Gulf Coast Pros, LLC v. Monica Sweeney, Michael Sweeney, and Katie Sweeney-Scott
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Opinion
In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00320-CV __________________
GULF COAST PROS, LLC, Appellant
V.
MONICA SWEENEY, MICHAEL SWEENEY, AND KATIE SWEENEY-SCOTT, Appellees
__________________________________________________________________
On Appeal from the County Court at Law No. 6 Montgomery County, Texas Trial Cause No. 23-04-05901-CV __________________________________________________________________
MEMORANDUM OPINION
In this accelerated appeal, Appellant/Cross-Appellee Gulf Coast Pros, LLC
(“GCP” or “Plaintiff”) appeals the trial court’s final judgment granting
Appellees/Cross-Appellants Monica Sweeney (“Monica”), Michael Sweeney
(“Michael”), and Katie Sweeney-Scott’s (“Katie”) (collectively “the Sweeneys” or
“Defendants”) Texas Citizen’s Participation Act (“TCPA”) motion to dismiss a
claim for breaching the non-disparagement and confidentiality terms of the parties’
1 settlement agreement, and the Sweeneys cross appeal from the trial court’s denial of
their request for attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b)
(an appeal from order on a TCPA motion to dismiss is an accelerated appeal); see
also Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011 (the TCPA).1 As
explained below, we affirm the trial court’s judgment.
The TCPA Motions to Dismiss Under the TCPA
The TCPA provides that a party may file a motion to dismiss a legal action if
it is “based on or is in response to a party’s exercise of the right of free speech, right
to petition, or right of association or arises from any act of that party in furtherance
of the party’s communication or conduct described by Section 27.010(b)[.]” Tex.
Civ. Prac. & Rem. Code Ann. § 27.003(a). Section 27.005 of the TCPA provides as
follows, in relevant part:
(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party demonstrates that the legal action is based on or is in response to: (1) the party’s exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association; or (2) the act of a party described by Section 27.010(b).
1 The legislature enacted the TCPA “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.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. 2 (c) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question. (d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.
Id. at § 27.005(b)-(d).
Standard of Review
We review a trial court’s ruling on a TCPA motion to dismiss under a de novo
standard of review. Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45-
46 (Tex. 2021). Our de novo review includes a review to determine whether the
parties met their burdens of proof under the TCPA and whether a nonmovant has
presented clear and specific evidence establishing a prima facie case for each
essential element of the challenged claims. See id. We consider the pleadings and
affidavits stating the allegations upon which the claim or defense is based in the light
most favorable to the nonmovant. See Tex. Civ. Prac. & Rem. Code Ann. §
27.006(a); In re Lipsky, 460 S.W.3d 579, 586-87 (Tex. 2015); Push Start Indus.,
LLC v. Hous. Gulf Energy Corp., No. 09-19-00290-CV, 2020 Tex. App. LEXIS
9337, at *6 (Tex. App.—Beaumont Nov. 30, 2020, no pet.) (mem. op.) (citations
omitted). We consider evidence a court could consider under Rule 166a of the Texas
Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).
3 Three-Step Process Under the TCPA
The TCPA provides a three-step process courts must follow in deciding
whether to dismiss a “legal action” to which the TCPA applies. Montelongo v.
Abrea, 622 S.W.3d 290, 295-96 (Tex. 2021). First, the defendant who has moved to
dismiss must demonstrate that the plaintiff’s claim “is based on or is in response to
[the movant]’s exercise of the right of free speech, right to petition, or right of
association or arises from any act of [the movant] in the furtherance of [the
movant]’s communication or conduct described by Section 27.010(b).” Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(b) (internal formatting omitted); see also Tex.
Civ. Prac. & Rem. Code Ann. § 27.010(b).
Next, if the defendant meets its burden, the burden shifts to the plaintiff to
“‘establish[] by clear and specific evidence a prima facie case for each essential
element of the claim in question.’” ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 899 (Tex. 2017) (quoting Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c)); see also Montelongo, 622 S.W.3d at 296. Finally, if the plaintiff makes
this showing, the court will dismiss the action if the defendant “establishes an
affirmative defense or other grounds on which the moving party is entitled to
judgment as a matter of law.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d);
Montelongo, 622 S.W.3d at 296. Prima facie means “at first sight,” and under the
TCPA, a prima facie case is the “minimum quantum of evidence necessary to
4 support a rational inference that the allegation of fact is true.” USA Lending Grp.,
Inc. v. Winstead PC, 669 S.W.3d 195, 200 (Tex. 2023) (citing S&S Emergency
Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018); Prima facie,
Garner’s Dictionary of Legal Usage (3d ed. 2011)). Evidence is “clear and specific”
if it provides enough detail to show the factual basis for the claim. Id. (citing In re
Lipsky, 460 S.W.3d at 590-91). Such evidence need not be conclusive,
uncontroverted, or found credible. Id. (citing In re Lipsky, 460 S.W.3d at 590).
On the third step of the analysis, we examine whether the defendants have
established that they are entitled to judgment as a matter of law on their affirmative
defenses. See Rogers v. Bryan, No. 09-21-00338-CV, 2023 Tex. App. LEXIS 505,
at *49 (Tex. App.—Beaumont Jan. 26, 2023, no pet.) (mem. op.). When determining
whether a party who seeks to dismiss the plaintiff’s case under the TCPA has met
its burden on this third step, we apply a standard of review essentially equivalent to
a motion for summary judgment on an affirmative defense. Id.; H-E-B, L.P. v.
Maverick Int’l, Ltd., No. 09-21-00311-CV, 2022 Tex App. LEXIS 7428, at *10 (Tex.
App.—Beaumont Oct. 6, 2022, pet. granted, judgm’t vacated w.r.m.) (mem. op.). 2
2 See also Rockman v. Ob Hospitalist Grp., Inc., No.
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In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-23-00320-CV __________________
GULF COAST PROS, LLC, Appellant
V.
MONICA SWEENEY, MICHAEL SWEENEY, AND KATIE SWEENEY-SCOTT, Appellees
__________________________________________________________________
On Appeal from the County Court at Law No. 6 Montgomery County, Texas Trial Cause No. 23-04-05901-CV __________________________________________________________________
MEMORANDUM OPINION
In this accelerated appeal, Appellant/Cross-Appellee Gulf Coast Pros, LLC
(“GCP” or “Plaintiff”) appeals the trial court’s final judgment granting
Appellees/Cross-Appellants Monica Sweeney (“Monica”), Michael Sweeney
(“Michael”), and Katie Sweeney-Scott’s (“Katie”) (collectively “the Sweeneys” or
“Defendants”) Texas Citizen’s Participation Act (“TCPA”) motion to dismiss a
claim for breaching the non-disparagement and confidentiality terms of the parties’
1 settlement agreement, and the Sweeneys cross appeal from the trial court’s denial of
their request for attorney’s fees. See Tex. Civ. Prac. & Rem. Code Ann. § 27.008(b)
(an appeal from order on a TCPA motion to dismiss is an accelerated appeal); see
also Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011 (the TCPA).1 As
explained below, we affirm the trial court’s judgment.
The TCPA Motions to Dismiss Under the TCPA
The TCPA provides that a party may file a motion to dismiss a legal action if
it is “based on or is in response to a party’s exercise of the right of free speech, right
to petition, or right of association or arises from any act of that party in furtherance
of the party’s communication or conduct described by Section 27.010(b)[.]” Tex.
Civ. Prac. & Rem. Code Ann. § 27.003(a). Section 27.005 of the TCPA provides as
follows, in relevant part:
(b) Except as provided by Subsection (c), on the motion of a party under Section 27.003, a court shall dismiss a legal action against the moving party if the moving party demonstrates that the legal action is based on or is in response to: (1) the party’s exercise of: (A) the right of free speech; (B) the right to petition; or (C) the right of association; or (2) the act of a party described by Section 27.010(b).
1 The legislature enacted the TCPA “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.” Tex. Civ. Prac. & Rem. Code Ann. § 27.002. 2 (c) The court may not dismiss a legal action under this section if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question. (d) Notwithstanding the provisions of Subsection (c), the court shall dismiss a legal action against the moving party if the moving party establishes an affirmative defense or other grounds on which the moving party is entitled to judgment as a matter of law.
Id. at § 27.005(b)-(d).
Standard of Review
We review a trial court’s ruling on a TCPA motion to dismiss under a de novo
standard of review. Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45-
46 (Tex. 2021). Our de novo review includes a review to determine whether the
parties met their burdens of proof under the TCPA and whether a nonmovant has
presented clear and specific evidence establishing a prima facie case for each
essential element of the challenged claims. See id. We consider the pleadings and
affidavits stating the allegations upon which the claim or defense is based in the light
most favorable to the nonmovant. See Tex. Civ. Prac. & Rem. Code Ann. §
27.006(a); In re Lipsky, 460 S.W.3d 579, 586-87 (Tex. 2015); Push Start Indus.,
LLC v. Hous. Gulf Energy Corp., No. 09-19-00290-CV, 2020 Tex. App. LEXIS
9337, at *6 (Tex. App.—Beaumont Nov. 30, 2020, no pet.) (mem. op.) (citations
omitted). We consider evidence a court could consider under Rule 166a of the Texas
Rules of Civil Procedure. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).
3 Three-Step Process Under the TCPA
The TCPA provides a three-step process courts must follow in deciding
whether to dismiss a “legal action” to which the TCPA applies. Montelongo v.
Abrea, 622 S.W.3d 290, 295-96 (Tex. 2021). First, the defendant who has moved to
dismiss must demonstrate that the plaintiff’s claim “is based on or is in response to
[the movant]’s exercise of the right of free speech, right to petition, or right of
association or arises from any act of [the movant] in the furtherance of [the
movant]’s communication or conduct described by Section 27.010(b).” Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(b) (internal formatting omitted); see also Tex.
Civ. Prac. & Rem. Code Ann. § 27.010(b).
Next, if the defendant meets its burden, the burden shifts to the plaintiff to
“‘establish[] by clear and specific evidence a prima facie case for each essential
element of the claim in question.’” ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 899 (Tex. 2017) (quoting Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c)); see also Montelongo, 622 S.W.3d at 296. Finally, if the plaintiff makes
this showing, the court will dismiss the action if the defendant “establishes an
affirmative defense or other grounds on which the moving party is entitled to
judgment as a matter of law.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d);
Montelongo, 622 S.W.3d at 296. Prima facie means “at first sight,” and under the
TCPA, a prima facie case is the “minimum quantum of evidence necessary to
4 support a rational inference that the allegation of fact is true.” USA Lending Grp.,
Inc. v. Winstead PC, 669 S.W.3d 195, 200 (Tex. 2023) (citing S&S Emergency
Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018); Prima facie,
Garner’s Dictionary of Legal Usage (3d ed. 2011)). Evidence is “clear and specific”
if it provides enough detail to show the factual basis for the claim. Id. (citing In re
Lipsky, 460 S.W.3d at 590-91). Such evidence need not be conclusive,
uncontroverted, or found credible. Id. (citing In re Lipsky, 460 S.W.3d at 590).
On the third step of the analysis, we examine whether the defendants have
established that they are entitled to judgment as a matter of law on their affirmative
defenses. See Rogers v. Bryan, No. 09-21-00338-CV, 2023 Tex. App. LEXIS 505,
at *49 (Tex. App.—Beaumont Jan. 26, 2023, no pet.) (mem. op.). When determining
whether a party who seeks to dismiss the plaintiff’s case under the TCPA has met
its burden on this third step, we apply a standard of review essentially equivalent to
a motion for summary judgment on an affirmative defense. Id.; H-E-B, L.P. v.
Maverick Int’l, Ltd., No. 09-21-00311-CV, 2022 Tex App. LEXIS 7428, at *10 (Tex.
App.—Beaumont Oct. 6, 2022, pet. granted, judgm’t vacated w.r.m.) (mem. op.). 2
2 See also Rockman v. Ob Hospitalist Grp., Inc., No. 01-21-00383-CV, 2023 Tex. App. LEXIS 3055, at *38 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet.) (mem. op.) (citing Zidan v. Zidan, No. 05-20-00786-CV, 2022 Tex. App. LEXIS 8744, at *11 (Tex. App.—Dallas Nov. 30, 2022, no pet.) (mem. op.); Rosales v. Comm’n for Lawyer Discipline, No. 03-18-00725-CV, 2020 Tex. App. LEXIS 3350, at **9-10 (Tex. App.—Austin Apr. 22, 2020, no pet.) (mem. op.); Batra v. Covenant Health Sys., 562 S.W.3d 696, 708 (Tex. App.—Amarillo 2018, pet. 5 Background
GCP’s Claims against the Sweeneys
In April of 2023, GCP filed an Original Petition against the Sweeneys
asserting causes of action for breach of contract against Monica and Michael,
tortious interference with existing contract against Katie, civil conspiracy against all
Defendants, a claim for declaratory judgment under the Uniform Declaratory
Judgment Act, and attorney’s fees. In August of 2023, after the Sweeneys had filed
their TCPA Motion to Dismiss and after the claims against Katie were non-suited
without prejudice,3 GCP filed its First Amended Petition (hereinafter “the petition”)
against Monica and Michael for breach of contract, declaratory judgment, and
attorney’s fees.4 According to the petition, Monica and Michael breached the
Confidential Settlement and Mutual Release Agreement (hereinafter “the
Agreement”) that they entered into with GCP as a result of a dispute over a
construction agreement (hereinafter “the underlying dispute”). 5 The petition
denied)); Graves v. Evangelista-Ysasaga, No. 14-22-00137-CV, 2023 Tex. App. LEXIS 399, at **14-16 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023, pet. denied) (mem. op.) (defendant failed to prove they were entitled to judgment as a matter of law where a fact issue existed on defendant’s affirmative defense). 3 GCP filed a motion to nonsuit its claims against Katie without prejudice, and the trial court signed an order granting the motion. 4 GCP’s First Amended Petition was the live pleading at the time the trial court granted the Sweeneys’ TCPA motion to dismiss, and we refer to it as “the petition” herein. 5 According to the Defendants, Michael and Monica hired GCP to perform remodeling work on their home, they were dissatisfied with results of GCP’s goods 6 referenced the following exhibits previously filed with and attached to the Original
Petition, and incorporated them into the new petition:
Exhibit A Confidential Settlement and Mutual Release Agreement;
Exhibit B Monica Sweeney and Katie Sweeney-Scott’s May 16, 2023 comments on social media concerning Plaintiff;
Exhibit C Monica Sweeney and Katie Sweeney-Scott’s May 29, 2023 comments on social media concerning Plaintiff;
Exhibit D Monica Sweeney and Katie Sweeney-Scott’s June 10, 2023 comments on social media concerning Plaintiff, and;
Exhibit E Affidavit of Lacy Gigout and text message attached thereto.
The petition alleged that Michael and Monica each signed the Agreement and
agreed to be jointly and severally bound by the Agreement. According to GCP, as
part of the resolution of the underlying dispute, the parties mutually agreed in the
Agreement to a “mutual walk-away; mutual release; [] and confidentiality and non-
disparagement.” 6 Paragraph 4 of the Agreement states:
4. CONFIDENTIALITY AND NON-DISPARAGEMENT: IN FURTHER CONSIDERATION OF THE AGREEMENTS, PROMISES AND MUTUAL RELEASES SET FORTH HEREIN, THE PARTIES AGREE TO KEEP THE TERMS AND CONDITIONS OF THIS AGREEMENT CONFIDENTIAL AND NOT TO DISCLOSE THE TERMS AND CONDITIONS OF THIS
and services, and a dispute arose relating to payment for the work. The dispute resulted in litigation which was resolved at mediation when GCP and Michael and Monica entered into the Agreement disposing of and releasing all claims by and between the parties. 6 Internal formatting omitted. 7 AGREEMENT OR COPIES OF THIS AGREEMENT TO ANY THIRD-PARTY WHATSOEVER, UNLESS FIRST RECEIVING THE WRITTEN PERMISSION OF THE OTHER PARTY TO THIS AGREEMENT OR BEING FORCED TO DO SO BY COURT ORDER OR AS REQUIRED BY APPLICABLE LAW OR FOR ENFORCEMENT PURPOSES. THIS PROVISION SHALL NOT BE INTERPRETED TO PROHIBIT THE PARTIES FROM DISCLOSING THE TERMS AND CONDITIONS OF THIS AGREEMENT OR PROVIDING A COPY OF THIS AGREEMENT TO THEIR ATTORNEYS, ACCOUNTANTS, OR AFFILIATED COMPANIES AS REASONABLY NECESSARY.
ADDITIONALLY, THE PARTIES SHALL NOT MAKE ANY NEGATIVE STATEMENTS OR COMMENTS, WRITTEN OR ORAL, ABOUT ONE ANOTHER, INCLUDING, WITHOUT LIMITATION [ABOUT] ONE ANOTHER’S BUSINESSES OR EMPLOYMENT, TO ANY THIRD PARTY IN ANY PUBLIC OR PRIVATE FORUM, INCLUDING, WITHOUT LIMITATION ANY ONLINE CONSUMER RATINGS SERVICE AND ALSO INCLUDING ANY SOCIAL MEDIA, WITH REGARD TO THE CIRCUMSTANCES SURROUNDING OR GIVING RISE TO THE WORK, PROPERTY, PROJECT, AND DISPUTE. THE PARTIES AGREE TO REMOVE ANY WRITTEN NEGATIVE STATEMENTS, COMMENTS OR RATINGS POSTED OR SUBMITTED TO ANY ONLINE CONSUMER RATINGS SERVICE, ANY SOCIAL MEDIA AND OTHER PUBLIC FORUMS THAT WERE WRITTEN OR POSTED PRIOR TO OR AFTER THE DATE OF THIS AGREEMENT AS THEY RELATE TO THE CIRCUMSTANCES SURROUNDING OR GIVING RISE TO THE WORK, PROPERTY, PROJECT AND DISPUTE. THE PARTIES’ FAILURE TO COMPLY WITH THIS PROVISION SHALL BE DEEMED A MATERIAL BREACH OF THIS AGREEMENT.
The petition alleges that paragraph 4 of the Agreement requires Michael and
Monica to keep the terms and conditions of the Agreement confidential; not disclose
the terms and conditions of the Agreement to any third party; not make any negative
statement or comments, written or oral, about GCP to any third party in any public 8 or private forum, including social media, regarding the underlying dispute; and
remove any written negative statements, comments or ratings posted or submitted to
any social media and other public forums that were written or posted prior to or after
the date of the Agreement as they relate to the circumstances surrounding or giving
rise to the underlying dispute. According to the petition, after the Agreement was
executed, Michael or Monica breached paragraph 4 of the Agreement as follows:
a. On May 16, 2022, Deanna Wesner, a member of a Facebook group titled Imperial Oaks Residents, posted to her community Facebook group looking for recommendations for a contractor for a bathroom remodel. Defendant Monica commented recommending another local company; however, her post painted Plaintiff in a negative light. Her comment, attached and included as Exhibit B, stated “South Texas Home Works. I strongly recommend this company. They are extremely professional and honest. Not all companies in this area are trust[]worth[y]. Be extremely careful. Get everything in writing. And I mean everything!!! Make sure you know what material cost is and labor before they start. We have [gone] through a nightmare with a local company. Now have everything fixed b[y] true professional.” b. Additionally, several of the comments on that post thread recommending Gulf Coast Pros were flagged with the “angry” emoji by Katie Sweeney-Scott, Michael Sweeney and Monica Sweeney’s daughter. c. On May 29, 2022, Defendant Monica made a post in the community Facebook group titled Imperial Oaks Residents. The post, which included a photo of a piece of cabinetry that Plaintiff installed, had the caption, “We are finally getting our kitchen fixed by professionals. {emoji} would anyone like this piece of {emoji} that our previous contractor installed?” d. When comments naturally followed asking who constructed the cabinetry, Defendant Monica Sweeney responded saying, “well legally I can’t say. Which makes me sick. Unfortunately the way
9 the legal system works, they are free to continue to do this to others.” e. Later on in the comments chain, Defendant Monica Sweeney states, “unfortunately it was part of the settlement. Trust me I wish I could say the name of the company. I could just post the pictures of their work and the report done by a licensed inspector and let his work speak for it[]self. But because that was written in the disclosure, legally I can not.” The full post and all comments are incorporated herein as Exhibit C. f. Plaintiff’s name was later mentioned in the same comment chain by an Aaron Richards, who stated “Guys a quick group look and it’s Gulf Coast pros. . . . heard bad things myself. Not sure why they are allowed to promote here, they don’t live in [Imperial Oaks].” g. Because Defendant Monica Sweeney failed to delete her previous posts in accordance with the signed settlement Agreement, Plaintiff’s name was once again made public due to Defendant Monica Sweeney’s social media posts and in connection with negative comments. h. On June 10, 2022, Defendant Monica Sweeney once again went to social media and disparaged Plaintiff’s business in the Imperial Oaks Residents Facebook group. i. Defendant Monica Sweeney made a post of her own on the group’s page complaining about the work of her prior contractor, which was Gulf Coast Pros, LLC. She also failed to delete previous Facebook posts within the group referencing Plaintiff. j. Defendant Monica Sweeney continuously made comments on the thread about the[re] being an agreement and that she couldn’t speak on the matter, yet she continued to do exactly that throughout the thread and likely through direct messages. Screenshots or exact duplicates of the original post and related comments are included herein as Exhibit D. [] Michael Sweeney and/or Monica Sweeney’s disclosure of the terms of the Agreement to her daughter, Katie Sweeney-Scott, is also a breach of the Agreement as it is a disclosure of the terms of the Agreement to a third-party, which is prohibited by the Agreement. The Facebook quotes and comments from Defendant’s daughter supports that the terms of the agreement were disclosed to the daughter. [] Thus, Michael Sweeney and/or Monica Sweeney breached Paragraph 4 of The Agreement by: 10 a. Disclosing the terms and conditions of the Agreement to a third party, i.e., their daughter; b. Making negative and disparaging remarks about Plaintiff after signing the Agreement[;] c. Failing to delete previous negative remarks from Monica Sweeney’s Facebook profile and/or the Imperial Oaks Facebook Group; and d. Referencing the agreement on a public forum.
GCP alleged that, as a result of the Sweeneys’ breach of the Agreement, GCP
sustained damages to its reputation and loss of business. GCP also sought a
declaratory judgment determining GCP’s rights under the Agreement and “declaring
and adjudicating and that Michael Sweeney and/or Monica Sweeney violated the
Agreement and that Michael Sweeney and Monica Sweeney have a duty to
indemnify Plaintiff for damages caused to Plaintiff.” GCP also asserted that the
language in paragraph 4 of the Agreement allows the parties to disclose the
Agreement in order to enforce the Agreement.
The Sweeneys’ Answer and Counterclaim
The Sweeneys filed their Answer generally denying the allegations in GCP’s
petition and asserting the defenses of res judicata, collateral estoppel, prior breach,
excuse of performance, and alleging that all statements at issue are true, not
defamatory, and are privileged and constitute protected speech under the First
Amendment. The Sweeneys also asserted a counterclaim for breach of contract,
alleging that GCP failed to perform its obligations under the Agreement by
11 disclosing the terms of the Agreement to the public by filing it as an exhibit to GCP’s
petition and by breaching the covenant not to sue.
The Sweeneys’ TCPA Motion to Dismiss
The Sweeneys filed a TCPA Motion to Dismiss, arguing that GCP’s lawsuit
should be dismissed under section 27.005 of the TCPA for the following reasons:
• GCP’s lawsuit is based on and in response to the exercise of the right to free speech because the alleged statements are communications made in connection with a matter of public concern as defined by the TCPA;
• GCP’s lawsuit is based on and in response to the act of posting a consumer review of GCP’s business, which is explicitly protected by Section 27.010(b)(2) of the TCPA; and,
• GCP cannot establish by clear and specific evidence a prima facie case for each essential element of its claims for breach of contract, civil conspiracy, tortious interference and declaratory judgment.
The Sweeneys argue that they “met their burden under Sections 27.005(b)(1)(A) and
27.005(b)(2) of the TCPA, and GCP cannot meet its burden under TCPA Section
27.005(c).”
Specifically, the Sweeneys argue in their motion that to the extent, if any, that
Monica’s or Katie’s posted comments to the Imperial Oaks Residents Facebook
Page could be construed to identify GCP, those comments constitute
“communications” under the TCPA because they were submitted in electronic form
and were made in connection with a “matter of public concern” because they related
to a company selling and performing home remodeling services within the local 12 community and constitute discussion and opinion of the quality of GCP’s services.
According to the Sweeneys, the comments at issue here are comments about the
quality of a business’s goods or services that are protected by the TCPA and fall
under section 27.010(b)(2) because they constitute “the communication . . . [or]
posting” of “consumer opinions or commentary” and “reviews or ratings of [a]
business[].”
The Sweeneys also argue in their motion that GCP cannot establish a prima
facie case for its causes of action. According to the Sweeneys, there is no clear and
specific evidence that Michael or Monica disclosed the “terms and conditions” of
the Agreement or that Michael or Monica caused any damage to GCP as a result of
the alleged disclosure of the “terms and conditions” of the Agreement. The
Sweeneys argue that Monica, Michael, and Katie all three stated in their affidavits
that neither Monica nor Michael disclosed the terms and conditions of the
Agreement to Katie and that they did not allow Katie to read the Agreement. In
support of this, the Sweeneys attached as evidence sworn affidavits of Monica,
Michael, and Katie. To the extent the breach of contract claim is directed at Katie or
her alleged conduct, the Sweeneys argue that Katie was not a party to the Agreement
and that because she was not, she was not bound by the Agreement. They also argue
that there is no clear and specific evidence of civil conspiracy or evidence that Katie
13 tortiously interfered with an existing contract.7 As for GCP’s declaratory judgment
claim, the Sweeneys argue in their motion to dismiss that the declaratory judgment
claim is merely a recasting of the breach of contract claim and, for the reasons
outlined above, there is no clear and specific evidence to support GCP’s allegations.
The Sweeneys also alleged in their motion that section 27.009(a)(1) of the Texas
Civil Practice and Remedies Code requires the trial court to award them their costs
and attorney’s fees if the motion to dismiss is granted, and the Sweeneys assert that
they “will submit a fee application showing their costs and attorneys’ fees within
seven (7) days of an Order dismissing GCP’s claims in this case.”
GCP’s Response to the TCPA Motion to Dismiss
GCP filed a Response to the TCPA Motion to Dismiss and incorporated by
reference the exhibits attached to its Original Petition. GCP argues in its Response
that its legal action against the Sweeneys is exempt from the TCPA under section
27.010(a)(5)(B). According to GCP’s Response, the Sweeneys have failed to
demonstrate that GCP’s lawsuit is based on or in response to the Sweeneys’ exercise
of the right of association, right of free speech, or right to petition, and that the
communications at issue were not free speech but were instead “private
communications between private parties that affected their private, pecuniary
7 Because GCP’s nonsuited its claims against Katie after the Sweeneys filed their TCPA Motion to Dismiss, the motion survives the nonsuit. See Walker v. Hartman, 516 S.W.3d 71, 80 (Tex. App.—Beaumont 2017, pet. denied). 14 interests.” GCP also argues that (1) it has established by clear and specific evidence
a prima facie case for each essential element of its breach of contract claim because
the petition sets forth facts providing clear and specific evidence of breach of
contract, and (2) GCP has established by clear and specific evidence a prima facie
case for each essential element of its declaratory judgment claim because its petition
included the following statement:
There is a genuine and bona fide dispute and an actual controversy and disagreement between Plaintiff and Michael Sweeney and Monica Sweeney regarding whether Michael Sweeney and/or Monica Sweeney violated the terms of the Agreement and whether Michael Sweeney and Monica Sweeney have a duty to indemnify Plaintiff for the damages caused to Plaintiff.
As for clear and specific evidence of its claims for civil conspiracy and tortious
interference, GCP “refers to the facts set forth in [the] Original Petition[.]” GCP
alleges that the Sweeneys have presented no affirmative defense or other grounds on
which they are entitled to judgment as a matter of law. GCP also asserts that the
Sweeneys contractually agreed to limit their rights to make comments to third parties
about GCP, the Sweeneys’ motion to dismiss is frivolous, and GCP is entitled to
attorney’s fees.
The Sweeneys’ Reply to GCP’s Response to the TCPA Motion to Dismiss
In the Sweeneys’ Reply, they object to certain evidence attached to GCP’s
Original Petition. The Sweeneys also argue that GCP’s suit is not exempt from the
TCPA because here there is no “independent contractor” relationship as 15 contemplated by section 27.0101(a)(5)(B); any alleged preexisting remarks that
GCP alleged the Sweeneys failed to delete were not subject to the non-
disparagement provision because they were made prior to the Agreement; all of the
statements made by Monica referenced in GCP’s petition were nothing more than
references to the existence of the Agreement and not the Agreement’s terms and
conditions; and that even if Monica and Michael had informed Katie that the
Agreement provides that they cannot make disparaging remarks about GCP, that
would not be a disparaging statement.
The Sweeneys argue in their Reply that all of the statements were consumer
opinions for which section 27.010(b)(2) provides protection by the TCPA. The
Sweeneys assert that a nonmovant must submit evidence that goes beyond its
pleadings, and because GCP failed to authenticate the evidence that was filed in the
case by filing affidavits to do so, there is no evidence in the record to support its
position.
The Sweeneys argue that Monica’s, Michael’s, and Katie’s affidavits attached
to the motion to dismiss establish their affirmative defense of prior breach and
excuse of performance by GCP, and that the basis for that affirmative defense is the
same as the Sweeneys’ counterclaim—that neither Monica or Michael ever disclosed
the terms and conditions of the Agreement to Katie or let her see the Agreement, and
that GCP breached the Agreement by disclosing all of its terms and conditions when
16 it filed the Agreement in the public record as an exhibit to its Original Petition. The
Sweeneys assert that they provided statutes, caselaw, and evidence to support their
motion to dismiss the contract claim, and the fact that the trial court is required to
grant the TCPA motion to dismiss at the very least as it relates to the dismissal of
Katie and the nonsuit of the civil conspiracy and tortious interference claims 8
supports their position that the motion to dismiss is not frivolous. The Sweeneys
attached to their Reply an Attorney’s Fees Affidavit by defense counsel stating the
following, in relevant part:
[] The fee for the services performed to date in connection with the services rendered to date, plus services to prepare and file replies to GCP’s response to motion for attorney’s fees and motion for summary judgment on the counterclaim, results in a reasonable attorney’s fee in the sum of $12,937.00 relevant to the handling of the matters relating to the defense of the legal action on behalf of Defendants. [] In addition to the above, [the] Sweeney[s] will reasonably incur necessary attorneys’ fees as follows, should GCP file a Motion for New Trial or Appeal, and for Writ of Error: a. Response to successful appeal $20,000.00 b. Making or responding to unsuccessful Application for Writ of Error $20,000.00 c. Legal Services Associated with Application for Writ of Error $20,000.00
8 In its Response, which was filed before its First Amended Petition, GCP noted that “it is filing a First Amended Petition contemporaneously herewith dismissing Katie Sweeney-Scott as a defendant and dismissing the causes of action for conspiracy and tortious interference with an existing contract.” 17 GCP’s Sur-reply to the Sweeneys’ Reply to GCP’s Response to the TCPA Motion to Dismiss
In its Sur-reply, GCP responded to the Sweeneys’ evidentiary objections,
argued that their nonsuit of Katie “does not create an automatic award of attorney’s
fees[,]” and re-urged arguments it made in its Response.
Order Granting the Sweeneys’ TCPA Motion to Dismiss
On September 18, 2023, the trial court signed an Order Granting Defendants’
Motion to Dismiss Under Texas Citizens Participation Act. As to Monica and
Michael, the trial court dismissed all causes of action alleged in GCP’s petition with
prejudice and entered a take-nothing judgment in favor of Monica and Michael. As
to the claims against Katie, the Order noted that although the trial court granted
GCP’s Motion for Nonsuit without Prejudice, the trial court found that Katie “was
still entitled to be heard on the anti-SLAPP motion because the motion sought
dismissal of all the claims with prejudice against all Defendants[.]” 9 The Order
granting the Sweeneys’ TCPA motion to dismiss dismissed GCP’s claims against
Katie with prejudice, “effectively setting aside the Order for Nonsuit signed by the
court on August 11, 2023,” and the trial court entered a take-nothing judgment in
favor of Katie. The trial court denied the Sweeneys’ request for attorney’s fees and
9 The TCPA “is sometimes referred to as an anti-SLAPP law—the acronym standing for strategic lawsuit against public participation.” KBMT Operating Co., LLC v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex. 2016). 18 concluded that the Sweeneys failed to prove reasonableness and necessity of
attorney’s fees incurred in defending the case because the affidavit “provided
generalities about hours spent and nature of attorney’s work without evidence of
time spent on specific tasks, and therefore, the affidavit was insufficient to support
attorney-fees award.”
The Sweeneys’ Motion for Reconsideration of Order Denying Attorney’s Fees
The Sweeneys filed a Motion for Reconsideration of Order Denying
Attorney’s Fees, arguing that “[a] successful movant under the TCPA is not required
to establish the amount of fees using the Lodestar Method, the Arthur Anderson
factors or even comply with Texas Civil Practice & Remedies Code § 18.001[,]” and
that “[a] successful TCPA movant is also entitled to a conditional award of appellate
attorney’s fees in connection with any order that may be appealed.” The Sweeneys
also argued that “courts may consider attorney’s fees evidence after the hearing on
a TCPA motion to dismiss, even outside of the 30-day period after which a court’s
plenary power traditionally expires[,]” that the additional evidence attached as
exhibits to the Motion for Reconsideration “is sufficient to support the mandatory
award of attorney’s fees required by the TCPA, in the amount of $15,225 as of the
date of the filing of this motion[,]” and that the fees were both necessary and
reasonable.
19 GCP’s Notice of Appeal and the Sweeneys’ Notice of Cross-Appeal
On October 6, 2023, GCP filed its Notice of Appeal of the Order granting the
Sweeneys’ TCPA Motion to Dismiss. That same day, the Sweeneys filed their Cross-
Notice of Appeal stating that their Motion for Reconsideration of Order Denying
Attorney’s Fees was set for submission for October 13, 2023, after the deadline for
filing an accelerated appeal under the TCPA has expired, and that they were filing
their Cross-Notice of Appeal out of abundance of caution despite their belief that the
trial court retains jurisdiction to rule on the Motion for Reconsideration. After the
trial court denied the Sweeney’s Motion for Reconsideration of Order Denying
Attorney’s Fees on October 19, 2023, the Sweeneys filed an amended notice of cross
appeal with this Court.
Issues on Appeal
In issue one, GCP argues that the trial court erred by granting the Sweeneys’
TCPA Motion to Dismiss because the Sweeneys failed to establish by a
preponderance of the evidence that GCP’s claims fell within the TCPA’s protection.
In issue two, GCP argues the trial court erred by granting the Sweeneys’ TCPA
Motion to Dismiss because GCP’s claims are exempt. In issue three, GCP argues it
provided prima facie evidence of each element of its causes of action, and the
Sweeneys did not establish a meritorious defense as a matter of law. On cross appeal,
the Sweeneys argue that the trial court erred in denying their motion for attorney’s
20 fees and motion for reconsideration of the denial of its first request for attorney’s
fees.
Did Appellees Demonstrate that the TCPA Applies?
In its first appellate issue, GCP argues that the trial court erred in granting the
Sweeneys’ TCPA Motion to Dismiss because the Sweeneys failed to establish by a
preponderance of the evidence that their claims fell within the TCPA’s protection.
GCP argues that, by virtue of the Agreement’s confidentiality and non-
disparagement clauses, the Sweeneys contracted away any right they had to speak
freely regarding GCP. GCP also argues that the Sweeneys alleged in their TCPA
Motion to Dismiss that GCP’s lawsuit implicated only the Sweeneys’ right to free
speech and that the Sweeneys’ comments were not made in relation to a matter of
public concern. GCP further argues that the Sweeneys’ cannot assert that section
27.010(b)(2) protects their statements because that subsection only protects
consumer statements in the situations enumerated in section 27.010(a)(2), (7), and
(12).
We first address GCP’s argument that in the Agreement the Sweeneys
contracted away any right they had to speak freely about GCP. In support of its
argument, GCP cites to Cohen v. Cowles Media Co., 501 U.S. 663, 671 (1991), for
the proposition that although the First Amendment protects an individual’s right to
free speech, that right can be contracted away, which GCP contends is what the
21 Sweeneys did when they entered into the Settlement Agreement. We note that Cohen
did not involve anti-SLAPP claims and GCP has cited no authority to support that
whether a movant contracted away a constitutional right must be considered under
the first step of the TCPA analysis, and we agree with our sister courts that have
determined that whether a movant contractually limited his or her constitutional
rights is not a consideration under the first step of the TCPA analysis. See, e.g., HDG,
Ltd. v. Blaschke, No. 14-18-01017-CV, 2020 Tex. App. LEXIS 2989, at *10 (Tex.
App.—Houston [14th Dist.] Apr. 9, 2020, no pet.) (mem. op.); Mesquite Servs., LLC
v. Standard E&S, LLC, 610 S.W.3d 548, 559 (Tex. App.—Amarillo 2020, pet.
denied); Morgan v. Clements Fluids S. Tex., Ltd., 589 S.W.3d 177, 185 (Tex. App.—
Tyler 2018, no pet.); Elliott v. S&S Emergency Training Sols., Inc., 559 S.W.3d 568,
574 (Tex. App.—Dallas 2017), rev’d on other grounds, 564 S.W.3d 843, 850 (Tex.
2018).
The Sweeneys’ TCPA Motion to Dismiss asserted protection by the TCPA on
two grounds: (1) that “GCP’s lawsuit is based on and in response to the exercise of
the right to free speech because the alleged statements are communications made in
connection with a matter of public concern as defined by the TCPA;” and (2) “GCP’s
lawsuit is based on and in response to the act of posting a consumer review of GCP’s
business, which is explicitly protected by Section 27.010(b)(2) of the TCPA[.]” We
also note that the most recent version of section 27.003(b), which applies here, no
22 longer includes the “preponderance of the evidence” burden of proof for the first
step of the TCPA analysis but instead requires the court to grant a TCPA motion to
dismiss “if the moving party demonstrates that the legal action is based on or is in
response to [the movant]’s exercise of the right of free speech, right to petition, or
right of association or arises from any act of [the movant] in the furtherance of [the
movant]’s communication or conduct described by Section 27.010(b).” Tex. Civ.
Prac. & Rem. Code Ann. § 27.005(b) (internal formatting omitted).
Section 27.010(a) describes actions exempt from the TCPA, including:
(2) a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer; .... (7) a legal action brought under Chapter 17, Business & Commerce Code, other than an action governed by Section 17.49(a) of that chapter; .... (12) a legal action based on a common law fraud claim[.]
Id. § 27.010(a).
That said, subsection (b)(2) of section 27.010 provides the following, in
relevant part:
(b) Notwithstanding Subsections (a)(2), (7), and (12), this chapter applies to: .... (2) a legal action against a person related to the communication, gathering, receiving, posting, or processing of consumer 23 opinions or commentary, evaluations of consumer complaints, or reviews or ratings of businesses.
Id. § 27.010(b)(2).
GCP argues that section 27.010(b)(2) does not apply here, and that the TCPA
simply does not apply to this case because this case does not fit within any of the
situations enumerated in subsections (a)(2), (7), and (12) of section 27.010. We
review questions of statutory construction de novo. In re Lee, 411 S.W.3d 445, 450-
51 (Tex. 2013). Our fundamental objective in interpreting a statute is “‘to determine
and give effect to the Legislature’s intent.’” Id. at 451 (quoting Am. Zurich Ins. Co.
v. Samudio, 370 S.W.3d 363, 368 (Tex. 2012)).
The word “notwithstanding” is not expressly defined in the TCPA. However,
in its common usage, “notwithstanding” is defined as “despite” or “in spite of.”
Black’s Law Dictionary 1231 (10th ed. 2014); see Tier 1 Res. Partners v. Del. Basin
Res. LLC, 633 S.W.3d 730, 740 (Tex. App.—El Paso 2021, pet. dism’d); In re
Miller, 133 S.W.3d 816, 818 (Tex. App.—Beaumont 2004, orig. proceeding); State
v. Pub. Util. Comm’n, 110 S.W.3d 580, 586 (Tex. App.—Austin 2003, no pet.). The
use of the word “notwithstanding” indicates a legislative intention that the provision
using the term should control over other provisions. In re Lee, 411 S.W.3d at 454
(Texas Family Code section 153.0071(e) mandates entry of judgment
“notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law[]”
and, therefore, “[t]he use of the word ‘notwithstanding’ indicates that the Legislature 24 intended section 153.0071 to be controlling[]”); Molinet v. Kimbrell, 356 S.W.3d
407, 413-14 (Tex. 2011) (a “notwithstanding any other law” provision evidenced
clear legislative intent to resolve any interpretation conflicts in favor of the statute
containing the provision).
We construe section 27.010(b)(2) to mean that despite the exemptions
outlined in (a)(2), (7), and (12), the TCPA applies to any legal action against a person
when that legal action is related to the communication, gathering, receiving, posting,
or processing of consumer opinions or commentary, evaluations of consumer
complaints, or reviews or ratings of businesses in all situations unless another
exemption enumerated in section 27.010(a) other than those in subsections (a)(2),
(7), and (12) applies. This interpretation is supported by cases from this Court and
our sister courts that have concluded the TCPA applied under section 27.010(b)(2)
without reference to whether the situations in section 27.010(a)(2), (7), and (12)
applied or that the non-movant alleged that any of those exemptions applied. See
Pate v. Haven at Thorpe Lane, LLC, 681 S.W.3d 476, 489 (Tex. App.—Austin 2023,
pet. filed) (citing to sections 27.005(b)(2) and 27.010(b)(2) and concluding that the
TCPA movants demonstrated that the TCPA non-movant’s legal action was “based
on or in response to” the TCPA movants’ “communication, gathering, receiving,
posting, or processing of consumer opinions or commentary, evaluations of
consumer complaints, or reviews or ratings of businesses[]”); Gage v. Hah, No. 09-
25 22-00417-CV, 2023 Tex. App. LEXIS 6039, at **16-17 (Tex. App—Beaumont
Aug. 10, 2023, no pet.) (mem. op.) (citing 27.010(b)(2) and concluding that the
TCPA applies to the TCPA nonmovant’s legal action against the TCPA movant as
it was related to the “posting . . . of consumer opinions or commentary[]”); Melton
v. Hah, No. 09-22-00418-CV, 2023 Tex. App. LEXIS 6040, at **18-19 (Tex. App—
Beaumont Aug. 10, 2023, no pet.) (mem. op.) (same); Robinson v. Hah, No. 09-22-
00414-CV, 2023 Tex. App. LEXIS 6043, at **18-19 (Tex. App—Beaumont Aug.
10, 2023, no pet.) (mem. op.) (same); Chesson v. Hah, No. 09-22-00416-CV, 2023
Tex. App. LEXIS 6053, at **18-19 (Tex. App—Beaumont Aug. 10, 2023, no pet.)
(mem. op.) (same); Maggret v. Ramsey’s Rods & Restoration, No. 02-20-00395-CV,
2021 Tex. App. LEXIS 4361, at **5-6 (Tex. App.—Fort Worth June 3, 2021, no
pet.) (mem. op) (citing to section 27.010(b)(2) for the proposition that “The [TCPA
movants] will have established their initial burden [under the TCPA] if they show
that [the non-movant]’s suit is based on an act described in Section 27.010(b), which
includes communicating or posting consumer opinions or ratings and reviews of
businesses[,]” and also concluding that “[i]n each of these statements [made by the
TCPA movant], a consumer critically evaluated her experience with a business and
assessed the faults in its services [and] [t]hese statements represent acts—posting
consumer opinions or reviews of a business—that are protected by Section
27.010(b)[]”). If the legislature intended for section 27.010(b)(2) to only protect
26 consumers in the situations enumerated in subsections (a)(2), (7), and (12) of section
27.010, it would have included that limiting language. Instead, the legislature
included the language in a separate subsection enumerating instances to which “this
chapter applies[.]” We conclude that the TCPA applies here because GCP’s lawsuit
against the Sweeneys is “a legal action . . . related to the . . . posting [] of consumer
opinions or commentary, . . . or reviews or ratings of businesses.” See Tex. Civ. Prac.
& Rem. Code § 27.010(b)(2). We overrule issue one.
Are Appellant’s Claims Exempt from the TCPA?
In its second issue, GCP argues that the trial court erred in granting the
Sweeneys’ TCPA Motion to Dismiss because GCP’s claims are exempt from the
TCPA under section 27.010(a)(5), and that the Sweeneys incorrectly argued that
section 27.010(b)(2) applies. We have already determined that section 27.010(b)(2)
applies, so we turn to GCP’s contention that it is exempt from the TCPA under
section 27.010(a)(5).
Section 27.010(a)(5) exempts from the TCPA “a legal action arising from an
officer-director, employee-employer, or independent contractor relationship that:
(A) seeks recovery for misappropriation of trade secrets or corporate opportunities;
or (B) seeks to enforce a non-disparagement agreement or a covenant not to
compete[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.010(a)(5). GCP argues under
section 27.010(a)(5), “[s]uits to enforce non-disparagement clauses arising from
27 independent contractor relationships are exempt from the TCPA.” According to
GCP, this exemption should apply here because (1) the facts that the Agreement
defines GCP as “Contractor” and that GCP was contracted by Michael and Monica
to perform construction on their home creates an independent contractor
relationship, and (2) the dispute plainly arises from the parties’ independent
contractor relationship. The Sweeneys argue that the exemption in section
27.010(a)(5) does not apply because the intent of the statute is not to apply in the
context of a home remodeling contractor rendering services to its customer.
GCP cites H-E-B, L.P. v. Maverick Int’l, Ltd., No. 09-21-00311-CV, 2022
Tex. App. LEXIS 7428 (Tex. App.—Beaumont Oct. 6, 2022, pet. granted, judgm’t
vacated w.r.m.) (mem. op.), and Baylor Scott & White v. Project Rose MSO, LLC,
633 S.W.3d 263 (Tex. App.—Tyler 2021, pet. denied). H-E-B, L.P. involved an
exemption under section 27.010(a)(2) and not the exemption under section
27.010(a)(5). 2022 Tex. App. LEXIS 7428, at **11-21. In Baylor Scott & White, the
Tyler Court of Appeals determined that the Appellee’s unfair competition, common
law misappropriation, and misappropriation of trade secret causes of action against
Appellant were within the exemption in section 27.010(a)(5). 633 S.W.3d at 288. In
that case, the parties’ contractual agreement expressly stated that Appellee was an
independent contractor and there was no employer-employee relationship,
28 partnership, or joint venture type of relationship. Id. at 285-86. Neither of these cases
involved circumstances or facts similar to the facts in this case.
“As with any statute, courts must apply the TCPA ‘as written’ and ‘refrain
from rewriting text that lawmakers chose.’” Creative Oil & Gas, LLC v. Lona Hills
Ranch, LLC, 591 S.W.3d 127, 133 (Tex. 2019) (quoting Entergy Gulf States, Inc. v.
Summers, 282 S.W.3d 433, 443 (Tex. 2009)). “This means enforcing ‘the plain
meaning of the text unless a different meaning is supplied by statutory definition, is
apparent from the context, or the plain meaning would lead to an absurd or
nonsensical result.’” Id. (quoting Beeman v. Livingston, 468 S.W.3d 534, 538 (Tex.
2015)). “The TCPA ‘assigns detailed definitions to many of the terms it employs,
and we must adhere to statutory definitions.’” Id. (quoting Adams v. Starside Custom
Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018)). “This ‘text-based approach to
statutory construction requires us to study the language of the specific provision at
issue, within the context of the statute as a whole, endeavoring to give effect to every
word, clause, and sentence.’” Id. (quoting Ritchie v. Rupe, 443 S.W.3d 856, 867
(Tex. 2014)).
We agree with the Sweeneys that the exemption outlined in section
27.010(a)(5) is not applicable here. Section 27.010(a)(5)(B) provides an exemption
for an “independent contractor” “seek[ing] to enforce a non-disparagement
agreement.” Tex. Civ. Prac. & Rem. Code Ann. § 27.010(a)(5)(B). By its plain
29 meaning, the exemption is meant to protect an independent contractor and there is
no indication from the language used by the legislature that it applies where a
contractor provides construction services to a homeowner, much less where that
same contractor then later enters into a settlement agreement with the homeowner
with a non-disparagement provision. Accordingly, we conclude that the trial court
did not err in rejecting GCP’s argument that its claims are exempt from the TCPA
under section 27.010(a)(5)(B). Accordingly, we overrule issue two.
Did Appellant Provide Prima Facie Evidence of Each Element of Its Claims and Did the Sweeneys Show a Meritorious Defense?
In issue three, GCP argues that it “provided prima facie evidence of each
element of its causes of action,” and the Sweeneys did not establish a meritorious
defense as a matter of law. Having concluded that the TCPA applies to GCP’s legal
action against the Sweeneys, we must decide whether GCP met its burden to
establish a prima facie case for each essential element of its causes of action by clear
and specific evidence. See In re Lipsky, 460 S.W.3d at 587; see also Tex. Civ. Prac.
& Rem. Code Ann. § 27.005(c). The TCPA’s undefined terms “clear” and “specific”
have been interpreted according to their plain meaning as, for the former,
“‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the latter, “‘explicit’ or
‘relating to a particular named thing.’” In re Lipsky, 460 S.W.3d at 590 (quoting
KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 689 (Tex. App.—Houston [1st
Dist.] 2013, pet. denied)). 30 In its opening brief on appeal, GCP failed to discuss the elements of its
declaratory judgment claim or present any prima facie evidence as to those elements.
Although GCP argued in its Response to the TCPA Motion to Dismiss that it
provided prima facie evidence of each element of its declaratory judgment claim,
and GCP reiterated this argument in its reply brief on appeal, GCP did not raise the
argument in its opening brief on appeal. Accordingly, GCP waived this argument on
appeal. See Tex. R. App. P. 38.1(f), (i) (appellant’s brief “must state concisely all
issues or points presented for review” and “must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record[]”); Marshall v. Marshall, Nos. 14-18-00094-CV & 14-18-00095-CV,
2021 Tex. App. LEXIS 423, at *19 n.5 (Tex. App.—Houston [14th Dist.] Jan. 21,
2021, pet. denied) (mem. op.) (in TCPA case, appellant waived argument that was
presented in motion to dismiss and reiterated in reply brief on appeal but was not
raised in opening brief on appeal) (citing Zamarron v. Shinko Wire Co., 125 S.W.3d
132, 139 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)).
GCP argues that it met its burden to provide prima facie evidence of the
elements of its breach of contract claim. The essential elements of breach of contract
cause of action are: “(1) the existence of a valid contract; (2) the plaintiff performed
or tendered performance as the contract required; (3) the defendant breached the
contract by failing to perform or tender performance as the contract required; and
31 (4) the plaintiff sustained damages as a result of the breach.” USAA Tex. Lloyds Co.
v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018) (citations omitted). In its First
Amended Petition, GCP pleaded that “[a]s a result of the breach of the Agreement,
Plaintiff has sustained damages to its reputation and loss of business in an amount
to be proven at trial.” On appeal, however, GCP does not argue that it sustained
damages to its reputation and loss of business as a result of the alleged breach of the
Agreement and, therefore, it has waived that argument. See Tex. R. App. P. 38.1(f),
(i). Even if it had not waived the argument, GCP’s allegation of damages is
conclusory and lacks any “clear and specific evidence” of particularized harm. See
Gage, 2023 Tex. App. LEXIS 6039, at **28-29 (citing In re Lipsky, 460 S.W.3d at
592-93) (explaining that general averment of economic losses failed to satisfy
TCPA’s minimum requirements); Gensetix, Inc. v. Baylor Coll. of Med., 616 S.W.3d
630, 647 (Tex. App.—Houston [14th Dist.] 2020, pet. dism’d) (same)).
On appeal, GCP argues that because the Sweeneys’ breached the settlement
agreement, GCP sustained damages of $16,850, which GCP claims represents the
“benefit of the bargain” of the settlement because “by breaching the Agreement and
making disparaging comments, [the Sweeneys] deprived [GCP] of the benefit of the
bargain, which was the release of its underlying claim for $16,850.” Yet the
Agreement does not include a liquidated damages provision in which the parties
agreed to a damages amount that would apply should a party breach the terms of the
32 confidentiality agreement. Thus, under the Agreement and in the event of a breach,
GCP was required to present evidence to establish how much business it lost based
on any alleged breach. Importantly, when GCP was in the trial court, it did not plead
that its revenues or profits were damaged by the statements it alleged the Sweeneys
made about it; instead, GCP treated the $16,850 as a liquidated damages provision
in the release when, as a matter of law, it is not. 10
On appeal, the Sweeneys argue that GCP did not argue that it was entitled to
recover $16,850 in damages as a benefit of the bargain of its settlement and for that
reason the argument was waived. In response, GCP argues that that it did not waive
the argument because in its Reply to the Defendants’ Response to Plaintiff’s Motion
to Consolidate it pleaded: “Sweeney artfully avoids Plaintiff’s claim that Sweeney
breached the Settlement Agreement and Mutual Release, or that the damages under
that breached the Settlement Agreement are Sixteen Thousand Eight Hundred Fifty
and 00/100ths Dollars ($16,850.00), the disputed amount released by Plaintiff under
the Settlement Agreement[.]”
In the trial court, the Sweeneys’ TCPA Motion to Dismiss specifically
asserted, among other things, that GCP failed to provide prima facie evidence that it
had been damaged based on GCP’s claim for breach of contract. We note that in
10 Phillips v. Phillips, 820 S.W.2d 785, 788 (Tex. 1991) (“Whether a contractual provision is an enforceable liquidated damages provision or an unenforceable penalty is a question of law for the court to decide.”). 33 GCP’s Response to the Sweeneys’ TCPA Motion to Dismiss and Sur-reply to the
Sweeneys’ Reply to GCP’s Response, GCP did not point to any evidence of its
damages, and as stated above, the parties didn’t include a liquidated damages
provision in their settlement agreement that was to apply should one of the parties
breach the terms of the confidentiality agreement that they reached in settling the
dispute. Because the settlement agreement doesn’t include a liquidated damages
provision and GCP presented no other evidence that it was damaged except for the
Agreement, we conclude that GCP failed to meet its burden to provide clear and
specific evidence of damages as to its breach of contract claim. See Tex. Civ. Prac.
& Rem. Code Ann. § 27.005(c).
As to its tortious interference claim against Katie that it nonsuited, GCP
argues on appeal that “the Petition and the attachments thereto make it apparent that
. . . Katie . . . knew about the agreement, and she was posting negative comments as
a surrogate for her parents[,] . . [and that she] admitted her wrongdoing and
apologized to Appellant.” The elements of a claim for tortious interference with an
existing contract are (1) an existing contract subject to interference, (2) a willful and
intentional act of interference with the contract, (3) that proximately caused the
plaintiff’s injury, and (4) caused actual damages or loss. Prudential Ins. Co. of Am.
v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). In its Original Petition, GCP
asserted that, as a result of Katie’s tortious interference, GCP “has sustained
34 damages in an amount to be proven at trial.” GCP offered no clear and specific
evidence as to any actual damages or losses sustained by GCP as a result of Katie’s
alleged interference with an existing contract.
GCP did not meet its burden to produce clear and specific evidence sufficient
to establish a prima facie case for its breach of contract and tortious interference
claims, so the burden did not shift back to the Sweeneys to establish their affirmative
defenses. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c), (d); Montelongo, 622
S.W.3d at 296 (discussing TCPA’s burden shifting). Accordingly, we need not
address whether the Sweeneys established a meritorious defense as a matter of law.
See Tex. R. App. P. 47.1. Issue three is overruled.
Cross-Appeal on Attorneys’ Fees
On cross-appeal, the Sweeneys argue that the trial court erred in denying their
Motion for Reconsideration of the Order Denying Attorney’s Fees. In its September
18, 2023 Order granting the Sweeneys’ TCPA Motion to Dismiss and denying their
request for attorney’s fees, the trial court concluded that the Sweeneys’ attorney’s
fees affidavit was insufficient to support an attorney’s fees award because the
Sweeneys “failed to prove reasonableness and necessity of attorney’s fees incurred
in defending against the legal action; specifically, Defendants’ affidavit provided
generalities about hours spent and nature of attorney’s work without evidence of
time spent on specific tasks[.]” The Sweeneys argue on appeal that in their Motion
35 for Reconsideration of the Order Denying Attorney’s Fees, they attached invoices to
their attorney’s fees affidavit which “rectified the deficiencies identified by the trial
court” and which provided the trial court with sufficient evidence to calculate an
award of attorney’s fees. The Sweeneys contend that the trial court still retained
plenary power to rule on the Motion for Reconsideration but denied it.
“[T]o secure an award of attorney’s fees from an opponent, the prevailing
party must prove that: (1) recovery of attorney’s fees is legally authorized, and (2)
the requested attorney’s fees are reasonable and necessary for the legal
representation, so that such an award will compensate the prevailing party generally
for its losses resulting from the litigation process.” Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, 578 S.W.3d 469, 487 (Tex. 2019). A successful motion to dismiss
under the TCPA entitles the moving party to an award of court costs, reasonable
attorney’s fees, and other expenses incurred in defending against the legal action.
Sullivan v. Abraham, 488 S.W.3d 294, 295 (Tex. 2016) (citing Tex. Civ. Prac. &
Rem. Code Ann. § 27.009(a)). The Texas Supreme Court has explained that “[a]
reasonable [attorney’s] fee is one that is not excessive or extreme, but rather
moderate or fair.” Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010). The mere
fact that a party and a lawyer contracted for or incurred a particular amount of
attorney’s fees does not conclusively prove that a fee paid by the lawyer’s client is
reasonable. Rohrmoos, 578 S.W.3d at 487-88. That said, when awarding attorney’s
36 fees, the factfinder should exclude “[c]harges for duplicative, excessive, or
inadequately documented work[.]” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762
(Tex. 2012).
The Sweeneys contend that the evidence attached to their Motion for
Reconsideration “cured the deficiencies” identified by the trial court when it denied
their request for attorney’s fees. “Statutes providing that a party . . . ‘shall be
awarded’ . . . attorney fees are not discretionary.” Bocquet v. Herring, 972 S.W.2d
19, 20 (Tex. 1998). However, a trial court does not abuse its discretion by failing to
award fees—even statutorily mandated fees—when a party does not meet its
evidentiary burden to demonstrate the reasonableness of the fees it seeks. Carter v.
Ball, No. 04-19-00194-CV, 2019 Tex. App. LEXIS 8938, at **9-10 (Tex. App.—
San Antonio Oct. 9, 2019, no pet.) (mem. op.) (citing Dilston House Condo. Ass’n
v. White, 230 S.W.3d 714, 718-19 (Tex. App.—Houston [14th Dist.] 2007, no pet.)).
A party seeking attorney’s fees bears the burden to put forth evidence regarding its
right to the award, as well as the reasonableness and necessity of the amount.
Sullivan v. Tex. Ethics Comm’n, 551 S.W.3d 848, 857 (Tex. App.—Austin 2018,
pet. denied) (citing Fawcett v. Grosu, 498 S.W.3d 650, 666 (Tex. App.—Houston
[14th Dist.] 2016, pet. denied)).
We review a trial court’s denial of a motion for reconsideration for an abuse
of discretion. MRT, Inc. v. Vounckx, 299 S.W.3d 500, 511-12 (Tex. App.—Dallas
37 2009, no pet.); Macy v. Waste Mgmt., 294 S.W.3d 638, 651 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied). A trial court abuses its discretion when it acts without
reference to any guiding rules or principles. Carpenter v. Cimarron Hydrocarbons
Corp., 98 S.W.3d 682, 687 (Tex. 2002). On this record, we cannot say the trial court
abused its discretion in denying the Sweeneys’ motion for reconsideration when it
attached new evidence to the motion that could have been provided to the trial court
before it initially ruled on the attorney’s fees issue. See, e.g., Bridgestone Lakes
Cmty. Improvement Ass’n, Inc. v. Bridgestone Lakes Dev. Co., 489 S.W.3d 118, 125
(Tex. App.—Houston [14th Dist.] 2016, pet. denied) (A party is generally not
entitled to rely on new evidence in a motion for rehearing, reconsideration, or new
trial without showing that the evidence was newly discovered and could not have
been discovered by the exercise of due diligence before the court ruled on the
motion.). We also decline the Sweeneys’ request to remand the attorney’s fees issue
to the trial court for further consideration. See Carter, 2019 Tex. App. LEXIS 8938,
at **12-13 (citing Estrello v. Elboar, 965 S.W.2d 754, 759 (Tex. App.—Fort Worth
1998, no pet.) (refusing to remand attorney’s fees issue where party entitled to
statutorily mandated award “did not show diligence in attempting to produce the
evidence in a timely fashion[]”)). Appellees’ issue on cross-appeal is overruled.
38 Conclusion
Having overruled Appellant’s issues on appeal and Appellees’ issue on cross-
appeal, we affirm the trial court’s judgment.
AFFIRMED.
LEANNE JOHNSON Justice
Submitted on April 4, 2024 Opinion Delivered June 20, 2024
Before Horton, Johnson and Wright, JJ.
Related
Cite This Page — Counsel Stack
Gulf Coast Pros, LLC v. Monica Sweeney, Michael Sweeney, and Katie Sweeney-Scott, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-coast-pros-llc-v-monica-sweeney-michael-sweeney-and-katie-texapp-2024.