In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-25-00017-CV
MICHAEL KELLEY, APPELLANT/CROSS-APPELLEE
V.
CARL SATTERLEE, DANA MARIE MARTIN, AMANDA CAPANEAR, ADRIAN LINDEEN, AND AMI LYNNE MENDOZA GLOVER, APPELLEES/CROSS-APPELLANTS
On Appeal from the 368th District Court Williamson County, Texas1 Trial Court No. 24-1614-C368, Honorable Sarah Bruchmiller, Presiding
November 20, 2025 MEMORANDUM OPINION Before QUINN, C.J., and PARKER and YARBROUGH, JJ.
Michael Kelley appeals the dismissal of his lawsuit against Carl Satterlee under
the Texas Citizens Participation Act (TCPA).2 His two issues contend that the trial court
1 This cause was originally filed in the Third Court of Appeals and was transferred to this Court by
a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. In the event of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3. 2 While Kelley’s suit named other defendants, the trial court granted Satterlee’s TCPA motion to
dismiss and severed Kelley’s claims against Satterlee from his claims against the other defendants. The present appeal addresses only Kelley’s suit against Satterlee. erred in granting Satterlee’s motion to dismiss and in awarding Satterlee attorney’s fees
and sanctions. Satterlee filed a cross-appeal seeking an award of attorney’s fees incurred
on appeal. We affirm the trial court’s dismissal order and order on attorney’s fees and
sanctions, and remand for further proceedings consistent with this opinion.3
BACKGROUND
The impetus for Kelley’s lawsuit was certain Facebook posts made on group
pages. None of the posts purport to have been made by Satterlee. Prior to filing suit,
Kelley sent the defendants a “cease and desist” letter seeking removal and retraction of
the posts. This letter did not identify any statement made by Satterlee. Satterlee
responded to this letter contending that he did not make any Facebook posts about Kelley.
Nonetheless, Kelley filed suit against the defendants, including Satterlee.
Kelley’s petition alleged that all five defendants engaged in conduct that defamed
him, tortiously interfered with a business relationship, intentionally inflicted emotional
distress, and engaged in a civil conspiracy against him. Each of these claims were
predicated on the defendants’ claimed defamatory statements. However, nothing in
Kelley’s petition identified any statements, defamatory or otherwise, made by Satterlee.
Instead, Kelley specifically alleged that Satterlee “investigated [Kelley’s] personal and
professional history,” took advantage of his wife’s employment with the Georgetown
Police Department to obtain information about Kelley and others, “posed as an employer
3 We note that the trial court ordered all claims against Satterlee dismissed with prejudice in a
dismissal order and separately issued an order granting Satterlee’s request for attorney’s fees and sanctions. Because the issues in this appeal apply to both orders, references to the trial court’s “dismissal order” will refer to these orders collectively. After reviewing the record, we conclude that the two orders actually dispose of all claims under this cause between Kelley and Satterlee. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001) (when multiple orders collectively dispose of all claims and all parties, the order determining the last claim is final). 2 of Villages of Berry Creek HOA board members and contacted those board members’
former employers and spouses for phony background checks,” and “contacted [Kelley’s]
ex-wife in order to uncover negative information about [Kelley].”
In response to Kelley’s lawsuit, Satterlee and his codefendants filed a motion to
dismiss under the TCPA. After the motion was set for a hearing, the defendants filed an
amended motion to dismiss that added the affirmative defense of truth and sought
depositions of Kelley’s ex-wives. The trial court granted the request for limited discovery.
After these depositions were taken, the defendants supplemented their amended motion
to dismiss to include the deposition testimony of Kelley’s ex-wives.
The trial court held a hearing on the motion to dismiss. The trial court granted the
motion in part and denied it in part. As to claims against Satterlee, however, the trial court
granted the motion and dismissed those claims with prejudice. In its order dismissing
Kelley’s claims against Satterlee, the trial court highlighted that Kelley’s claims asserted
that “all defendants made the communications at issue and/or conspired with all other
defendants to publish the communications at issue.” On Satterlee’s motion, the trial court
severed Kelley’s claims asserted against Satterlee. The trial court awarded Satterlee
attorney’s fees of $14,507.67 and sanctions of $1,000. From this dismissal order, Kelley
timely appeals. Satterlee cross-appeals.
STANDARD OF REVIEW AND APPLICABLE LAW
The TCPA’s purpose is “to encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time, protect the
3 rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. &
REM. CODE § 27.002.4 We are directed to construe the TCPA liberally to effectuate this
purpose fully. § 27.011(b). The statute fulfills its purpose by authorizing a motion to
dismiss early in the covered proceedings, subject to expedited interlocutory review.
McLane Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 914 (Tex.
2023). “[W]e must construe [the TCPA’s] individual words and provisions in the context
of the statute as a whole.” Youngkin v. Hines, 546 S.W.3d 675, 680–81 (Tex. 2018).
We review a ruling on a TCPA motion to dismiss utilizing a three-step, burden-
shifting process: (1) the movant seeking dismissal must demonstrate that a “legal action”
has been brought against it and that the action is “based on or is in response to” an
exercise of a protected constitutional right; (2) if the movant succeeds in making this
demonstration, the burden shifts to the party bringing the legal action to avoid dismissal
by establishing, by clear and specific evidence, a prima facie case for each essential
element of the claim in question; (3) if the nonmovant meets this burden, the burden shifts
back to the movant to justify dismissal by establishing an affirmative defense or other
ground on which it is entitled to judgment as a matter of law. Newstream Roanoke 6.125,
LLC v. Shore, No. 02-22-00506-CV, 2023 Tex. App. LEXIS 6958, at *8–9 (Tex. App.—
Fort Worth Aug. 31, 2023, no pet.) (mem. op.). If the movant fails to meet this initial
burden, the motion to dismiss fails. Id. at *9. However, “[w]hen it is clear from the
plaintiff’s pleadings that the action is covered by the Act, the defendant need show no
more.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
4 Further references to provisions of the Texas Civil Practice and Remedies Code will be by
reference to “section __” or “§ __.” 4 We review a trial court’s determination of a TCPA motion to dismiss de novo.
Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex. 2021). We consider
the pleadings, evidence a court could consider under Texas Rule of Civil Procedure 166a,
and supporting and opposing affidavits stating facts on which liability or the defense is
based. § 27.006(a). We are to view the pleadings and evidence in the light most
favorable to the nonmovant. Kassab v. Pohl, 612 S.W.3d 571, 577 (Tex. App.—Houston
[1st Dist.] 2020, pet. denied). Whether the TCPA applies is an issue of statutory
construction, which we also review de novo. S&S Emergency Training Sols., Inc. v. Elliott,
564 S.W.3d 843, 847 (Tex. 2018).
KELLEY’S FIRST ISSUE
By his first issue, Kelley contends that the trial court erred in granting Satterlee’s
TCPA motion to dismiss.
Applicability of the TCPA to Kelley’s Claims
We begin our analysis with the first step of the three-step process under the TCPA:
whether Satterlee established that the TCPA applies to Kelley’s claims. Under the TCPA,
a party may file a motion to dismiss if a legal action is based on or in response to a party’s
exercise of the right of free speech, right to petition, or right of association. § 27.003(a).
Satterlee contends that Kelley’s claims against him are based on or in response to
Satterlee’s exercise of the right of free speech.
In determining whether a legal action should be dismissed, the court shall consider
the pleadings, evidence that could be considered in a traditional summary judgment, and
affidavits. § 27.006(a). The plaintiff’s petition is the “best and all-sufficient evidence of 5 the nature of the action.” Hersh, 526 S.W.3d at 467. “The basis of a legal action is not
determined by the defendant’s admissions or denials but by the plaintiff’s allegations.” Id.
A defendant moving for dismissal need only show that the plaintiff’s legal action is based
on or in response to a communication made in connection with a matter of public concern;
not that the communication actually occurred. Id. “When it is clear from the plaintiff’s
pleadings that the action is covered by the Act, the defendant need show no more.” Id.
The phrase “matter of public concern” under the TCPA refers to matters of political,
social, or other concern to the community as opposed to purely private matters. Creative
Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 135 (Tex. 2019). Speech
deals with matters of public concern when it can be fairly considered as relating to any
matter of political, social, or other concern to the community. Snyder v. Phelps, 562 U.S.
443, 453, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). Public matters include, among other
things, commission of, prosecution of, and judicial proceedings relating to crime. Brady
v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017). A matter of public concern includes an
issue related to health, safety, or community well-being. ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 900 (Tex. 2017).
In asserting his cause of action for defamation, Kelley contends, through his live
pleading, that “Defendants, acting in concert, defamed Plaintiff by making false
statements about Plaintiff’s character, personal history, employment history, and other
personal characteristics.” As to each of his other claims, his pleading makes allegations
against the defendants collectively and contends that each defendant is jointly and
severally liable for the damages caused. That Kelley claimed that Satterlee made
defamatory statements is evidenced by his statement in response to Satterlee’s motion 6 to dismiss that, “Moving Defendants concede that the online statements were made by
them (except for Mr. Satterlee, whose defamatory statements will be revealed in
discovery).”
However, to be covered by the TCPA, these statements must be made in
connection with a matter of public concern. Statements attributed to the defendants
include an allegation that Kelley committed domestic violence toward his wife and child;
attempted to assault Capanear’s fiancée; installed cameras in a public amenity area to
spy on community members, including minor children; engaged in inappropriate behavior
with students, including those he taught; made racist or bigoted comments toward
students; and possesses a pedophilic attraction toward young boys. We agree with
Satterlee that Kelley’s pleadings allege that Satterlee made these communications and
that these communications were made in connection with a matter of public concern.
Allegations that a local public-school teacher had previously committed violent crimes
and/or acted inappropriately toward students constitute a matter of public concern.
In response to Satterlee’s TCPA motion to dismiss, Kelley essentially takes the
unusual position of arguing for us to liberally construe his petition as not presenting a
cause of action against Satterlee. In his appellate brief, Kelley argues that “[n]one of
Satterlee’s filings . . . identify any communications by Satterlee, and there is no impact on
Satterlee’s right to freedom of expression that would qualify him to move [for dismissal]
under the TCPA.” Kelley also contends that “Satterlee specifically conceded that he did
not make any Facebook comments and that there is no evidence, including the Petition,
of any comments or other statements that he made.” However, as Satterlee contends in
his brief, “Kelley cannot plead that Satterlee was responsible for making defamatory 7 statements causing his alleged injury and then try to avoid the use of the TCPA by arguing
out of the other side of his mouth that because there were no statements [made] by
Satterlee[,] the TCPA does not apply.” The cases cited by Kelley are distinguishable in
that each of them involves a situation where the claims asserted did not allege that the
defendants made a statement. See Davis v. Weston, No. 03-22-00378-CV, 2024 Tex.
App. LEXIS 8457, at *20–21 (Tex. App.—Austin Dec. 6, 2024, no pet.) (mem. op.) (TCPA
does not apply to conduct); Lugo v. Sanchez, No. 03-21-00058-CV, 2021 Tex. App.
LEXIS 9222, at *13 (Tex. App.—Austin Nov. 12, 2021, pet. denied) (mem. op.) (TCPA not
applicable when plaintiff’s claims do not implicate defendant’s communications); Sullivan
v. Tex. Democratic Party, No. 03-19-00936-CV, 2021 Tex. App. LEXIS 2593, at *15–16
(Tex. App.—Austin Apr. 6, 2021, pet. denied) (mem. op.) (same); Encore Enters. v.
Shetty, No. 05-18-00511-CV, 2019 Tex. App. LEXIS 3431, at *9 (Tex. App.—Dallas Apr.
29, 2019, pet. denied) (mem. op.) (same). Here, Kelley’s claims that the “[d]efendants,
acting in concert, defamed Plaintiff by making false statements” clearly alleges that
Satterlee made the allegedly defamatory statements. And, as we decided above, these
communications were made in connection with a matter of public concern.
For the foregoing reasons, we conclude that Satterlee demonstrated that the legal
action brought against him by Kelley is based on or in response to his exercise of a
protected constitutional right.
Clear and Specific Evidence of Each Essential Element
Having determined that Satterlee met his burden to show that Kelley’s claims are
based on or in response to his free speech rights, we must now assess whether Kelley
8 met his burden to present clear and specific evidence of a prima facie case of each
essential element of his claims against Satterlee.5 As all of Kelley’s claims depend on his
allegation that the defendants defamed him, we examine the evidence that Kelley
presented of each essential element of his defamation claim.
The elements of defamation are (1) the defendant published a false statement; (2)
that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the
statement; and (4) damages resulted, unless the statement constitutes defamation per
se. D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017).
Kelley does not meet his burden to make a prima facie case for the first of these
elements: that Satterlee published a false statement. Kelley’s defamation claim simply
asserts that Satterlee, acting in concert with the other defendants “defamed [Kelley] by
making false statements . . . .” However, the specific allegations regarding Satterlee that
are contained in Kelley’s pleadings do not allege that he published any statement. 6 To
be actionable, the defamation must be attributed to the defendant. Western Mktg. v. AEG
Petro., LLC, 616 S.W.3d 903, 917–18 (Tex. App.—Amarillo 2021, pet. denied) (citing
Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam)). The lack of any
5 Once Satterlee makes an initial showing by a preponderance of the evidence that Kelley’s defamation suit is based on his exercise of free speech, the trial court must dismiss the action unless Kelley establishes a prima facie case for each essential element of the claim by clear and specific evidence. § 27.005(c); Youngkin, 546 S.W.3d at 679.
6 Kelley’s pleading alleges that Satterlee investigated Kelley’s personal and professional history in
an attempt to find any evidence to support each Defendant’s defamatory statements about Kelley, took advantage of his wife’s employment with the Georgetown Police Department to access the Department’s computers and databases to find information about the Villages of Berry Creek HOA board members (of which Kelley was President), posed as an employer of Villages of Berry Creek HOA board members and contacted those board members’ former employers and spouses for phony employment background checks in order to uncover negative information about the board members, and contacted Kelley’s ex-wife to uncover negative information about him. None of these specific allegations contend that Satterlee made or published any statement about Kelley. 9 statement by Satterlee is further evidenced by Kelley’s response to Satterlee’s motion to
dismiss, in which Kelley states that “[n]either the Motion [to dismiss] nor the
Supplement[al motion] identify any of Mr. Satterlee’s communications on which the
petition is based.” He goes on to contend that “[b]ecause Defendant Satterlee has failed
to identify any protected communication that he made that is the basis for the petition, the
Motion must be denied as to Defendant Satterlee.” However, this argument reverses the
burden. As the defendant, Satterlee can rely on the allegations made by Kelley to
establish that Kelley’s claims are based on or related to Satterlee’s exercise of his right
of free speech but he does not bear the burden to “identify any protected communication
that he made . . . .” (emphasis omitted). Rather, after Satterlee showed that the TCPA
applied to Kelley’s claims, it was Kelley who bore the burden to present clear and specific
evidence of each essential element of his claims. Nothing in Kelley’s pleading or evidence
identifies any allegedly defamatory statement made by Satterlee. In fact, in the hearing
on Satterlee’s attorney’s fees, Kelley admitted that, after taking Satterlee’s deposition,
“we don’t have a claim against him, and the case [against Satterlee] is over.” Because
Kelley has not identified any statement published by Satterlee, he likewise cannot
establish the remaining three elements of his defamation claim. Thus, we conclude that
the trial court did not err in granting Satterlee’s TCPA motion to dismiss.
Timeliness of Supplemental Motion to Dismiss
Kelley further raises the issue of the timeliness of the defendants’ supplemental
motion to dismiss. Assuming without deciding that the defendants, including Satterlee,
untimely filed their supplemental motion, Kelley contends that the affirmative defense of
truth was waived because it was not asserted by a timely filed pleading. Because we 10 conclude that Kelley does not meet his burden to present clear and specific evidence of
a prima facie case of each essential element of his claims against Satterlee, we need not
address the third step in the TCPA analysis: whether Satterlee has established an
affirmative defense or other ground on which he is entitled to judgment as a matter of law.
Conclusion
For the foregoing reasons, we conclude that the trial court did not err in granting
Satterlee’s TCPA motion to dismiss and overrule Kelley’s first issue.
KELLEY’S SECOND ISSUE
By his second issue, Kelley contends that the trial court abused its discretion in
awarding Satterlee $14,507.67 in attorney’s fees and $1,000 in sanctions under the
TCPA. However, a successful motion to dismiss under the TCPA requires the trial court
to grant the moving party “court costs and reasonable attorney’s fees incurred in
defending against the legal action” and allows that it may award “sanctions against the
party who brought the legal actions as the court determines sufficient to deter” future
actions that violate the TCPA. § 27.009(a). Beyond contending that Satterlee is not
entitled to attorney’s fees because his motion to dismiss should have been denied, Kelley
contends that Satterlee failed to prove the amount of reasonable and necessary
attorney’s fees and that the trial court erred in imposing sanctions against Kelley.
Attorney’s Fees
When, as here, the applicable statute mandates that the prevailing party shall
recover attorney’s fees, the award of fees is not discretionary. Hoelscher v. Kilman, No.
11 03-04-00440-CV, 2006 Tex. App. LEXIS 1351, at *10 (Tex. App.—Austin Feb. 16, 2006,
no pet.) (mem. op.); see § 27.009(a)(1) (when TCPA motion to dismiss is granted, trial
court “shall award . . . reasonable attorney’s fees incurred in defending against the legal
action . . .”). “However, before a court can award attorney’s fees, the party must prove
that they are reasonable and necessary.” Rohrmoos Venture v. UTSW DVA Healthcare,
LLP, 578 S.W.3d 469, 487 (Tex. 2019); Hoelscher, 2006 Tex. App. LEXIS 1351, at *11
(citing Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 75 (Tex. App.—Houston [14th Dist.]
2005, no pet.). The reasonableness of the fees is generally a question of fact and rests
within the sound discretion of the trial court. Landa v. Rogers, No. 03-21-00097-CV, 2023
Tex. App. LEXIS 2069, at *25 (Tex. App.—Austin Mar. 30, 2023, no pet.) (mem. op.). The
party seeking attorney’s fees must prove the amount and reasonableness of the fees
sought, which must include documentation of the services provided, who provided them
and at what hourly rate, when they were performed, and how much time the work
required. Id. (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762–63 (Tex. 2012)). The
proponent of the award of attorney’s fees should first establish the lodestar amount: the
calculation of the reasonable hours spent on the case by counsel multiplied by a
reasonable hourly rate for the attorney and his staff. Rohrmoos Venture, 578 S.W.3d at
494. The lodestar amount is “presumptively reasonable.” Id. at 496. When a lawsuit
involves multiple claims or parties, the proponent of attorney’s fees must segregate
recoverable fees from those incurred by parties or on claims for which fees are not
recoverable. Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 143
(Tex. App.—Houston [14th Dist.] 2009, pet. denied). However, an estimate of the relative
time spent on recoverable versus nonrecoverable time may be sufficient to establish
12 segregation of the fees sought. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314
(Tex. 2006). When evidence of attorney’s fees is clear, positive, and could have been
readily controverted but was not refuted by the party opposing the award of attorney’s
fees, the amount of attorney’s fees are established as a matter of law. Hoelscher, 2006
Tex. App. LEXIS 1351, at *12 (citing Ragsdale v. Progressive Voters League, 801 S.W.2d
880, 882 (Tex. 1990)). We review a trial court’s decision to grant or deny attorney’s fees
under an abuse of discretion standard, and we review the amount awarded under a legal
sufficiency standard. Id. at *9–10 (citing Allison v. Fire Ins. Exch., 98 S.W.3d 227, 262
(Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m. by agr.)).
In the present case, Satterlee presented evidence of the lodestar amount of his
attorney’s fees. Kelley did not object to Satterlee’s affidavit and itemization of his
attorney’s fees. This evidence was clear, positive, and could have been readily
controverted, but Kelley did not challenge this evidence by cross-examination of
Satterlee’s counsel or by other evidence.7 Consequently, the lodestar amount of
Satterlee’s attorney’s fees was established as a matter of law. See id. at *12 (“Evidence
of attorney’s fees that is clear, direct, and uncontroverted is taken as true as a matter of
law, especially where the opposing party had the means and opportunity of disproving
7 Kelley contends for the first time in his reply brief that he was afforded insufficient time to controvert Satterlee’s counsel’s affidavit because Kelley did not receive it until the night before the hearing. While Kelley’s counsel noted when the affidavit was received, he did not contend that the late receipt prevented him from contesting the evidence. Nor did he request a continuance.
Also, for the first time in his reply brief, Kelley points to redactions contained in the billing records submitted with Satterlee’s counsel’s affidavit as impugning whether these records are clear, positive, and controvertible. Kelley did not make this argument to the trial court. Further, while Satterlee did not identify the reason for the redactions at the hearing, on appeal, he explains that he “removed or reduced items that were not recoverable.” A review of the records allows for a reasonable conclusion that this was the purpose of the redactions and reductions. Further, Kelley acknowledges that these redacted entries were not included in the total fees sought by Satterlee. 13 the evidence but did not.”). Kelley also did not object to or contest Satterlee’s counsel’s
contention that the appropriate amount of Satterlee’s attorney’s fees is an apportionment
of one-third of the attorney’s fees charged to the three defendants represented by
Satterlee’s counsel.8 An estimate of attorney’s fees incurred on recoverable tasks is
sufficient for segregation. Chapa, 212 S.W.3d at 314. Kelley voiced no objection to
Satterlee’s evidence of the attorney’s fees he incurred in defending against Kelley’s suit
and Kelley presented no contrary evidence. We conclude that there was sufficient
evidence to support the trial court’s award of Satterlee’s reasonable and necessary
attorney’s fees in the amount of $14,507.67.
Sanctions
Sanctions are a subset of damages and costs that are awardable under the TCPA.
See § 27.009. A trial court may award sanctions it deems “sufficient to deter the party
who brought the legal action from bringing similar actions” in the future. § 27.009(a)(2).
This Court reviews sanction awards under an abuse of discretion standard. Serafine v.
Blunt, No. 03-23-00046-CV, 2024 Tex. App. LEXIS 5209, at *12 (Tex. App.—Austin July
24, 2024, no pet.) (mem. op.) (citing Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)).
The trial court noted that sanctions were justified by Kelley’s admission in
pleadings and in open court that he had no evidence of any defamatory comments made
by Satterlee. The trial court acted within its discretion to sanction Kelley for bringing a
8 Contrary to Kelley’s contention in his brief, Satterlee’s counsel specifically stated at the hearing
regarding attorney’s fees that “there’s no way to segregate the work between at least my three defendants. So[,] I’m asking the Court to award one-third of that amount [the lodestar amount for all three defendants], which would be [$]14,507.67, to Mr. Satterlee.” Kelley voiced no objection to this approach and did not argue before the trial court that Satterlee’s affidavit would allow for a more exacting segregation of fees. 14 defamation suit against Satterlee when Kelley could not identify any defamatory
statement made by Satterlee. As to the amount of the sanction, Satterlee requested
$50,000. However, the trial court awarded the significantly smaller sum of $1,000. The
trial court stated in its order granting sanctions that the $1,000 amount “is sufficient to
deter Kelley from bringing similar actions . . . .” Kelley has not established that the trial
court abused its discretion by imposing $1,000 in sanctions against him.
Kelley argues that Satterlee is not entitled to sanctions because he did not
specifically plead for them. However, the applicable statute provides that sanctions may
be awarded at the court’s discretion as a deterrence against the plaintiff bringing similar
suits in the future. § 27.009(a)(2). Kelley identifies no authority that requires a movant
under the TCPA to specifically request sanctions.
We conclude that Kelley has not established that the trial court abused its
discretion in awarding Satterlee $14,507.67 in attorney’s fees and imposing $1,000 in
sanctions against Kelley.
SATTERLEE’S CROSS-POINT
Satterlee filed a cross-appeal contending that the trial court abused its discretion
in not awarding him appellate attorney’s fees. Kelley’s sole response is that the trial court
erred in granting Satterlee’s motion to dismiss, so he was not entitled to appellate
attorney’s fees. We have previously decided that the trial court properly granted
Satterlee’s motion to dismiss.
15 As previously discussed, because Satterlee successfully moved to dismiss
Kelley’s claims against him under the TCPA, the trial court was required to award
Satterlee “court costs and reasonable attorney’s fees incurred in defending against the
legal action . . . .” § 27.009(a)(1). The transferor court has held that when a party who is
entitled to attorney’s fees under an applicable statute presents uncontroverted evidence
of anticipated appellate attorney’s fees, it is an abuse of discretion for the trial court not
to award such fees. See Hoelscher, 2006 Tex. App. LEXIS 1351, at *15 (trial court
abused discretion by not awarding appellate attorney’s fees when mandated by statute
and uncontroverted evidence of fees presented); see also Lee v. Perez, 120 S.W.3d 463,
469–70 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (trial court abused discretion by
awarding no appellate attorney’s fees after receiving uncontested evidence of attorney’s
fees). “The party seeking attorneys’ fees bears the burden of proof and must supply
enough facts to support the reasonableness of the amount awarded.” Yowell v. Granite
Operating Co., 620 S.W.3d 335, 354 (Tex. 2020). Because contingent appellate fees
have not yet been incurred, the party seeking to recover these fees must provide expert
“opinion testimony about the services it reasonably believes will be necessary to defend
the appeal and a reasonable hourly rate for those services.” Id. at 355.
In the present case, because the trial court granted Satterlee’s motion to dismiss,
the trial court abused its discretion in failing to award him appellate attorney’s fees.
§ 27.009(a)(1); Hoelscher, 2006 Tex. App. LEXIS 1351, at *15; Lee v. Perez, 120 S.W.3d
463, 469–70. Satterlee supported his request for attorney’s fees with expert testimony in
the form of an affidavit from his attorney, who testified to his qualifications, experience,
and familiarity with the reasonable, usual, and customary attorney’s fees charged in
16 “Williamson, Travis Counties, and surrounding counties for a case of this type.” He
testified to his hourly rate and the hourly rate of his associate and legal assistants. As to
contingent appellate fees, he stated that Satterlee will incur $12,000 in reasonable and
necessary attorney’s fees in the event of an appeal with an additional $6,000 if oral
argument is requested. He also concluded that Satterlee would incur an additional $6,000
in reasonable and necessary attorney’s fees to respond to a petition for discretionary
review (PDR), an additional $12,000 for a merits brief if the PDR is granted, and an
additional $12,000 if oral arguments are requested by the Texas Supreme Court.
Satterlee’s counsel’s affidavit was uncontroverted by Kelley.
While the affidavit provides evidence of his and his colleagues’ reasonable hourly
rates, it does not include any other facts to support the reasonableness of the contingent
appellate fees. For example, it lacks an estimate of the hours required in the event of an
appeal or any description of the work that responding to such an appeal would entail.
See Yowell, 620 S.W.3d at 355 (requiring evidence of reasonable hourly rate and services
party reasonably believes will be necessary to defend appeal). While Satterlee is entitled
to an award of appellate attorney’s fees, the evidence he presented to the trial court is
not sufficient to allow this Court to render judgment for those fees. Consequently, we
must remand this issue to the trial court to determine Satterlee’s reasonable and
necessary appellate attorney’s fees.
We sustain Satterlee’s cross-point that the trial court abused its discretion by failing
to award him appellate attorney’s fees. However, we conclude that the record does not
provide sufficient evidence for this Court to render an award of appellate attorney’s fees.
Consequently, we remand the case to the trial court for a determination of such fees. 17 CONCLUSION
We overrule both of Kelley’s appellate issues and affirm the trial court’s dismissal
order. We also affirm the trial court’s order on attorney’s fees and sanctions. We remand
the case to the trial court for the limited purpose of determining Satterlee’s reasonable
and necessary appellate attorney’s fees.
Judy C. Parker Justice