                         In the
                    Court of Appeals
            Second Appellate District of Texas
                     at Fort Worth
                 ___________________________
                      No. 02-19-00438-CV
                 ___________________________

MIKE FARHAT, US GLOBAL ASSET INVESTMENTS, LLC, JOHN MARTIN
FAUBUS, TRACY L. TRIMBLE, MARY MARTINEZ, MICHAEL W. BROOME,
           AND MICHAEL W. BROOME, P.C., Appellants

                                V.

 WILSON SCOTT, LLC D/B/A CAPITAL ASSET RESOURCES, Appellee



               On Appeal from the 17th District Court
                      Tarrant County, Texas
                  Trial Court No. 017-308014-19


               Before Kerr, Womack, and Wallach, JJ.
              Memorandum Opinion by Justice Wallach
                            MEMORANDUM OPINION

          This is an anti-SLAPP appeal.     Wilson Scott, LLC d/b/a Capital Asset

Resources (CAR) sued its competitor, US Global Asset Investments, LLC; its founder

Mike Farhat; US Global employees (and former CAR employees) Tracy L. Trimble

and Mary Martinez; US Global salesperson (and former CAR salesperson) John

Martin Faubus; and attorney Michael W. Broome and Michael W. Broome, P.C.

(collectively, Broome), who had prepared documents and provided legal advice for US

Global. The defendants (here, Appellants) filed a motion to dismiss CAR’s claims

under the Texas Citizens Participation Act (TCPA), and the trial court denied the

motion. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003. In four issues, Appellants

challenge the trial court’s denial of their TCPA motion (issues one and two), its failure

to exclude evidence (issue three), and its order stating that CAR “may be entitled” to

recover its attorney’s fees (issue four). Because the trial court correctly denied the

TCPA motion and we have no attorney’s fees award to review, we affirm.

                                     Background

          CAR is in the leasing business.   It finds customers to lease vehicles and

equipment, and it works with financial institutions to arrange financing for those

leases.     Martinez worked for CAR, as did Trimble, who served as CAR’s chief

operating officer.    Faubus, acting as an independent contractor, found potential

lessees for CAR. Broome represented CAR in several litigation and business matters.

Farhat was a CAR customer who knew Trimble from her previous job with a bank.

                                            2
Farhat established US Global on January 23, 2019. On January 31, 2019, Trimble

resigned from CAR. Martinez resigned four days later. Both went to work for US

Global, as did Faubus.

      In its petition, CAR alleged that in the fall of 2018, Trimble, Martinez, and

Faubus began discussing forming their own business to compete with CAR, that they

approached Farhat as a possible source of funds, and that Broome “assist[ed] in their

plan’s implementation” without disclosing to CAR that its associates were planning a

competing business or that he had advised them about it. CAR further alleged that

Trimble, Martinez, and Faubus began to “poach” CAR’s clients while they still

worked for CAR and that, both before and after leaving CAR, they had used CAR’s

confidential information for their new business.

      Based on these allegations, CAR asserted claims for breach of fiduciary duty

(against Trimble, Martinez, Faubus, and Broome); aiding, abetting, and knowingly

participating in breaches of fiduciary duty (against all Appellants); conspiracy (against

all Appellants); tortious interference with contracts, prospective contracts, and actual

and prospective business relationships (against Trimble, Martinez, Faubus, Farhat, and

US Global); conversion and unjust enrichment (against Faubus and US Global); and

breach of contract (against Faubus).

      Appellants filed a joint TCPA motion to dismiss CAR’s claims, contending that

those claims were based on, related to, or were in response to their exercise of their

rights of free speech and of association. Appellants argued that CAR’s claims arose

                                           3
from communications that were made (1) by individuals who joined together to

collectively express, promote, pursue, or defend a common interest in developing and

maintaining US Global as a successful business and as CAR’s competitor and (2) in

connection with US Global’s providing services in the marketplace, which is a matter

of public concern. CAR filed a response asserting that Appellants had failed to show

that the TCPA applied. In Appellants’ reply, they objected to evidence that CAR had

attached to its TCPA response, and they moved to strike certain affidavits.

      The trial court heard the TCPA motion on October 7, 2019. On November 6,

2019, the trial court signed an order denying the motion, stating that CAR “is entitled

to recover its court costs and reasonable attorney’s fees,” and ordering CAR to submit

evidence of its fees and costs and to request a hearing. [Emphasis added.] On

November 25, the trial court signed an amended order, which changed the “is entitled

to” language in the November 6 order to “may be entitled.” See Act of May 24, 2011,

82nd Leg., R.S., ch. 341, H.B. 2973, § 2 (amended 2019) (current version at Tex. Civ.

Prac. & Rem. Code Ann. § 27.009(c))1 (providing that a trial court may award court

costs and reasonable attorney’s fees to the nonmovant if the court finds that the

TCPA motion is frivolous or solely intended to delay). The next day, Appellants filed

a notice of appeal from the trial court’s order “signed November 6, 2019 and

      For ease of reference, when citing to a section of the TCPA that has been
      1

amended since the filing of this suit, we initially cite the session law of the now-
amended section, but subsequent citations will simply cite to the current section
number.


                                          4
amended November 25, 2019” and an objection to the trial court’s failure to rule on

their evidentiary objections and motion to strike.

                                  Appellants’ Issues

I.    Application of the TCPA

      In their first issue, Appellants argue that the TCPA applies to this case because

CAR’s claims are based on, related to, or in response to Appellants’ exercise of their

rights of free speech and of association. Appellants had the burden to show by a

preponderance of the evidence that the TCPA applies. See Tex. Civ. Prac. & Rem.

Code Ann. § 27.005(b). Appellants disputed most of the facts in CAR’s petition.

However, “[t]he basis of a legal action is not determined by the defendant’s

admissions or denials but by the plaintiff’s allegations,” and as such, the plaintiff’s

petition “is the best and all-sufficient evidence of the nature of the action.” Hersh v.

Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards Nat’l Bank v. Maples,

95 S.W.2d 1300, 1302 (Tex. [Comm’n App.] 1936)); see also Tex. Civ. Prac. & Rem.

Code Ann. § 27.006 (providing that the pleadings constitute evidence a trial court

must consider in ruling on a TCPA motion); Gaskamp v. WSP USA, Inc., No. 01-18-

00079-CV, 2020 WL 826729, at *16 (Tex. App.—Houston [1st Dist.] Feb. 20, 2020,

no pet. h.) (op. on reh’g en banc). We therefore begin our analysis by looking at

CAR’s pleadings.




                                           5
      A.     CAR’s allegations

      CAR pled the following facts. Trimble and Martinez were CAR employees.

Faubus worked for CAR as an independent contractor, but he and CAR “understood

and agreed” that he worked exclusively for CAR. All three of these defendants

developed and created “financial data/trade secrets” in the course of their work at

CAR, and CAR kept this information—including “potential lease customers, their

leasing needs, the sources of possible capital (i.e., the lenders)[,] and all information

regarding the entire leasing process”—strictly confidential.

      CAR’s potential lease customers gave CAR confidential financial information,

and to protect this information, CAR requested lenders financing the leases to sign

nondisclosure agreements (NDAs). While the general elements of how to conduct an

equipment and vehicle leasing business are not trade secrets, the information CAR

kept about the identity of existing and potential lessees, the lenders who were

available to fund certain types of leases, and the lenders’ exact requirements and

financing terms is not known to the general public. Trimble, Martinez, and Faubus

were regularly given access to this confidential information. CAR had a leasing

relationship with Farhat, and as such, Farhat was in a position to see how CAR

handled its business and the safeguards that CAR required its employees and agents to

use to protect confidential data.

      Trimble, Martinez, and Faubus began planning to leave CAR to work for US

Global, Farhat’s new competing business. Before they left CAR, however, as a way to

                                           6
get a “running start” for the new business, they began using CAR’s customer base and

confidential information. They planned to make new leases to CAR’s customers and,

in some cases, replace CAR’s existing leases with new US Global leases that offered

lower rates or better terms. Appellants told other CAR employees to stall several in-

progress CAR leasing opportunities that Appellants then diverted to US Global.

During this time, Faubus, Trimble, and Martinez were actively soliciting business for

US Global using relationships and financial data developed by CAR, and Faubus did

not disclose to CAR that he was no longer acting exclusively for CAR. Appellants

also copied some of CAR’s forms for use by US Global.

      Broome advised Faubus, Trimble, and Martinez about their proposed

relationship with US Global, gave them legal advice supporting a competing bid with

a customer CAR was actively negotiating with, and advised them on creating internal

“form” leases and other documents. Broome never disclosed to CAR that Broome

had advised Appellants on their competing business.

      CAR further alleged that Appellants continued to use CAR’s confidential

information after Trimble, Martinez, and Faubus left CAR. For example, CAR had an

NDA with Point Bank, and Appellants used confidential customer data that CAR had

disclosed to Point Bank under that NDA. Further, on behalf of US Global, Faubus

gave lease documents to a longstanding CAR customer, W.T. Fiberlink, and he used a

CAR/W.T. Fiberlink application to apply for funding with a lender. CAR pled that as



                                         7
a result of Appellants’ actions as alleged in the petition, CAR lost existing business

and potential business opportunities.

       B.     Right of association

       We now turn to Appellants’ argument that CAR’s claims were based on, related

to, or in response to their exercise of the right of association. The applicable version

of the TCPA defines the “exercise of the right of association” as “a communication

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

defend common interests.” Act of May 24, 2011, 82nd Leg., R.S., ch. 341, H.B. 2973,

§ 2 (amended 2019) (current version at Tex. Civ. Prac. & Rem. Code Ann.

§ 27.001(2)). The plain meaning of the word “common” in this definition “requires

more than two tortfeasors conspiring to act tortiously for their own selfish benefit.”

Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 588 (Tex. App.—Fort Worth 2019, pet.

denied). Rather, the statute “requir[es] interests common to the public or a group.”

Id. at 575.

       Here, CAR alleged that Appellants conspired to and did take its confidential

information in order to compete with CAR and that they used that information to

poach CAR’s existing and potential clients. They presumably communicated with

each other to accomplish these acts, 2 assuming that CAR’s allegations are true.


       2
        Not every act complained of by CAR necessarily involved communications;
for example, CAR’s petition did not allege any factual details about how Appellants
took its confidential information—whether they did so by saving electronic data to a
portable hard drive, by transmitting the information to another person, or some other

                                           8
However, the common interest they joined together to pursue is not an interest that

the TCPA protects; the “common interest” here is, allegedly, tortfeasors breaching

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

interest common to the public or a larger group. See id. at 575, 588.

      Appellants argue that CAR’s allegations implicate two common interests: “the

business of US Global, operating as CAR’s competitor,” and the community’s interest

in a free and competitive marketplace. They assert that CAR’s claims are based on,

related to, or in response to “communications about forming US Global, providing

services to US Global, or soliciting or providing services of US Global in the broader

leasing marketplace in competition with CAR.” However, CAR did not assert claims

based on the fact that Appellants were competing with it or communicating about

competing. Its claims are based on allegations about how Appellants competed: by

breaching fiduciary duties owed to CAR and by taking or conspiring with others to

take its confidential information. The communications alleged by CAR are thus not

protected by the TCPA. 3 See id.


method. However, for purposes of our analysis, we will assume that, aside from the
breach of fiduciary duty claim against Broome, each of CAR’s claims involved
communications.
      3
        Appellants essentially argue that CAR’s purpose in suing them is nothing more
than an attempt to quash competition. However, regardless of CAR’s true motivation
in suing Appellants, we determine whether the TCPA applies based on CAR’s
allegations, and the factual basis pled by CAR for its claims is not communications
involving Appellants’ exercise of rights protected by the TCPA.


                                           9
      In Appellants’ reply brief, they attempt to distinguish Kawcak by noting that

“[c]ases citing Kawcak have generally held that [the] TCPA right of association does

not apply to communications between tortfeasors that misappropriate confidential

business information or implicate confidentiality agreements,” but that here, CAR’s

suing Broome with the other defendants “show[s] that the communications here are

different from Kawcak or the cases trying to draw a distinction for ‘private business’

disputes.”4 They contend that “CAR does not allege that Broome had an interest in

[US Global] or in [US Global]’s business. The only association alleged involving

Broome is that he provided services to [US Global] as its attorney and communicated

with [US Global] employee(s) providing legal advice.”5 This argument does not help


      4
        Appellants also attempt to distinguish Kawcak by pointing out that it involved
two tortfeasors and that this court stated in that case that “the interests of two
conspirators who join together to commit a tort do not cross the threshold of
common and thus do not bring the conspirators within the protections of the TCPA.”
Kawcak, 582 S.W.3d at 576. Appellants note that here, the claims against Appellants
extend beyond “a set of only two people.” However, Kawcak did not hold that a
group of more than two alleged tortfeasors with a common interest constitutes a
group for purposes of making their shared interest a “common interest” under the
TCPA; this court specifically stated that in that case we were not required to
determine what size group must share an interest before that interest qualifies as a
“common interest” under the TCPA. Id. We need not decide that question in this
case either. We hold merely that under the facts of this case, Appellants’ alleged
interest in committing torts to further private business interests does not qualify as a
“common interest” for purposes of the TCPA.
      5
         As we discuss below, we recognize that Texas law generally protects an
attorney from liability for his conduct in his representation of a client when sued by
someone other than that client. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481,
483 (Tex. 2015). However, the existence of this protection is not determinative of the
initial question of whether a claim against the attorney is based on, relates to, or arises

                                            10
Appellants. The common interest that Appellants raised in their TCPA motion—the

purpose for which they allegedly joined together—was developing and maintaining

US Global as CAR’s competitor.          CAR’s petition contains no facts or claims

indicating that Broome shared that same interest or joined them for the purpose of

promoting, pursuing, or defending it, and Appellants’ TCPA motion does not

contend that he did so.         Thus, Broome’s inclusion does not make Kawcak

distinguishable; Appellants admit that Broome did not join with the other Appellants

to pursue a common interest, and, even if he had, the common interest is one that,

under Kawcak, is not protected by the TCPA. See id. at 575, 588.

      C.     Right of free speech

      Appellants further argue under their first issue that CAR’s claims are based on,

related to, or in response to Appellants’ exercise of the right of free speech. The

applicable version of the TCPA defines the “exercise of the right of free speech” as “a

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

“matter of public concern” as including “an issue related to: (A) health or safety; (B)

environmental, economic, or community well-being; (C) the government; (D) a public

official or public figure; or (E) a good, product, or service in the marketplace.” Act of

May 24, 2011, 82nd Leg., R.S., ch. 341, H.B. 2973, § 2 (amended 2019) (current

out of the attorney’s exercise of the rights protected by the TCPA. Further, our
acknowledgment of the existence of this protection is not a comment on whether it
could apply to a case in which a client’s suit against its former attorney is based not on
communications the attorney has with another client but on the failure to disclose a
conflict of interest.

                                           11
version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3), (7)). Citing the Texas

Supreme Court’s opinion in Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC,

Appellants assert that CAR’s claims are based on, related to, or in response to their

communications with each other about forming and developing US Global and their

communications with other businesses, including any potential customers and lenders

in the equipment-leasing marketplace, and that these communications “clearly ‘have

some relevance to a public audience of potential buyers or sellers’ or at least ‘could

reasonably be characterized as involving public concerns.’” 591 S.W.3d 127, 130, 136.

Appellants argue that business associates have a right to communicate amongst

themselves about customers and that individuals generally have the right to compete

with former employers, see Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 510 (Tex.

App.—Houston [1st Dist.] 2003, no pet.), and they assert that the communications on

which CAR’s claims are based meet two different parts of the definition of “matter of

public concern”:    relating to economic and community interests (by promoting

competition) and relating to a service in the marketplace.

      Turning first to CAR’s claims against Broome, we conclude that they do not

fall within the TCPA’s protection of free speech.        Appellants argue that “[t]he

foundation of [CAR’s] complaint against Broome is not based on his advice to CAR,

but on his association and provision of legal advice to CAR’s competitor, i.e.[,]

services provided in the public marketplace to CAR’s competitor.” CAR’s claims

against Broome, however, are solely based on his alleged nondisclosure: CAR alleged

                                          12
that Broome had a fiduciary duty to disclose any conflicts of interest and that, in

violation of that duty, Broome never told CAR that he was representing the other

Appellants “with respect to their efforts to leave CAR, create a company to compete

with CAR, take confidential information and customer financial data with them, etc.,

and [his] decisions to provide them with legal advice in their joint and mutual efforts

to compete against CAR, generally.” Claims that are based on, related to, or in

response to the absence of communication do not fall within the TCPA. See Tex. Civ.

Prac. & Rem. Code Ann. § 27.001(1) (defining “communication” under the TCPA as

the making or submitting of a statement or document); Ray v. Fikes, No. 02-19-00232-

CV, 2019 WL 6606170, at *3 (Tex. App.—Fort Worth Dec. 5, 2019, pet. denied)

(mem. op.) (stating that the definition of “communication” in the TCPA does not

include the failure to communicate, and thus plaintiff’s claims against her former

attorney for failing to file a claim within the limitations period did not fall within the

TCPA).

      CAR also included Broome in its conspiracy claims, asserting that he

participated in a conspiracy with the other Appellants to breach his fiduciary duty to

CAR. Conspiracies generally involve communications among the conspirators. See

Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave, 590 S.W.3d 647,

651 n.9 (Tex. App.—Houston [14th Dist.] 2019, pet. filed). Thus, CAR impliedly

alleged that Broome, in conspiring with the other Appellants to breach his fiduciary

duty to CAR, communicated something to the other Appellants. However, CAR did

                                           13
not describe or reference any communications between Broome and the other

Appellants related to or in furtherance of this particular conspiracy, and we therefore

cannot say that these communications, whatever they were, were on a matter of public

concern. While CAR did plead some specific communications by Broome—it alleged

that he provided documents to the other Appellants, and it stated that it “reasonably

believes” that Broome advised Appellants that they “were ‘entirely free’ to do what

they wanted in terms of future competition with CAR”—those communications are

unrelated to Broome’s alleged nondisclosure in breach of his fiduciary duty to CAR or

to CAR’s claim of a conspiracy to breach Broome’s fiduciary duty by not disclosing

the other Appellants’ actions. We therefore cannot say that CAR based its conspiracy

claim against Broome on communications involving a matter of public concern.6


      6
        Our holding that the TCPA does not apply to CAR’s claims against Broome is
not a comment on the ultimate viability of these claims. Further, while the TCPA
does not apply to the claims against Broome here, we do not hold that an attorney
may never obtain dismissal of a claim under the TCPA. In order to give attorneys
latitude to practice their profession, Texas law provides the affirmative defense of
attorney immunity, which generally protects attorneys from liability to nonclients for
an attorney’s acts and communications in representation of a client. Cantey Hanger,
467 S.W.3d at 481, 483. As CAR acknowledged in its response to the TCPA motion,
the TCPA does not abrogate any defense, immunity, or privilege under the law. Thus,
even if the TCPA applies to a claim against an attorney and the plaintiff makes a
prima facie case for the claim, the TCPA would not abrogate the attorney-immunity
defense—if, that is, that defense applies under the facts of the case. See, e.g., Rogers v.
Walker, No. 09-15-00489-CV, 2017 WL 3298228, at *5 (Tex. App.—Beaumont Aug.
3, 2017, pet. denied) (mem. op.) (applying attorney immunity in the context of estate
administration and disagreeing with the appellant’s argument that the doctrine applies
only to an attorney’s conduct in the litigation context); Santiago v. Mackie Wolf Zientz &
Mann, P.C., No. 05-16-00394-CV, 2017 WL 944027, at *4 (Tex. App.—Dallas Mar.
10, 2017, no pet.) (mem. op.) (citing Cantey Hanger to reject the argument that attorney

                                            14
       As for the claims against the remaining Appellants, two cases guide our

analysis. First, in Creative Oil & Gas, the Texas Supreme Court construed the TCPA’s

definition of the phrase “matter of public concern” and held that “the definition

confirms that the right of free speech involves communications connected to ‘a

matter of public concern’” and that the phrase does not commonly refer to “purely

private matters.” 591 S.W.3d at 134. Thus, although the definition includes issues

related to economic well-being, that a claim that affects the economic interest of the

parties does not by itself make a claim one that related to economic well-being so as

to qualify as a matter of public concern under the TCPA. See id. at 137. The court

concluded that “[a] private contract dispute affecting only the fortunes of the private

parties involved is simply not a ‘matter of public concern’ under any tenable

understanding of those words.” Id.


immunity applies only to attorneys involved in litigation); Farkas v. Wells Fargo Bank,
N.A., No. 03-14-00716-CV, 2016 WL 7187476, at *8 (Tex. App.—Austin Dec. 8,
2016, no pet.) (mem. op.); Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398,
408 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (discussing immunity in
context of plaintiff’s claims against alleged tortfeasor’s attorney and holding that the
attorney had immunity for “acts taken and communications made to facilitate the
rendition of legal services” to the attorney’s client when the attorney had no legal
privity with the plaintiff and no independent duty to the plaintiff together with the
plaintiff’s justifiable reliance on the attorney’s act or representation); see also Troice v.
Greenberg Traurig, L.L.P., 921 F.3d 501, 505–06 (5th Cir. 2019) (concluding that the
Texas Supreme Court would apply attorney immunity in a non-litigation context);
LJH, Ltd. v. Jaffe, No. 4:15-CV-00639, 2017 WL 447572, at *2–3 (E.D. Tex. Feb. 2,
2017) (applying attorney immunity to conduct during sale of business). But see NFTD,
LLC v. Haynes & Boone, LLP, 591 S.W.3d 766, 776 (Tex. App.—Houston [14th Dist.]
2019, pet. filed). To be clear, we make no determination whether the attorney-
immunity defense applies here.

                                             15
      Second, the Dallas court of appeals recently applied similar reasoning in

analyzing whether the TCPA applied to tort claims.         In Goldberg v. EMR (USA

Holdings) Inc., the plaintiffs alleged that the defendants had used the plaintiffs’

confidential information in e-mails sent by the defendants to purchasers and suppliers.

594 S.W.3d 818, 826 (Tex. App.—Dallas 2020, no pet. h.) (op. on reh’g). The

defendants argued that the e-mails were communications on a matter of public

concern because they related to a good, product, or service in the marketplace and,

because they involved recycling scrap metal, related to health or safety, or

environmental, economic, or community well-being. Id. at *826–27. Citing Creative

Oil & Gas, the Dallas court held that while the e-mails were communications made in

connection with an issue related to a good, product, or service in the marketplace

(scrap metal), the e-mails were not made in connection with a matter of public

concern because they were “private communications between private parties about

purely private economic matters.” Id. at 830; see also Pinghua Lei v. Nat. Polymer Int’l

Corp., 578 S.W.3d 706, 715 (Tex. App.—Dallas 2019, no pet.) (holding that the

defendants’ communications about misappropriation of their former employer’s

confidential information were not related to a matter of public concern). The Dallas

court further held that

      [e]ven though Defendants’ business of purchasing and selling scrap
      metal may have many beneficial effects and involve matters of health or
      safety, and environmental, economic, or community well-being, the
      communications in this case did not involve those matters. Instead, they
      concerned Defendants’ offers to buy or sell scrap metal. The

                                          16
          communications did not discuss the benefits of recycling, nor did the
          communications seek to promote health or safety, or environmental,
          economic, or community well-being. Instead, they were private
          communications regarding private commercial transactions for the
          purchase and sale of a commodity, scrap metal. Plaintiffs’ claims are
          related to Defendants’ use of Plaintiffs’ confidential information to make
          purchases and sales.       Plaintiffs’ claims are not related to any
          communications by Defendants concerning the beneficial effects of
          recycling provided by the scrap-metal industry.

Goldberg, 594 S.W.3d at 830.

          We agree that communications are not on a matter of public concern if the

communications are private communications related to purely private commercial

business or transactions and, through those communications, the defendants breach

fiduciary duties to the plaintiff or misappropriate the plaintiff’s confidential

information in order to pursue the business or transaction. Accordingly, we reject

Appellants’ argument that the alleged communications here were on matters of public

concern. Because CAR’s claims against Appellants are not based on communications

relating to a matter of public concern, we overrule the remainder of Appellants’ first

issue.7

          In their second issue, Appellants argue that CAR failed to establish a prima

facie case for each essential element of each cause of action. In their third issue,

Appellants argue that the trial court abused its discretion by failing to strike affidavits



       As always at this stage of proceedings, our holding that the TCPA does not
          7

apply to the claims at issue is not a comment on the merits of CAR’s claims.


                                             17
from CAR’s owner and two CAR employees. Because the TCPA does not apply to

CAR’s claims, we do not address these issues. See Tex. R. App. P. 47.1.

II.   Attorney’s fees

      In their fourth and final issue, Appellants argue that the trial court erred by

ruling that CAR “may be entitled” to recover its attorney’s fees because there is no

basis to conclude their TCPA motion was frivolous or solely for purposes of delay.

The trial court’s November 25 amended order stated that CAR may be entitled to

attorney’s fees, and it required CAR to submit evidence of its fees and to set a hearing

on the matter. The trial court has not yet determined whether CAR is entitled to

reasonable attorney’s fees and, if so, what amount to award. Accordingly, we have no

attorney’s fees award to review, and any holding by this court on that issue would be

an improper advisory opinion. See McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227,

232 (Tex. 2001). We thus overrule Appellants’ fourth issue.

                                CAR’s Cross-Points

I.    The trial court’s jurisdiction

      In CAR’s first point, it argues that the trial court had no jurisdiction to render

its November 25 amended order because, under TCPA Section 27.005, a trial court

has only thirty days after the hearing on a TCPA motion to rule on the motion, and

because the hearing was held on October 6, 2019, the deadline to rule on the motion

was November 6. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005. CAR is correct

that the trial court has only thirty days after a hearing on a TCPA motion to decide

                                          18
whether to dismiss the challenged claims. See id. However, the TCPA does not

require the trial court to rule on the question of attorney’s fees within that time. See

id. § 27.009. Rather, the TCPA “allows a trial court to sign an order ruling on the

merits of a TCPA motion—from which, in the event of a denial, an interlocutory

appeal may be taken . . . —and then to resolve the issue of attorney’s fees in a

separate, later order.” Eureka Holdings Acquisitions, L.P. v. Marshall Apartments, LLC,

No. 03-19-00806-CV, 2020 WL 579572, at *2 (Tex. App.—Austin Feb. 6, 2020, no

pet. h.); see also Leniek v. Evolution Well Servs., LLC, No. 14-18-00954-CV,

2019 WL 438825, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2019, no pet.)

(mem. op.) and DeAngelis v. Protective Parents Coal., 556 S.W.3d 836, 859–60 (Tex.

App.—Fort Worth 2018, no pet)). Given that the TCPA does not require a ruling on

attorney’s fees within thirty days of the TCPA hearing and that the November 6 order

was not a final judgment, the trial court had jurisdiction on November 25 to modify

its November 6 order as to attorney’s fees. See Bowman v. The Bank of N.Y. Mellon Tr.

Co., N.A., No. 05-13-01684-CV, 2016 WL 258765, at *4 (Tex. App.—Dallas Jan. 21,

2016, pet. denied) (mem. op.). We overrule CAR’s first point.

II.   This court’s jurisdiction

      In CAR’s second point, it argues that this court has no jurisdiction over this

appeal because the appeal was taken only from the trial court’s November

25 amended order, an order that CAR asserts was void because it was signed more

than thirty days after the TCPA hearing. We have rejected CAR’s contention that the

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November 25 amended order was void; as we have held, the trial court had

jurisdiction on November 25 to modify its prior interlocutory attorney’s fees order.

We therefore overrule CAR’s second point.

                                   Conclusion

      Having overruled Appellant’s dispositive issue and CAR’s cross-points, we

affirm the trial court’s denial of Appellants’ TCPA motion, and we remand this case

for further proceedings.




                                                   /s/ Mike Wallach
                                                   Mike Wallach
                                                   Justice

Delivered: April 23, 2020




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