Opinion filed November 27, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-19-00099-CV
                                  __________

                 CALIBER OIL & GAS, LLC, Appellant
                                          V.
      MIDLAND VISIONS 2000, ROGER HENDERSON, AND
              TONEY HENDERSON, Appellees

                    On Appeal from the 441st District Court
                           Midland County, Texas
                       Trial Court Cause No. CV54602


                                   OPINION
      This lawsuit concerns the ownership of 10.6 acres of land in Midland, Texas.
Appellant, Caliber Oil & Gas, LLC, and Appellees, Midland Visions 2000, Roger
Henderson, and Toney Henderson, all claim to own undivided interests in the
property. Caliber sued Midland Visions and the Hendersons, as well as other
individuals who are not parties to this interlocutory appeal, seeking to quiet title to
the property and to recover a proportionate share of the ad valorem taxes on the
property that Caliber had paid. 1 Caliber also alleged that Midland Visions and the
Hendersons filed fraudulent records pertaining to the property and that Midland
Visions and Roger Henderson tortiously interfered with a contract between Caliber
and a realtor.
        Midland Visions filed counterclaims against Caliber for tortious interference
with contract and, alternatively, tortious interference with prospective business
relations.2      The Hendersons filed counterclaims against Caliber for tortious
interference with prospective business relations.3 Pursuant to the Texas Citizens
Participation Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (West 2015)
(the TCPA), 4 Caliber filed a motion to dismiss Appellees’ tortious interference
counterclaims and the Hendersons’ request that Caliber’s claims be dismissed. The
trial court denied the motion to dismiss, found the motion was frivolous and intended
to delay, and awarded Midland Visions $34,872.50 for reasonable court costs and
attorney’s fees.


        1
         Caliber also asserted a trespass to try title claim. However, a page of Caliber’s original petition is
missing, and we are unable to ascertain the details of that claim.
        2
         Midland Visions also filed counterclaims against Caliber for trespass to try title and for waste.
Caliber did not move to dismiss these counterclaims.
        3
         The Hendersons also filed counterclaims in which they (1) alleged that Caliber used “illegal and
unethical tactics” to obtain interests in the property and knowingly filed fraudulent documents and
(2) requested that Billie Ruth Henderson’s interest in the property be awarded to them. Caliber did not
move to dismiss these counterclaims.
        4
          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 two issues, Caliber asserts that the trial court erred when it
determined (1) that the TCPA did not apply to Appellees’ tortious interference
counterclaims and the Hendersons’ request that Caliber’s claims be dismissed and
(2) that Appellees met their burden to establish by clear and specific evidence a
prima facie case for each essential element of the counterclaims. In two additional
issues, Caliber contends that the trial court erred when it failed to award attorney’s
fees, costs, and sanctions to Caliber and awarded attorney’s fees and costs to
Midland Visions.
      We hold (1) that Caliber failed to carry its burden to establish that the TCPA
applies to Appellees’ tortious interference counterclaims and to the Hendersons’
request that Caliber’s claims be dismissed and (2) that the trial court did not abuse
its discretion when it determined that Caliber’s motion to dismiss was frivolous. We
affirm the trial court’s order.
                                     Background
      In 1946, Charlie and Phyllis Lewis acquired a 10.6-acre tract of land in
Midland. Both of the Lewises died intestate, and after Phyllis’s death in 1991, the
Lewises’ seven children inherited the property. Over the next twenty-five years,
interests in the property were transferred by conveyance and by inheritance. Caliber
alleges that, by January 2018, thirty-five individuals owned an interest in the north
7.1 acres of the tract and thirty-six individuals owned an interest in the south 3.5
acres of the tract. The interests at issue in this appeal are those owned by Billie Ruth
Lewis Henderson, Patricia Smith Whitley, LaSundra Selmon, and Rhonda Clement.
      Billie Ruth is the Lewises’ daughter and the Hendersons’ mother. Billie Ruth
inherited a 1/7 interest in the property when her mother died in 1991 and inherited
additional interests in the property when her brothers, James Howard Lewis and J.D.
Lewis, died intestate in 2009 and 2011, respectively. On September 13, 2013, Billie


                                           3
Ruth conveyed her “undivided one-fourth (1/4) interest” in the property to the
Hendersons.5
        Charlene Lewis Smith Brown inherited a 1/7 interest in the property when
Phyllis Lewis died. Brown inherited additional interests in the land from both James
Howard Lewis and J.D. Lewis and, after J.D.’s death, owned a 1/5 interest in the
north 7.1 acres and a 6/35 interest in the south 3.5 acres. On September 13, 2013,
Brown conveyed her interest in the property to Whitley, Selmon, Clement, and
Rashon Cooks. After the conveyance, each of these individuals owned a 1/20
interest in the north 7.1 acres and a 3/70 interest in the south 3.5 acres. On June 29,
2015, Rashon conveyed his interest in the property to Robert Cooks.
        On September 12, 2013, the Hendersons communicated to individuals who
owned interests in the property that taxes were owed on the property.                                 The
Hendersons requested that the owners participate in the payment of taxes and stated
that anyone who participated in “saving” the property would “re-coupe [sic] their
tax money paid” when the property was sold before the remaining money from the
sale was distributed to “all the heirs.” A group of individuals who owned interests
in the property agreed to an installment contract with the Midland County Central
Appraisal District on September 12, 2013, to pay the taxes for years 2008 through
2012. Between September 12, 2013, and April 21, 2015, various individuals paid
approximately $16,000 to the Appraisal District for back taxes and fees as well as
for new taxes that had been assessed.

        5
          Caliber and Midland Visions allege that, on November 29, 2003, Billie Ruth and her brother,
James Howard Lewis, conveyed their interests in the south 3.5 acres of the property to Dawnyaell Shelby.
Caliber also alleges that, on July 29, 2009, Billie Ruth conveyed her original 1/7 interest in the north 7.1
acres to Bobby Joe Lee and that, on September 13, 2013, Billie Ruth conveyed to the Hendersons only the
interest in the property that she inherited in 2011. The Hendersons contest the validity of the 2003
conveyance to Shelby and the 2009 conveyance to Lee. The validity of any conveyance is not at issue in
this appeal.




                                                     4
      Between 2013 and 2017, the Appraisal District increased the appraised value
of the property from $46,170 to $323,220 to over $500,000. The Appraisal District
told the Hendersons that, due to a new law, they could not sign another agreement
to pay the taxes in installments. After the taxes were not paid timely, the Appraisal
District posted the property for sale on March 6, 2018.
      Joel Gordon’s law firm is Joel Amos Gordon, Esquire, PLLC. The PLLC is
a member of Caliber. The other member of Caliber is Dahlia Land Services, LLC.
James Brian Hillman and his wife are the members of Dahlia. The PLLC and Dahlia
are individually involved in projects separate from Caliber. However, if both
Hillman and Gordon are interested in a project, they use Caliber as the “vehicle” for
that particular deal.
      Gordon saw that the property was posted for sale and asked Hillman if he was
interested in acquiring interests in the property. Hillman was interested in the
property and, in early February 2018, sent approximately fifty letters on behalf of
Caliber offering to purchase individual interests in the property. Caliber specifically
offered to purchase the interests owned by Whitley, Selmon, and Clement.
      Midland Visions was also interested in purchasing interests in the property.
On February 27, 2018, Midland Visions agreed to pay Whitley, Selmon, and
Clement $2,000 each for their interests in the property. On March 1, 2018, Whitley,
Selmon, and Clement signed deeds that conveyed their interests in the property to
Midland Visions and sent the deeds to Mac A. Starnes, an attorney who was serving
as an intermediary between the parties. Midland Visions deposited $6,000 with
Starnes and instructed him to transmit the funds to Whitley, Selmon, and Clement
after he confirmed that each woman owned an interest in the property.
      Around March 1, 2018, Gordon placed business cards for the PLLC on the
doors of Whitley’s and Robert Cooks’s houses. Gordon wrote a note on each card


                                          5
that stated that he was interested in purchasing interests in the property. On March 2,
2018, Whitley informed Gordon that she had already agreed to sell her interest in
the property. Gordon checked the public records and did not find a conveyance of
Whitley’s interest in the property.
       Whitley called Gordon on March 4, 2018, and told him that the contract for
her interest in the land required that she, Selmon, Clement, and Robert Cooks all
agree to sell their interests; that Cooks refused to sell his interest; that she had not
received any money from the buyer; and that the contract had fallen through. Gordon
agreed to pay Whitley, Clement, Selmon, and Cooks $5,000 each for their interests
in the property.
       Gordon contacted Hillman, who is a notary, and asked him to obtain deeds
from Whitley and Cooks. Around midnight, Hillman went to Whitley’s house.
Whitley told Hillman that she, Clement, and Selmon had signed deeds that conveyed
their interests in the property to Midland Visions. Hillman called Selmon and
Clement, and all three women told him that they had not received payment from
Midland Visions. Hillman, who is not an attorney, assumed that, if the consideration
had not been paid, the prior deeds were not valid. Even though he recognized that
it was a “risk,” Hillman had Whitley sign a deed that conveyed her interest in the
property to the PLLC. 6 Hillman notarized the deed. Hillman paid Whitley for her
interest and the interests of Selmon and Clement with checks written on Caliber’s
bank account. Gordon checked the public records on the morning of March 5th to
ensure that no deed that conveyed Whitley’s, Selmon’s, or Clement’s interest in the


       6
         Gordon was concerned that, because Hillman owned an interest in Caliber through Dahlia, “there
might be some impropriety” if Hillman notarized a deed that conveyed property to Caliber. Both Gordon
and Hillman intended that the PLLC would convey the interests in the property to Caliber. On March 21,
2018, the PLLC executed a deed that conveyed its interest in the property to Caliber.




                                                  6
property had been filed. Either Hillman or Gordon filed the deed signed by Whitley
in the public records at 8:18 a.m. on March 5, 2018.
      Later that day, Selmon and Clement signed deeds that conveyed their interests
in the property to the PLLC. Selmon then told Midland Visions that she had
executed a deed to another purchaser because she had not received payment from
Midland Visions. At 3:19 p.m. on March 5, 2018, Midland Visions filed in the
public records the March 1, 2018 deeds that conveyed Selmon’s and Clement’s
interests in the property to Midland Visions. At 10:14 a.m. on March 6, 2018,
Gordon filed in the public records the March 5, 2018 deeds that conveyed Selmon’s
and Clement’s interests in the property to the PLLC.
      Caliber paid the Appraisal District $60,092.87 for back taxes on the property,
and the property was removed from the tax sale. On March 6, 2018, the Hendersons
filed in the public records a “Lien for Nonpayment of Taxes” against the interests of
Ervin Lewis, Dawnyaell Shelby, and Bobby Joe Lee. The Hendersons stated that
they had paid $8,400 of the “back taxes” to “bring the property out of delinquency
in 2013” and that Lewis, Shelby, and Lee had not contributed to those payments.
      Starnes sent checks for $2,000 to Selmon and Clement on March 7, 2018, and
to Whitley on April 30, 2018. None of the three women cashed the checks. On
May 1, 2018, Midland Visions filed in the public records the March 1, 2018 deed
that conveyed Whitley’s interest in the property to Midland Visions.
      Caliber hired a realtor to sell the property. Caliber alleges that, after Arlene
Love of Midland Visions saw the “For Sale” sign, she contacted both the realtor and
Roger Henderson and that Roger also called the realtor.           The property was
subsequently taken off the market.
      Caliber sued Midland Visions, the Hendersons, and other individuals who
owned interests in the property. Caliber sought to recover a proportionate share of


                                          7
the taxes that it had paid and to quiet title in the property. Caliber also alleged that
Midland Visions and the Hendersons had filed fraudulent records and that Midland
Visions and Roger Henderson tortiously interfered with Caliber’s contract with the
realtor.
       As relevant to this appeal, Midland Visions filed counterclaims against
Caliber for tortious interference with Midland Visions’ contracts with Whitley,
Selmon, and Clement or, alternatively, for tortious interference with prospective
business relations. The Hendersons, appearing pro se, filed counterclaims against
Caliber for tortious interference with the Hendersons’ prospective contract to sell
their interests in the property to Midland Visions. The Hendersons specifically
alleged that Caliber offered them more money for their interests than Midland
Visions had offered but that Caliber had no intention of actually buying their
interests. As a “counterclaim,” the Hendersons also requested that the trial court
dismiss all of Caliber’s claims.
       Caliber filed a TCPA motion to dismiss (1) Midland Visions’ counterclaims
for tortious interference with contract and tortious interference with prospective
business relations, (2) the Hendersons’ counterclaim for tortious interference with
prospective business relations, and (3) the Hendersons’ request that Caliber’s claims
be dismissed. Midland Visions and Roger Henderson responded to the motion. The
trial court denied the motion, found that the motion was frivolous or brought to
delay, and awarded Midland Visions $34,872.50 for reasonable costs and attorney’s
fees. The trial court made findings of fact and conclusions of law that Caliber failed
to establish that the TCPA applied to the complained-about legal actions, that
Midland Visions established by clear and specific evidence a prima facie case of




                                           8
each element of its tortious interference counterclaims, and that Caliber’s motion to
dismiss was frivolous and solely intended to delay. 7
                                               Analysis
        In its first two issues, Caliber asserts that the trial court erred when it
determined (1) that the TCPA does not apply to Appellees’ tortious interference
counterclaims and to the Hendersons’ request that Caliber’s claims be dismissed and
(2) that Appellees established by clear and specific evidence a prima facie case for
each essential element of the tortious interference counterclaims.
        The TCPA
        The TCPA protects citizens from retaliatory lawsuits meant to intimidate or
silence them on matters of public concern. Dallas Morning News, Inc. v. Hall, 579
S.W.3d 370, 376 (Tex. 2019); In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig.
proceeding). The stated purpose of the TCPA 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.” CIV. PRAC. & REM. § 27.002; see also ExxonMobil Pipeline
Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). We construe the
TCPA “liberally to effectuate its purpose and intent fully.” CIV. PRAC. & REM.
§ 27.011(b); see also State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018).
        The TCPA provides a procedure to expedite the dismissal of a “legal action”
that appears to stifle the nonmovant’s exercise of the rights protected by the statute.
Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018); see also CIV. PRAC. & REM.
§§ 27.003(a), .005(b).           The movant bears the initial burden to show by a

        7
         On June 25, 2019, the Hendersons informed this court that they would not submit a brief in this
appeal because the trial court “only submitted the Fact Finding and Conclusion of Law of Midland Vision.”



                                                   9
preponderance of the evidence that the legal action is based on, related to, or in
response to the movant’s exercise of the right of free speech, the right of association,
or the right to petition. CIV. PRAC. & REM. §§ 27.003(a), .005(b); Youngkin, 546
S.W.3d at 679.      If the movant makes this showing, the burden shifts to the
nonmovant to establish by clear and specific evidence a prima facie case for each
essential element of the claim in question.         CIV. PRAC. & REM. § 27.005(c);
Youngkin, 546 S.W.3d at 679. Even when the nonmovant satisfies this burden, the
trial court must dismiss the legal action if the movant “establishes by a
preponderance of the evidence each essential element of a valid defense to the
nonmovant’s claim.” CIV. PRAC. & REM. § 27.005(d); see also Youngkin, 546
S.W.3d at 679–80. We review de novo the trial court’s determination of whether
the parties satisfied their respective burdens. Hall, 579 S.W.3d at 377.
      Applicability of the TCPA
      In its first issue, Caliber contends that the trial court erred when it determined
that the TCPA does not apply to Appellees’ counterclaims because (1) Midland
Visions’ and the Hendersons’ tortious interference counterclaims are based on,
related to, or in response to Caliber’s exercise of the right of association and right of
free speech and (2) the Hendersons’ request that Caliber’s claims be dismissed is
based on, related to, or in response to Caliber’s exercise of its right to petition.
      Whether the TCPA applies to a legal action is an issue of statutory
interpretation that we review de novo. Youngkin, 546 S.W.3d at 680. When we
conduct this analysis, we interpret the statute’s language as a whole, rather than
reading its individual provisions in isolation from one another. Id. “[W]e ascertain
and give effect to the Legislature’s intent as expressed in the language of the statute,”
Harper, 562 S.W.3d at 11 (quoting City of Rockwall v. Hughes, 246 S.W.3d 621,
625 (Tex. 2008)), and construe the statute’s words “according to their plain and


                                           10
common meaning, unless a contrary intention is apparent from the context, or unless
such a construction leads to absurd results,” Youngkin, 546 S.W.3d at 680 (quoting
Hughes, 246 S.W.3d at 625–26); see also Lipsky, 460 S.W.3d at 590 (“Words and
phrases that are not defined by statute and that have not acquired a special or
technical meaning are typically given their plain or common meaning.”).
      To determine if a legal action falls within the scope of the statute, we consider
the pleadings and the supporting and opposing affidavits in the light most favorable
to the nonmovant. CIV. PRAC. & REM. § 27.006(a); ETC Tex. Pipeline, Ltd. v.
Addison Exploration & Dev., LLC, 582 S.W.3d 823, 832 (Tex. App.—Eastland,
2019, pet. filed). If “a holistic review of the pleadings” demonstrates that the “legal
action” is covered by the TCPA, the movant need show no more. Adams v. Starside
Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018); Hersh v Tatum, 526
S.W.3d 462, 467 (Tex. 2017).
      Each of the rights protected by the TCPA requires a “communication.” CIV.
PRAC. & REM. § 27.001(2)–(4). The TCPA defines a “communication” to include
“the making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). Caliber’s
statements to Whitley, Selmon, Clement, and the Hendersons that underlie the
tortious interference counterclaims are “communications” as defined by the TCPA.
             A. Right to Petition
      The exercise of the right to petition under the TCPA includes a
communication in a judicial proceeding. Id. § 27.001(4)(A)(i). Caliber argues that
the TCPA applies to the Hendersons’ request that Caliber’s claims be dismissed
because Caliber exercised its right to petition when it filed a communication, its
original petition, in this judicial proceeding and, in response, the Hendersons filed a
“legal action” that requested that Caliber’s claims be dismissed.


                                          11
      The TCPA defines a “legal action” as a “lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal or equitable relief.” Id. § 27.001(6). We first note that, although
denoted as a “counterclaim,” the Hendersons’ request that Caliber’s claims be
dismissed does not allege a substantive cause of action. Rather, the request is more
akin to a prayer that Caliber take nothing on its claims. See In re J.Z.P., 484 S.W.3d
924, 925 (Tex. 2016) (per curiam) (“We have stressed that ‘courts should
acknowledge the substance of the relief sought despite the formal styling of the
pleading.’” (quoting Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666
(Tex. 2011) (per curiam))); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.
1980) (orig. proceeding). We cannot conclude that a defendant’s prayer that the
plaintiff “take nothing” on its claims is a “counterclaim” such that it is a “legal
action” under the TCPA. See BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841
(Tex. 1990) (orig. proceeding) (“To qualify as a claim for affirmative relief, a
defensive pleading must allege that the defendant has a cause of action, independent
of the plaintiff’s claim, on which he could recover benefits, compensation or relief,
even though the plaintiff may abandon his cause of action or fail to establish it.”
(quoting Gen. Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990))).
      Under the statutory definition, the Hendersons’ request that Caliber’s claims
be dismissed could also constitute a “legal action” if it is a “judicial pleading that
requests legal or equitable relief.” See CIV. PRAC. & REM. § 27.001(6). In Deepwell
Energy Services, LLC v. Aveda Transportation & Energy Services, 574 S.W.3d 925,
927–29 (Tex. App.—Eastland 2019, pet. denied), we considered whether a TCPA
motion to dismiss was a “judicial pleading or filing that requests legal or equitable
relief” such that it would be subject to dismissal based on a TCPA countermotion to
dismiss. We held that a TCPA motion to dismiss does not fall under this “catch-all”


                                         12
provision of the statutory definition because it “is not a procedural vehicle for the
vindication of a legal claim.” 574 S.W.3d at 929. Although the Hendersons did not
specifically invoke the TCPA, their request that Caliber’s claims be dismissed is also
not a procedural vehicle for the vindication of a legal claim. See BHP Petroleum
Co., 800 S.W.2d 841; Gen. Land Office, 789 S.W.2d at 570. Therefore, the
Hendersons’ request that Caliber’s claims be dismissed is not a “legal action” as a
“judicial pleading or filing that requests legal or equitable relief.” See CIV. PRAC. &
REM. § 27.001(6); Paulsen v. Yarrell, 537 S.W.3d 224, 234 (Tex. App.—Houston
[1st Dist.] 2017, pet. denied).
      Because the Hendersons’ request that Caliber’s claims be dismissed is not a
“legal action,” as defined by the statute, it is not subject to a TCPA motion to dismiss.
             B. Right of Association
      Caliber next asserts that the TCPA applies to both Midland Visions’ and the
Hendersons’ tortious interference counterclaims because those claims are based on,
related to, or in response to Caliber’s right of association. In the trial court, Caliber
did not raise the issue that the TCPA applies to the Hendersons’ counterclaims
because those claims are based on, related to, or in response to Caliber’s exercise of
its right of association. A party may not assert on appeal that the TCPA applies to a
legal action based on the party’s exercise of a statutory right that was not relied upon
in the trial court. Rossa v. Mahaffey, No. 11-18-00347-CV, 2019 WL 5800283, at
*4–5 (Tex. App.—Eastland Nov. 7, 2019, no pet. h.). Therefore, whether the TCPA
applies to the Hendersons’ tortious interference counterclaims because those claims
are based on, in response to, or related to Caliber’s right of association has not been
preserved for our review. See id.
      Moreover, the record does not establish that the right of association is
involved in this case. The exercise of the right of association under the TCPA means


                                           13
“a communication between individuals who join together to collectively express,
promote, pursue, or defend common interests.” CIV. PRAC. & REM. § 27.001(2).
Caliber argues that it exercised its right of association when it joined with Whitley,
Selmon, and Clement “to collectively express, promote, pursue, or defend” the
“common interest” of “the purchase and sale of real estate.” 8
        It is undisputed that Whitley, Selmon, and Clement desired to sell their
interests in the property before the foreclosure sale and that Caliber wanted to buy
those interests. However, there is no allegation, and no evidence, that Caliber and
any of the three women intended to develop the property together or to engage in an
ongoing business enterprise. Rather, Caliber and the three women were on opposite
sides of a business transaction and were each promoting or pursuing their own
interests. While we need not delineate in this case the outer contours of “common
interest” under the TCPA, we hold that to establish a “common interest” there must
be more than two parties with distinctly different interests completing a business
transaction. See Levatino v. Apple Tree Café Touring, Inc., 486 S.W.3d 724, 728
(Tex. App.—Dallas 2016, pet. denied) (concluding that communications “between

        8
         There is a conflict among the courts of appeals about whether the right of association requires a
“public” or “citizen” component. Compare Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 426 (Tex.
App.—Dallas 2019, pet. denied) (concluding that the “right of association” under the TCPA must involve
public or citizen participation), and Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 582 (Tex. App.—Fort
Worth 2019, pet. denied) (“A definition of ‘common’ that focuses on the public or group implements both
purposes [of the TCPA] while one that focuses on any interest shared between two people serves neither.”),
with Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 2018 WL 6695810, at *12 (Tex. App.—Houston
[1st Dist.] Dec. 20, 2018, no pet. h.) (concluding that communications between alleged tortfeasors about
the formation of a new company, including communications about allegedly misappropriating information
and conspiring to breach alleged fiduciary duties, constituted the “[e]xercise of the right of association”
under the TCPA) (alteration in original), Morgan v. Clements Fluids S. Tex., LTD., No. 12-18-00055-CV,
2018 WL 5796994, at *3 (Tex. App—Tyler Nov. 5, 2018, no pet.) (same), Abatecola v. 2 Savages Concrete
Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *7–8 (Tex. App.—Houston [14th Dist.] June
26, 2018, pet. denied) (mem. op.) (same), and Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 295–96
(Tex. App.—Austin 2018, pet. denied) (same). We need not address that question in this case because
Caliber failed to establish that its communications with Whitley, Selmon, or Clement were between
individuals who had a “common interest.”



                                                    14
adversaries” were “not between persons acting to promote, pursue, or express their
common interest”). On this record, Caliber failed to establish by a preponderance
of the evidence that Midland Visions’ tortious interference counterclaims are based
on, related to, or in response to Caliber’s exercise of the right of association.
             C. Right of Free Speech
      Caliber finally contends that the TCPA applies to Appellees’ tortious
interference counterclaims because the claims are based on, related to, or in response
to Caliber’s exercise of the right of free speech. The TCPA defines the “exercise of
the right of free speech” as a “communication made in connection with a matter of
public concern.” CIV. PRAC. & REM. § 27.001(3). A “matter of public concern”
includes an issue related to health or safety; environmental, economic, or community
well-being; the government; or a good, product or service in the marketplace. Id.
§ 27.001(7)(A)–(C), (E).
      Private communications made in connection with a matter of public concern
fall within the TCPA’s definition of the exercise of the right of free speech.
Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Further,
the TCPA does not require that the communications specifically mention a matter of
public concern or have more than a “tangential relationship” to such a matter.
Coleman, 512 S.W.3d at 900. Rather, the TCPA applies so long as the movant’s
statements are “in connection with” “issue[s] related to” any of the matters of public
concern listed in the statute. Id.
      In its opening brief on appeal, Caliber argues that its communications with
Whitley, Selmon, Clement, and the Hendersons about the purchase of interests in
the property were made in connection with an issue related to “economic matters,”
the government, and goods in the marketplace. In its reply brief, Caliber also asserts




                                           15
that its communications with Whitley, Selmon, and Clement were made in
connection with an issue related to community well-being.
       We first consider whether Caliber’s communications were made in
connection with a matter of public concern because they related to economic or
community well-being. See CIV. PRAC. & REM. § 27.001(7)(B). Caliber contends
that its communications with Whitley, Selmon, Clement, and the Hendersons were
made in connection with the purchase and sale of interests in the property and,
therefore, related to economic well-being. However, not every communication
about real property is a matter of public concern. See Mulcahy v. Cielo Prop. Grp.,
LLC, No. 03-19-00117-CV, 2019 WL 4383960, at *3 (Tex. App.—Austin Sept. 13,
2019, no pet. h.) (mem. op.) (declining to hold that “any exchange of information
owned by a real-estate enterprise is a matter of public concern”). Specifically,
“economic well-being” under the TCPA requires that a communication about real
property have an impact on more than the party’s personal financial well-being.
Schmidt v. Crawford, 584 S.W.3d 640, 650 (Tex. App.—Houston [1st Dist.] 2019,
no pet.). 9 In this case, Caliber’s communications with Whitley, Selmon, Clement,
and the Hendersons about the purchase of interests in the property related only to the
parties’ personal financial well-being and therefore were not made in connection
with an issue related to economic well-being.

       9
         Because the term “economic” is not defined in the TCPA, the Schmidt court relied on the common
meanings of “economic,” “economics,” and “economy.” See 584 S.W.3d at 650 (citing Economic, NEW
OXFORD AMERICAN DICTIONARY (3d ed. 2010) (defining term as “of or relating to economics or the
economy”); Economics, NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010) (defining term as “the
condition of a region or group as regards material prosperity”); Economy, NEW OXFORD AMERICAN
DICTIONARY (3d ed. 2010) (defining term as “the wealth and resources of a country or region,” especially
“in terms of the production and consumption of goods and services”); Economics, BLACK’S LAW
DICTIONARY (11th ed. 2019) (“The social science dealing with the production, distribution, and
consumption of goods and services.”); Economy, BLACK’S LAW DICTIONARY (11th ed. 2019)
(“management or administration of the wealth and resources of a community (such as a city, state, or
country)” or “sociopolitical organization of a community’s wealth and resources”)).



                                                  16
      Caliber also argues in its reply brief that its communications with Whitley,
Selmon, and Clement were related to community well-being because the
communications impacted the other owners of the property as well as persons who
sought to purchase either interests in the property or the property at auction. We
first note that, although Caliber asserted in the trial court that its communications
with Whitley, Selmon, and Clement were made in connection with a matter of public
concern, it did not argue in its motion to dismiss, in its reply to Appellees’ responses
to the motion to dismiss, or in its opening brief on appeal that those communications
were made in connection with community well-being. However, because the
“unique language” of the TCPA requires us to determine whether the statute applies
based on a holistic review of the pleadings, our de novo review is not limited to “the
precise legal arguments or record references a moving party made to the trial court
regarding the TCPA’s applicability.” Adams, 547 S.W.3d at 897. Therefore,
because Caliber raised in the trial court the issue that its communications with
Whitley, Selmon, and Clement were made in connection with a matter of public
concern, we will consider its argument on appeal that those communications related
to community well-being, a subpart of the statutory definition of “matter of public
concern.” See id. at 896 (“Adams raised as an issue in the trial court and the court
of appeals that he was entitled to dismissal under the TCPA because the defamation
claim was based on his speech about a matter of public concern. He was not required
on appeal or at trial to rely on precisely the same case law or statutory subpart that
we now find persuasive.”); Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 n.4
(Tex. 2014) (“We do not consider issues that were not raised in the courts below,
but parties are free to construct new arguments in support of issues properly before
the Court.”).




                                          17
        A communication is related to “community well-being” if it affects the well-
being of the community at large or at least a subset of its residents. Schmidt, 584
S.W.3d at 651; see also U.S. Anesthesia Partners of Tex., P.A. v. Mahana, No. 05-
18-01414-CV, 2019 WL 4044086, at *4 (Tex. App.—Dallas Aug. 27, 2019, pet.
filed) (noting that plain meaning of community well-being “refers to a group’s or
society’s state of being healthy or happy”). 10 Midland Visions pleaded that Caliber’s
communications with Whitley, Selmon, and Clement tortiously interfered with
Midland Visions’ contractual or prospective business relationship with the three
women. Midland Visions did not allege that the communications affected either the
community at large, any other owner of an interest in the property, or any other
person who was attempting to buy all or part of the property. Further, there is no
evidence that any person, other than Caliber and Midland Visions, was seeking to
purchase Whitley’s, Selmon’s, or Clement’s interests in the property. Finally, there
is no evidence that whether Caliber, as opposed to Midland Visions, acquired
Whitley’s, Selmon’s, or Clement’s interests in the property had any impact on the
community at large or even a subset of its residents. See Mahana, 2019 WL
4044086, at *4 (noting communication that did not relate to drug use in the
community at large or even within a subset of the community was not made in


        10
           Because “community” is not defined in the TCPA, the Schmidt court relied on the common
definition of “community.” See 584 S.W.3d at 651 (citing Community, NEW OXFORD AMERICAN
DICTIONARY (3d ed. 2010) (“a group of people living in the same place or having a particular characteristic
in common” or “a particular area or place considered together with its inhabitants”); Community, BLACK’S
LAW DICTIONARY (11th ed. 2019) (“neighborhood, vicinity, or locality” or “society or group of people with
similar rights or interests”)). The Mahana court relied on the common definitions of both “community”
and “well-being.” See 2019 WL 4044086, at *4 n.2 (citing Community, BLACK’S LAW DICTIONARY (11th
ed. 2019) (“1. A neighborhood, vicinity, or locality. 2. A society or group of people with similar rights or
interests.”); Well-being, DICTIONARY.COM, https://www.dictionary.com/browse/well-being (last visited
Aug. 7, 2019) (“a good or satisfactory condition of existence; a state characterized by health, happiness,
and prosperity; welfare”); Well-being, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (1981) (the
state of being happy, healthy, or prosperous)).



                                                    18
connection with an issue related to community well-being). On this record, we
cannot conclude that Caliber’s communications with Whitley, Selmon, and Clement
were made in connection with an issue related to community well-being.
      Caliber next asserts that its communications with Whitley, Selmon, Clement,
and the Hendersons were made in connection with an issue related to the government
because the Appraisal District had posted the property for sale. See CIV. PRAC. &
REM. § 27.001(7)(C). A communication is related to the “government” when it is
about governmental misconduct, Adams, 547 S.W.3d at 896; direct conduct by the
government, such as purchasing property, Schimmel v. McGregor, 438 S.W.3d 847,
859 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); or the operation of the
government, In re Lipsky, 411 S.W.3d 530, 543 (Tex. App.—Fort Worth 2013, orig.
proceeding), mandamus denied, 460 S.W.3d 579 (Tex. 2015); see also Riggs & Ray,
P.C. v. State, No. 05-17-00973-CV, 2019 WL 4200009, at *8 (Tex. App.—Dallas
Sept. 5, 2019, no pet. h.) (mem. op.) (noting that government’s financial relationship
with a party was a matter of public concern under Section 27.001(7)(C)).
      Here, there are no allegations, and no evidence, that Caliber’s
communications were about any misconduct by the Appraisal District when it posted
the property for sale, the operations of the Appraisal District, or the purchase of the
property by the Appraisal District. Rather, Caliber’s communications with Whitley,
Selmon, Clement, and the Hendersons related to the purchase of private interests in
the property through private sales. The fact that the posting of the property for sale
by the Appraisal District was the impetus for Caliber’s decision to purchase interests
in the property and for Whitley’s, Selmon’s, Clement’s, and the Hendersons’
decision to sell their interests in the property did not make Caliber’s communications
about the purchase of those interests related to the “government.”




                                          19
      Caliber finally argues that, because the property is a “good,” Caliber’s
communications with Whitley, Selmon, Clement, and the Hendersons were made in
connection with an issue related to a good in the marketplace. See CIV. PRAC. &
REM. § 27.001(7)(E). To support its argument, Caliber relies on Quintanilla v. West,
534 S.W.3d 34, 45 (Tex. App.—San Antonio 2017), reversed on other grounds, 573
S.W.3d 237 (Tex. 2019), in which the San Antonio Court of Appeals held that
financing statements filed in the public records were communications made in
connection with an issue related to a good in the marketplace because the filing
provided notice to the public of an encumbrance on “real property offered for sale
in the public marketplace.”
      In Schmidt, the Houston First Court of Appeals disagreed with the holding in
Quintanilla. 584 S.W.3d at 649. In Schmidt, hundreds of plaintiffs alleged that the
defendants required them to sign deeds of trust for their homes as security for bail
bond loans, fraudulently altered the deeds to inflate the amount of the indebtedness,
and filed the deeds in the public records, thereby creating illegal liens on the
plaintiffs’ homesteads. Id. at 646. The defendants filed a motion to dismiss pursuant
to the TCPA, id., and alleged, in part, that the TCPA applied to the plaintiffs’ claims
because the filings in the public records were communications that related to the
“transferability of real property” and therefore qualified as a matter of public concern
as a good in the marketplace, id. at 649.
      Because the TCPA does not define the term “good,” the Houston First Court
of Appeals looked to the common meaning of the term. Id. It noted that “‘[g]oods’
ordinarily refer to tangible or moveable personal property, as opposed to realty.” Id.
(citing Goods, NEW OXFORD AMERICAN DICTIONARY (3d ed. 2010) (defining term
as “merchandise or possessions”); Goods, BLACK’S LAW DICTIONARY (11th ed.
2019) (defining term to include tangible or moveable personal property other than


                                            20
money, particularly merchandise, and referring to “goods and services” as an
illustration of the term’s ordinary usage); Realty, BLACK’S LAW DICTIONARY (11th
ed. 2019) (defining “realty” or “real property” as “land and anything growing on,
attached to, or erected on it”)). The court held that the common meaning of “good”
is not “broad enough to embrace real property,” that the TCPA “does not expand the
definition of ‘good’ beyond its ordinary usage,” and that the language of the statute
could not be judicially amended “to give the term a more expansive meaning than it
ordinarily bears.” Id. at 649–50. We find Schmidt’s reasoning to be persuasive and
hold that real property is not a “good” under Section 27.001(7)(C) of the TCPA.
Therefore, Caliber’s communications with Whitley, Selmon, Clement, and the
Hendersons about the purchase of interests in the property were not related to a good
in the marketplace.
      We hold that the trial court did not err when it determined that Caliber failed
to establish by a preponderance of the evidence that Appellees’ tortious interference
counterclaims or the Hendersons’ request that Caliber’s claims be dismissed were
based on, related to, or in response to Caliber’s exercise of the right to petition, right
of association, or right of free speech. Accordingly, we overrule Caliber’s first issue.
Given our conclusion that Caliber failed to meet its burden to establish that the
TCPA applies to Appellees’ tortious interference counterclaims and the Hendersons’
request that Caliber’s claims be dismissed, we do not reach Caliber’s second issue
in which it asserts that Appellees failed to establish by clear and specific evidence a
prima facie case of each essential element of their claims. See TEX. R. APP. P. 47.1.
      Attorney’s Fees and Costs
      In its third and fourth issues, Caliber contends (1) that, because its motion to
dismiss should have been granted, the trial court erred when it failed to award Caliber




                                           21
attorney’s fees, costs, and sanctions and (2) that the trial court erred when it awarded
Midland Visions attorney’s fees and costs.
      We review the trial court’s decision to award attorney’s fees under the TCPA
for an abuse of discretion. Sullivan v. Tex. Ethics Comm’n, 551 S.W.3d 848, 857
(Tex. App.—Austin 2018, pet. denied); see also Pinghua Lei v. Natural Polymer
Int’l Corp., 578 S.W.3d 706, 717 (Tex. App.—Dallas 2019, no pet.). A trial court
abuses its discretion when it acts arbitrarily or unreasonably or without regard to
guiding principles. Sullivan, 551 S.W.3d at 857; see also Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).
      If a trial court grants a motion to dismiss under the TCPA, it is required to
award the moving party (1) court costs, reasonable attorney’s fees, and other
expenses incurred in defending against the 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 from bringing similar actions. CIV. PRAC. &
REM. § 27.009(a). As discussed above, the trial court properly denied Caliber’s
motion to dismiss; therefore, Caliber was not entitled to an award of attorney’s fees,
costs, or sanctions. We overrule Caliber’s third issue.
      If the trial court finds that the motion to dismiss was frivolous or solely
intended to delay, it may award costs and reasonable attorney’s fees to the
nonmovant. Id. § 27.009(b). “[A] finding that a motion to dismiss is not well taken
must precede an award of the respondent’s attorney’s fees under Section 27.009(b).”
In re Estate of Calkins, 580 S.W.3d 287, 300 (Tex. App.—Houston [1st Dist.] 2019,
no pet.). The trial court found that Caliber’s motion to dismiss was frivolous and
solely intended for delay and awarded Midland Visions $34,872.50 for reasonable
court costs and attorney’s fees. Caliber contends that there is no legal or factual
basis or evidence to support the trial court’s findings.


                                          22
      “Frivolous” is not defined in the TCPA. However, “the word’s common
understanding 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.” Sullivan, 551
S.W.3d at 857 (internal quotation marks, citations, and alterations omitted); see also
Pinghua Lei, 578 S.W.3d at 717. Caliber argues that the motion to dismiss was not
frivolous because “courts have found that the [TCPA] applies to claims for tortious
interference with existing and prospective business relations” and that the facts
demonstrate that the motion to dismiss was not frivolous.
      We have determined that Caliber’s motion to dismiss did not have a basis in
fact. Further, the cause of action alleged by the nonmovant is not determinative of
whether a TCPA motion to dismiss has a basis in law. Rather, prior to filing the
motion to dismiss, the movant must evaluate whether there is a legal basis to assert
that the nonmovant’s legal action is based on, related to, or in response to the
movant’s exercise of a right protected by the statute.         CIV. PRAC. & REM.
§§ 27.003(a), .005.      This necessarily involves an analysis of the specific
communications underlying the nonmovant’s claims. See Cheniere Energy, Inc. v.
Lotfi, 449 S.W.3d 210, 216–17 (Tex. App.—Houston [1st Dist.] 2014, no pet.)
(noting that there must be some “nexus” between the “communication used to invoke
the TCPA and the generally recognized parameters of First Amendment protections”
in order to avoid “draw[ing] within the TCPA’s summary dismissal procedures
private suits implicating only private issues”); see also CIV. PRAC. & REM.
§ 27.003(a) (party may file a motion to dismiss if legal action “is based on, relates
to, or is in response to” protected activity).
      There is no indication in the record that Caliber performed such an analysis
prior to filing the motion to dismiss. Caliber also did not include any substantive
analysis in its motion to dismiss as to why its private communications with Whitley,


                                           23
Selmon, or Clement over a private business transaction constituted the exercise of a
protected right under the statute. The fact that the TCPA may apply to some tortious
interference claims based on different facts and communications is not, standing
alone, a sufficient basis in law for Caliber to assert that it exercised a right protected
by the TCPA when it communicated with Whitley, Selmon, or Clement.
       We stress that the fact that a motion to dismiss under the TCPA is ultimately
denied is not sufficient, in and of itself, to support a finding that the motion was
frivolous. However, on this record, we cannot conclude that the trial court abused
its discretion when it determined that Caliber’s motion to dismiss was frivolous.
Therefore, we need not address whether the trial court abused its discretion when it
found that the motion to dismiss was solely intended for delay. See TEX. R.
APP. P. 47.1. We overrule Caliber’s fourth issue.
                                      This Court’s Ruling
       We affirm the order of the trial court.




                                                             KEITH STRETCHER
                                                             JUSTICE


November 27, 2019

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.




                                                24
