Opinion filed May 16, 2019




                                   In The


        Eleventh Court of Appeals
                                 __________

                             No. 11-18-00306-CV
                                 __________

TRINITY D. CRAWFORD, INDIVIDUALLY AND ON BEHALF
  OF PRECISION FRAC, LLC, BLUE GOLD ENERGY, LLC,
   BLUE GOLD ENERGY BARSTOW, LLC, AND KARMIC
ENERGY, LLC; CHAD A. CARSON, INDIVIDUALLY AND ON
BEHALF OF PRECISION FRAC, LLC, BLUE GOLD ENERGY,
LLC, BLUE GOLD ENERGY BARSTOW, LLC, AND KARMIC
ENERGY, LLC; KALEE VANMETER; AND DONNIE SEBURG,
               Appellants/Cross-Appellees
                                      V.
             JARROD E. DAVIS A/K/A JARED E. DAVIS,
                    Appellee/Cross-Appellant


                    On Appeal from the 142nd District Court
                            Midland County, Texas
                        Trial Court Cause No. CV54756
                            MEMORANDUM OPINION
      This appeal arises from the trial court’s partial denial of Appellants’ TCPA1
motion to dismiss and presents us with an unusual situation—neither Appellants nor
Appellee request that we affirm the trial court’s order. Instead, both Appellants and
Appellee ask that we render judgment vacating the attorney’s fees awarded to
Appellee and remand the cause to the trial court for a determination of the attorney’s
fees and sanctions to be awarded to Appellants. Furthermore, although Appellants
and Appellee disagree on whether the trial court erred in partially denying
Appellants’ TCPA motion to dismiss, Appellee nonetheless asks that we dismiss
with prejudice the contested claims underlying this appeal pursuant to Appellants’
TCPA motion to dismiss. Thus, because both parties seek the same relief, we
reverse.
                                           Background Facts
      Appellants, Trinity D. Crawford, Chad A. Carson, Kalee VanMeter, and
Donnie Seburg, together with Appellee, Jarrod E. Davis a/k/a Jared E. Davis, were
co-owners and business partners of multiple companies. After the relationship
between Appellee and Appellants deteriorated, Appellants alleged that Appellee
began using company credit cards and funds to finance purchases of personal
vehicles, fund a gambling habit, and pay down personal credit card debt.
Consequently, Appellants asserted multiple causes of action against Appellee for
misappropriating company funds, including claims for breach of duty and self-
dealing.      Appellants sought, among other things, restitution, damages, and an
injunction against Appellee.
      Appellee counterclaimed and asserted claims against Appellants for the
following: abuse of process; wrongful injunction; malicious prosecution; tortious


      1
          TEX. CIV. PRAC. & REM. CODE ANN. ch. 27 (West 2015) (Texas Citizens Participation Act).

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interference with a contract; tortious interference with business relations;
defamation; business disparagement; civil conspiracy; breach of fiduciary duty;
conversion; and theft. Appellee alleged that Appellants defamed him and attempted
to deprive him of business opportunities out of a personal vendetta against him.
      In response, Appellants filed a motion under the TCPA to dismiss Appellee’s
counterclaims for abuse of process, wrongful injunction, malicious prosecution,
tortious interference with a contract, tortious interference with business relations,
defamation, business disparagement, and conspiracy. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.003 (West 2015). Appellants did not move to dismiss Appellee’s
claims for breach of fiduciary duty, conversion, or theft.
      Following a hearing, the trial court partially granted Appellants’ TCPA
motion to dismiss but denied the motion with regards to Appellee’s claims for
wrongful injunction, tortious interference with a contract, and tortious interference
with business relations.    The trial court also awarded attorney’s fees to both
Appellants and Appellee in the amount of $5,000 but declined to assess sanctions
against Appellee.
      Both Appellants and Appellee appealed the trial court’s order on Appellants’
TCPA motion to dismiss. As required by the TCPA, Appellee’s non-contested
counterclaims (fiduciary duty, conversion, and theft) were automatically stayed
pending the outcome of this appeal. See id. § 27.003(c).
                                      Analysis
       Appellants bring six issues on appeal. In their first three issues, Appellants
argue that the trial court erred in denying their TCPA motion to dismiss Appellee’s
counterclaims for wrongful injunction, tortious interference with a contract, and
tortious interference with a business relation. In their fourth and fifth issues,
Appellants argue that the trial court erred in determining and awarding attorney’s
fees to Appellants and Appellee. Lastly, in their sixth issue, Appellants argue that
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the trial court erred in failing to impose sanctions against Appellee as required by
the TCPA.
      In response, Appellee has advanced an unusual request—he asks us to rule
against him. Specifically, Appellee has foregone addressing Appellants’ issues on
appeal and has instead requested that we (1) enter an order requiring Appellee to
nonsuit with prejudice the contested causes of action, (2) vacate the attorney’s fees
awarded Appellee by the trial court, and (3) remand this cause to the trial court for
a determination of Appellants’ proper attorney’s fees and sanctions. While Appellee
does not concede that the trial court erred in partially denying Appellants’ TCPA
motion to dismiss, Appellee argues that he is being harmed by the TCPA’s automatic
stay. Thus, Appellee wishes to withdraw his contested claims so that litigation may
proceed on the “non-contested claims” currently stayed at the trial level.
      Notwithstanding Appellee’s request, Appellants argue that they are entitled to
a ruling on the merits of their claims and stress that ordering Appellee to nonsuit
would not afford Appellants the same relief that a dismissal with prejudice would.
However, a closer look at Appellee’s brief reveals that he wishes to “dismiss, with
prejudice, all . . . contested claims,” and Appellee clarified at oral argument that the
contested claims should be dismissed with prejudice. Thus, Appellee has agreed
that his counterclaims should not merely be ordered nonsuited but, instead, should
be dismissed with prejudice. As such, the parties seek the same relief.
       Because both parties have requested that the contested counterclaims be
dismissed, neither party has requested that the trial court’s order regarding the
contested counterclaims be affirmed. It is well established that we cannot grant relief
not requested. See State v. Brown, 262 S.W.3d 365, 370 (Tex. 2008) (“A party
generally is not entitled to relief it does not seek.”); Ballard v. First Nat’l Bank of
Trenton, No. 06-09-00111-CV, 2010 WL 2574036 (Tex. App.—Texarkana June 29,
2010, no pet.) (mem. op.) (holding that the appellate court could not affirm judgment
                                           4
where neither party requested that the judgment be affirmed). Thus, due to the
unusual circumstance here—that both parties request Appellee’s counterclaims be
dismissed—we reverse the trial court’s order pertaining to the partial denial of
Appellants’ TCPA motion to dismiss and render judgment that Appellee’s
counterclaims for wrongful injunction, tortious interference with a contract, and
tortious interference with a business relation be dismissed with prejudice pursuant
to Appellants’ TCPA motion.
      In their last three issues, Appellants argue that the trial court erred by
(1) awarding Appellee attorney’s fees, (2) awarding Appellants only $5,000 in
attorney’s fees when Appellants presented evidence of reasonable and necessary
attorney’s fees totaling more than $46,000, and (3) failing to assess sanctions against
Appellee. Appellee agrees that, because there was no express finding by the trial
court that Appellants’ TCPA motion was frivolous or solely intended to delay,
Appellee was precluded from receiving attorney’s fees. Appellee also concedes that
an award of sanctions is mandatory under the TCPA where a motion has been
granted. Lastly, Appellee agrees that, in light of the dismissal of Appellee’s
remaining counterclaims, the issue of Appellants’ reasonable attorney’s fees should
be reexamined. Accordingly, Appellee requests that his award of attorney’s fees be
vacated and that the issues regarding Appellants’ attorney’s fees and sanctions be
remanded to the trial court.
      Under the TCPA, a defendant who successfully moves for dismissal is entitled
to “(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.” CIV. PRAC. & REM. § 27.009(a); Youngkin v. Hines, 546 S.W.3d 675, 683
(Tex. 2018). Courts have interpreted this language to mean that an award of
                                          5
attorney’s fees and sanctions to the successful movant is mandatory. See Sullivan v.
Abraham, 488 S.W.3d 294, 299 (Tex. 2016) (agreeing that sanctions are mandatory
under the TCPA and further concluding that the TCPA requires an award of
reasonable attorney’s fees to a successful movant); Serafine v. Blunt, No. 03-16-
00131-CV, 2017 WL 2224528, at *7 (Tex. App.—Austin May 19, 2017, pet. denied)
(mem. op.) (holding that, in light of the mandatory nature of a sanctions award under
the TCPA, the trial court erred in failing to award some amount of sanctions to
achieve the deterrent effect the TCPA requires). Contrastingly, court costs and
reasonable attorney’s fees may only be awarded to a responding party upon a finding
that the motion to dismiss was filed frivolously or with intent to delay. CIV. PRAC.
& REM. § 27.009(b). Lastly, as a general rule, reversal is proper where an appellee
confesses error. See McNutt v. Garick Fire Prot., Inc., 225 S.W.3d 657, 657–58
(Tex. App.—El Paso 2006, no pet.); Ervin v. Wichita Cty. Family Court Servs., 533
S.W.2d 947, 951 (Tex. Civ. App.—Fort Worth 1976, no writ).
      Therefore, here, because Appellee has conceded that the trial court erred in
awarding Appellee attorney’s fees without first finding that Appellants’ TCPA
motion to dismiss was filed frivolously or with intent to delay, the trial court erred
in awarding Appellee attorney’s fees.          See CIV. PRAC. & REM. § 27.009(b).
Likewise, because the TCPA mandates sanctions, the trial court erred in failing to
assess sanctions against Appellee. See id. § 27.009(a); Sullivan, 488 S.W.3d 294.
Lastly, because attorney’s fees are mandated under the TCPA, in light of our
dismissal of Appellee’s remaining claims, we agree that the issue of Appellants’
reasonable attorney’s fees should be reexamined. See id. § 27.009(a). Thus, we
sustain Appellants’ fourth, fifth, and sixth issues.




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                                               Conclusion
        We reverse the trial court’s order to the extent that it denied Appellants’ TCPA
motion to dismiss, and we render judgment that Appellee’s counterclaims for
wrongful injunction, tortious interference with a contract, and tortious interference
with a business relation be dismissed with prejudice. We reverse the trial court’s
order regarding attorney’s fees awarded to Appellee, and we render judgment that
Appellee take nothing in that regard. We remand the cause to the trial court for
further proceedings consistent with this opinion, including the remaining issues
regarding Appellants’ attorney’s fees and sanctions.




                                                                   KEITH STRETCHER
                                                                   JUSTICE


May 16, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2

Willson, J., not participating.




        2
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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