued that it was “not
mentioned by name or description” in the claim; was not holding any constructive
trust property; and had no relationship with, or duty to, Suzann.
      Suzann’s live pleading at the time that the trial court heard Borderline’s
special exceptions was the fourth amended petition. The only substantive changes
to Suzann’s claim for breach of fiduciary duty were the substitution of “fiduciary
property” for “constructive trust property” and the addition of the allegation that
Michael and “the entity defendants in privity with him[ ] have a continuing duty of
full disclosure.” The trial court granted Borderline’s special exception to the claim
for breach of fiduciary duty and ordered Suzann to replead “the factual basis for
alleging a fiduciary duty against Borderline.”
      Suzann responded by filing the sixth amended petition, in which she alleged
that Michael and “any of the entity defendants in existence at the time of the Probate
Court Judgment holding fiduciary property” had continuing fiduciary duties to
Suzann. The only other substantive change in the claim for breach of fiduciary duty
between the fourth and sixth amended petitions was the allegation that the “actual”
damages from the continuing breaches were “at least $15,000,000.00, and as much
as $60,000,000 without considering legal interest, attorneys’ fees, or punitive
damages.”
      The record reflects (1) that Suzann did not assert a claim for breach of
fiduciary duty against Borderline in either the second or third amended petition,
(2) that Borderline recognized in its special exceptions that Suzann had not asserted
                                         11
a claim for breach of fiduciary duty against Borderline, and (3) that Suzann made no
substantive change in her fourth or fifth amended petitions that could be construed
to assert a claim for breach of fiduciary duty against Borderline. Further, the trial
court found that Suzann “clarified” in her sixth amended petition “certain of the
asserted [causes] of action” did not apply to Borderline and that the sixth amended
petition “reduced the claims” against Borderline. We cannot conclude that the trial
court’s grant of a special exception that leads only to a clarification that a claim is
not being asserted against a TCPA movant tolls the time period in which to file a
TCPA motion to dismiss. See Jordan, 510 S.W.3d at 199 (holding that the time
period in which to file a TCPA motion to dismiss is not tolled by the trial court’s
grant of special exceptions when the petition filed in response to the trial court’s
order does not add new claims and relies upon the same factual allegations
underlying the original petition).
       At the time of the hearing on Borderline’s special exceptions, Suzann’s live
pleading was the fourth amended petition. The trial court did not grant Borderline’s
special exceptions as to Suzann’s claims for conspiracy and knowing participation
in breach of fiduciary duty. Therefore, Borderline’s time period in which to file a
motion to dismiss as to those claims began to run, at the latest, when it was served
with the fourth amended petition. 6 The sixth amended petition restarted that time
period only if it alleged a new claim or made substantive new factual allegations that
changed the essential nature of the claims. See Kinder Morgan, 589 S.W.3d at 897.
       Borderline first argues that the time period in which to file a motion to dismiss
was reset by the sixth amended petition because Suzann amended her claim for


       6
        Because it is unnecessary to the disposition of this appeal, we need not address whether
Borderline’s time period in which to file a motion to dismiss began to run when it was served with the
second amended petition.


                                                 12
knowing participation in breach of fiduciary duty to specifically name Borderline.7
However, in the second, third, and fourth amended petitions, Suzann asserted a claim
for knowing participation in breach of fiduciary duty against “[a]ll of the entity
[d]efendants.” The trial court found that this allegation was sufficient to assert a
claim against Borderline for knowing participation in breach of fiduciary duty. In
the sixth amended petition, Suzann specifically named Borderline as a defendant that
allegedly engaged in the knowing participation of breach of fiduciary duty. 8 But,
because Suzann had asserted a claim for knowing participation in breach of fiduciary
duty against Borderline beginning in the second amended petition, the specific
inclusion of “Borderline” in the sixth amended petition did not allege a new claim
against Borderline. See Chandni I, Inc. v. Patel, No. 08-18-00107-CV, 2019 WL
6799747, at *3 (Tex. App.—El Paso Dec. 13, 2019, no pet. h.) (concluding that


        7
         The conspiracy claim alleged in the sixth amended petition is exactly the same as the conspiracy
claim alleged in the fourth amended petition:
                Each of the entity Defendants conspired, and continues to conspire, with Michael
        Ruff to commit the misdeeds found to have been committed by Michael Ruff in the Final
        Award and the continuing fraud and breaches of fiduciary duty. Each is charged with the
        knowledge of the person in control of that entity, which in each case is Michael Ruff.
        8
         In the fourth amended petition, Suzann alleged:
                 All of the entity Defendants knowingly participated in [Michael]’s breaches of
        fiduciary duty and continue to do so. Defendant Mark Ruff is now also participating in
        ongoing breaches. [Michael] was either the President, General Partner, Manager of each
        of the entities or the President, General Partner or Manager of the entity which served as
        the General Partner or Manager of each of these entities. [Michael] was the settlor of both
        of the Trust Defendants and the Trustee of both at some time. His knowledge is, as a matter
        of law, imputed to each of the entities because of his controlling position within each entity.
        In the sixth amended petition, Suzann alleged:
                 All of the entity Defendants knowingly participated in [Michael]’s breaches of
        fiduciary duty and continue to do so. Defendants Mark Ruff and Borderline are now also
        participating in ongoing breaches. [Michael] is or was either the President, General
        Partner, Manager of each of the entities or the President, General Partner or Manager of
        the entity which served as the General Partner or Manager of each of these entities. At all
        material time[s], [Michael] has controlled the entities. [Michael] was the settlor of both of
        the Trust Defendants and the Trustee of both at some time. His knowledge is, as a matter
        of law, imputed to each of the entities because of his controlling position within each entity.
                                                      13
amended petition that named defendant individually in fraud cause of action did not
assert a new claim because it was based on the same essential factual allegations as
were asserted in prior petition).
      Borderline also argues that the sixth amended petition reset the time period in
which to file a motion to dismiss because it contained substantively new factual
allegations that changed the essential nature of the claims. Borderline specifically
points to the allegations in the sixth amended petition that Borderline was “set up”
by Michael, or at his direction; that Michael engaged in discovery abuse and refused
to obey court orders; that some of the transactions made by Michael were sham
transactions intended to hide the wealth transfer and to launder Suzann’s money;
that, in response to orders by the probate court and the trial court, Michael resigned
as manager of several entities and created or had Mark create Borderline; and that
Borderline was created to allow Michael to evade orders in which the probate court
and the trial court prohibited the movement of assets.
      However, in the fourth amended petition, Suzann alleged that Michael had
engaged in the systematic misappropriation of her assets for his own personal
purposes and pecuniary gain, that Michael “engaged in a pattern of deception and
manipulation to accomplish a wealth transfer from his mother to himself or entities
under his direction and control,” and that Michael “used his fiduciary status to
obscure or disguise many of the transactions.” Suzann alleged that, “[t]hroughout
this process of misappropriating [her] wealth,” Michael “created various entities,
perhaps as many as 300, but certainly more than 100[,] to further his scheme to hide
[her] assets” and that, since the arbitration award, Michael had used her “assets and
money to create new entities to further his ongoing scheme, including Defendant
Borderline.” Finally, Suzann alleged that Michael made “[a]ll of the decisions as to
the management or running of these entities.”


                                         14
       The factual allegations in the sixth amended petition, although more detailed,
essentially remain the same as the factual allegations in the fourth amended petition.
Specifically, Suzann alleged in both petitions that Michael misappropriated her
property, that he used various entities to hide her assets, and that Borderline was one
of the entities that Michael used. The additional factual allegations that Michael
intended to use Borderline to evade orders from the trial court and the probate court
in which those courts prohibited him from moving assets does not change the
essential nature of Suzann’s claims. See Mancilla v. Taxfree Shopping, Ltd., No. 05-
18-00136-CV, 2018 WL 6850951, at *3 (Tex. App.—Dallas Nov. 16, 2018, no pet.)
(mem. op.) (concluding that additional factual allegations in amended petition that
did “nothing more that provide specificity” of claim of which movant had notice in
prior petition and that did not alter the essential nature of the action did not restart
time period in which to file a motion to dismiss).
       We hold that the sixth amended petition did not assert a new claim against
Borderline and did not contain new factual allegations that changed the essential
nature of the existing claims. Therefore, the sixth amended petition did not reset the
time period in which Borderline could file a motion to dismiss under the TCPA, and
the trial court did not err when it determined that Borderline’s motion to dismiss was
untimely. See Kinder Morgan, 589 S.W.3d at 897, 900. We overrule Borderline’s
first issue.
       In its second issue, Borderline alternatively argues that, if the motion to
dismiss was untimely, the trial court erred when it found that there was no good
cause to extend the time to file the motion.
       On a showing of good cause, the trial court may extend the time to file a
motion to dismiss under the TCPA. CIV. PRAC. & REM. § 27.003(b); see also Kinder
Morgan, 589 S.W.3d at 901. “[G]ood cause is established by showing that the
failure involved was an accident or mistake, not intentional or the result of conscious
                                          15
indifference.” Kinder Morgan, 589 S.W.3d at 901 (quoting Wheeler v. Green, 157
S.W.3d 439, 442 (Tex. 2005) (per curiam)); see also Sullo v. Kubosh, No. 01-18-
00418-CV, 2019 WL 6120878, at *24 n.7 (Tex. App.—Houston [1st Dist.] Nov. 19,
2019, no pet. h.).
      We review the trial court’s decision to deny an extension of time to file the
motion to dismiss for an abuse of discretion. Kinder Morgan, 589 S.W.3d at 901.
A trial court abuses its discretion if its ruling is arbitrary or unreasonable, is made
without regard to guiding legal principles, or is not supported by the evidence. Ford
Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012); Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
      As set out above, Suzann has consistently asserted the same causes of action
against Borderline throughout this case, and the alleged facts have remained
essentially the same since the fourth amended petition. Borderline, however, has
failed to offer any explanation as to why it could not have filed a timely motion.
Rather, the record reflects that, instead of filing a motion to dismiss, Borderline
engaged in litigation for almost a year. It filed special exceptions, propounded
written discovery, answered written discovery, took Suzann’s deposition, filed a
motion to compel and for sanctions, and signed the bankruptcy petition for some of
the entities that it manages. Only after the bankruptcy court severed Suzann’s claims
against the non-debtor entities and remanded those claims to the trial court did
Borderline file its motion to dismiss.
      On this record, we cannot conclude that the trial court abused its discretion
when it determined that Borderline failed to demonstrate good cause for its failure
to file a timely motion to dismiss. See Sullo, 2019 WL 6120878, at *25 (holding
that movant failed to establish good cause that would allow the consideration of a
motion to dismiss that was filed years after movant was served with a legal action
setting out the only causes of action that had been asserted against the movant and
                                          16
after dispositive motions had been filed on those causes of action); Campone, 2018
WL 3652231, at *5 (holding that a trial court does not abuse its discretion when it
denies a motion to extend time if the circumstances surrounding the alleged
communication did not change between the two petitions and there is no explanation
of why the defendant could not have sought dismissal within sixty days of being
served with the legal action). We overrule Borderline’s second issue.
      Based on our resolution of Borderline’s first two issues, we need not address
Borderline’s third and fourth issues in which it argues that the trial court erred when
it determined that Borderline failed to establish that the TCPA applied to Suzann’s
claims and when it failed to consider whether Suzann established by clear and
specific evidence a prima facie case of each essential element of her claims. See
TEX. R. APP. P. 47.1.
      In its fifth issue, Borderline complains that the trial court erred when it
awarded Suzann attorney’s fees of $14,355 because the motion to dismiss was
neither frivolous nor solely intended to delay and because the evidence is insufficient
to support the amount of fees awarded. “We review the trial court’s decision to
award attorney’s fees under the TCPA for an abuse of discretion.” Caliber Oil &
Gas, LLC v. Midland Visions 2000, No. 11-19-00099-CV, 2019 WL 6337705, at
*11 (Tex. App.—Eastland Nov. 27, 2019, no pet. h.); see also Sullivan v. Tex. Ethics
Comm’n, 551 S.W.3d 848, 857 (Tex. App.—Austin 2018, pet. denied).
      “[T]o secure an award of attorney’s fees from an opponent, the prevailing
party must prove that: (1) recovery of attorney’s fees is legally authorized, and
(2) the requested attorney’s fees are reasonable and necessary for the legal
representation, so that such an award will compensate the prevailing party generally
for its losses resulting from the litigation process.” Rohrmoos Venture v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 487 (Tex. 2019). Borderline contends that
Suzann failed to establish either prong.
                                           17
      The TCPA authorizes a trial court to award costs and reasonable attorney’s
fees to the nonmovant if the motion to dismiss was frivolous or solely intended to
delay. CIV. PRAC. & REM. § 27.009(b); Caliber Oil & Gas, 2019 WL 6337705, at
*11. The record reflects that Borderline’s counsel admitted during the hearing on
the motion to dismiss that, although Borderline was the manager of some of the
entities, Michael was “still in charge of this operation out there at Clayton
Mountain.” In its findings of fact, the trial court found that two of the entities that
had filed for bankruptcy were managed by Borderline, but ultimately controlled by
Michael. The trial court also noted that it and other courts had found that Michael
had “engaged in a pattern of delay and obstruction.” Further, Borderline, as
manager, filed for bankruptcy protection for several of the entities and removed this
case to the bankruptcy court, which again delayed the case. Finally, Borderline
engaged in extensive discovery and motion practice before it filed the motion to
dismiss, a motion that stayed all further discovery.                See CIV. PRAC. & REM.
§ 27.003(c).
      On this record, we cannot conclude that the trial court abused its discretion
when it determined that Borderline filed the motion to dismiss for the sole purpose
of delay. Because the TCPA authorizes an award of attorney’s fees to the nonmovant
when a motion to dismiss is solely intended to delay, we need not address whether
the trial court erred when it determined that the motion to dismiss was frivolous. See
TEX. R. APP. P. 47.1.
      Borderline also argues that the evidence is insufficient to support the amount
of attorney’s fees awarded to Suzann. Texas uses the “lodestar method,” which is
essentially a “short hand version” of the Arthur Anderson9 factors, to determine
reasonable and necessary attorney’s fees. Rohrmoos Venture, 578 S.W.3d at 496.


      9
       Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

                                               18
Under the lodestar method, the factfinder must first determine the reasonable hours
spent by counsel and the reasonable hourly rate for counsel’s work. El Apple I,
Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). The factfinder then multiplies the
number of hours that counsel worked on the case by the applicable rate to determine
the base fee or lodestar. Id. The base fee is presumed to reflect the reasonable and
necessary attorney’s fees. Rohrmoos Venture, 578 S.W.3d at 499. The factfinder
may adjust the lodestar up or down if relevant factors indicate an adjustment is
necessary to reach a reasonable fee in the case. Id. at 500–01.
        It is the fee claimant’s burden to provide sufficient evidence of both the
reasonable hours worked and the reasonable hourly rate. Id. at 498. “Sufficient
evidence includes, at a minimum, evidence of (1) particular services performed,
(2) who performed the services, (3) approximately when the services were
performed, (4) the reasonable amount of time required to perform the services, and
(5) the reasonable hourly rate for each attorney performing the services. Id.10
        “General, conclusory testimony devoid of any real substance will not support
a fee award.” Id. at 501. Generalities about tasks performed provide insufficient
information for the factfinder to meaningfully review whether the tasks and hours
were reasonable and necessary.                  El Apple I, 370 S.W.3d at 764.                      While
contemporaneous billing records are not required, Rohrmoos Venture, 578 S.W.3d
at 502, there must be some evidence to inform the trial court of the time spent on
specific tasks to enable the factfinder to meaningfully review the requested fees,
Long v. Griffin, 442 S.W.3d 253, 253, 255 (Tex. 2014) (per curiam); City of
Laredo v. Montano, 414 S.W.3d 731, 736–37 (Tex. 2013) (per curiam) (reversing
and remanding to redetermine attorney’s fees when attorney testified to the time

        10
           This evidentiary standard is the same for attorney’s fees awarded as a fee-shifting sanction. See
Nath v. Tex. Children’s Hosp., 576 S.W.3d 707, 709–10 (Tex. 2019) (per curiam) (“Although this case
deals with attorney’s fees awarded through a sanctions order, the distinction is immaterial because all fee-
shifting situations require reasonableness.”).
                                                    19
expended and the hourly rate but failed to provide evidence of the time devoted to
specific tasks).
      The only evidence to support the amount of attorney’s fees awarded to Suzann
was the five-paragraph affidavit of her counsel, Mark Donheiser. According to
Donheiser, Borderline’s motion to dismiss “involved fairly complex issues
regarding a relatively new statute,” and it was necessary to do “extensive legal
research” in order “to prepare a fairly lengthy response.” Donheiser was required to
conduct “further research” after Borderline raised new issues and arguments in its
reply brief.
      Donheiser stated that he spent thirty-three hours to prepare the response and
to argue at the hearing on the motion to dismiss. Donheiser charged his “usual and
customary hourly rate” of $435, which resulted in attorney’s fees of $14,355.
Finally, Donheiser stated that he had “reviewed the factors to be considered as to
the reasonableness of attorneys fees contained in Rule 1.04(b) of the Texas
Disciplinary Rules of Professional Conduct” and that, based on those factors, it was
his opinion that the work performed and the attorney’s fees of $14,355 were
reasonable and necessary.
      Donheiser did not segregate the total time between the tasks that he performed
and did not specify when he performed the work. Nor did he provide any billing
records. Without details about the work done and how much time was spent on each
task, Donheiser’s affidavit “lacks the substance required to uphold a fee award.”
Rohrmoos Venture, 578 S.W.3d at 505.
      We overrule Borderline’s fifth issue to the extent that Boderline complains
that the trial court erred when it determined that the motion to dismiss was solely
intended to delay. We sustain Borderline’s fifth issue to the extent that Boderline
complains about the amount of attorney’s fees awarded by the trial court, reverse the
trial court’s award of $14,355 for attorney’s fees, and remand the issue to the trial
                                         20
court for a redetermination of fees. See El Apple, 370 S.W.3d at 765 (concluding
that, because record did not provide sufficient evidence to support discretionary
award of attorney’s fees under the Texas Commission on Human Rights Act, case
should be remanded to the trial court for a redetermination of fees); see also
Rohrmoos Venture, 578 S.W.3d at 505; Long, 442 S.W.3d at 256.
                                      This Court’s Ruling
       We reverse that portion of the trial court’s order in which it awarded Suzann
$14,355 for attorney’s fees that she incurred to respond to Borderline’s motion to
dismiss, and we remand that issue to the trial court for a redetermination of the
amount of attorney’s fees that Suzann is entitled to receive. We affirm the trial
court’s order in all other respects.




                                                     JIM R. WRIGHT
                                                     SENIOR CHIEF JUSTICE


March 5, 2020
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.11

Willson, J., not participating.




       11
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at
Eastland, sitting by assignment.



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