TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-24-00682-CV
Trivista Oil Company LLC and Trivista Operating LLC, Appellants
v.
Fort Apache Energy, Inc., Appellee
FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY NO. 423-9718, THE HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING
OPINION
Appellants Trivista Oil Company LLC and Trivista Operating LLC (collectively,
Trivista) challenge the district court’s order granting Appellee Fort Apache Energy, Inc.’s (FAE)
motion to dismiss under the Texas Citizens Participation Act (TCPA). We must determine
whether the TCPA applies to all of Trivista’s claims and to alleged communications between
FAE and landowners who had leased mineral interests to Trivista. We also must determine
whether we may address FAE’s cross-issue regarding attorney’s fees. Because we conclude that
the TCPA applies to Trivista’s claims against FAE and that we may not address FAE’s
cross-issue, we affirm.
BACKGROUND
Trivista is an operator in the Serbin (Taylor Sand) field, with about 250 wells
across Bastrop and Lee Counties. The wells hold leases from numerous local landowners. In
March 2024, Trivista personnel were denied access to one of the leased properties by lessor Nancy Littlefield. She informed Trivista that she and some other mineral owners who leased to
Trivista had signed an additional oil, gas, and mineral lease with FAE. After speaking by phone
with Troy Poole, who worked for Trivista, Littlefield again permitted Trivista to access her
property. Poole testified that the lockout lasted “[l]ess than twenty-four hours. I mean, she gave
us access nearly immediately.” Based on the conversation Poole had with Littlefield, in which
she mentioned signing a lease with FAE, Trivista began investigating FAE’s activities and
learned that FAE had entered into a top lease with Littlefield and had also been contacting other
lessor-owners regarding the possibility of top leasing. A top lease is an agreement by which the
lessee takes a future interest in a mineral estate subject to the subsisting prior or “bottom” lease.
TRO-X, L.P. v. Anadarko Petroleum Corp., 548 S.W.3d 458, 462 (Tex. 2018). The future
interest takes effect once the bottom lease has terminated. Id. FAE’s lease with Littlefield
specified that it was “subject to” any existing bottom lease so long as that lease “is now or
hereafter remains in force and effect as to any acreage or subsurface depths according to its
present terms, conditions and covenants.”
Trivista asserts that FAE “contacted an undetermined number of the Lessor
Owners in Bastrop and Bastrop Counties in an effort to convince such Lessor Owners to sign a
top lease with [FAE] or one of its land services agents.” As it relates to Littlefield, Trivista
alleges that FAE “contacted Nancy Littlefield seeking to convince her and her co-mineral
interest owners to try and terminate their existing Oil, Gas, and Mineral Lease with Trivista Oil
Co. LLC covering certain lands in Bastrop County subject to the Act Ranch Lease.” Trivista
further stated in its live petition that FAE representatives “urged Mrs. Littlefield to sign a new
lease with [FAE]. Upon the urging of [FAE], Mrs. Littlefield signed a new lease, also known as
a top lease with [FAE].”
2 In May 2024, Trivista sued FAE for tortious interference with a contract and also
sought a declaratory judgment “that any top leases taken by [FAE] from any Owner Lessor
which is currently a party to an existing [Trivista lease] is invalid and of no force and effect due
to the fact that the Bottom Leases are in full force and effect.” Trivista sought a temporary
restraining order and temporary and permanent injunctive relief. The trial court granted
Trivista’s request for a temporary ex parte restraining order prohibiting FAE from (1) contacting
any lessor of “any oil, gas or mineral lease, owner or operated by [Trivista] where it is clear from
the production records of the Operator filed with the Texas Railroad Commission that the oil, gas
and mineral lease is sufficient to perpetuate the lease”; (2) entering into any top lease or “option
to lease [with] any mineral owner who is a Lessor under an oil, gas or mineral lease owned or
operated by [Trivista] where it is clear from the production records . . . that the oil, gas and
mineral lease is sufficient to perpetuate the lease”; (3) “exercising or recording any written
instrument in the real property records of Bastrop County, Texas obtained by and through the
tortious actions specifically alleged in the Original Petition” pending a hearing on Trivista’s
application for temporary injunction. Before the temporary-injunction hearing, FAE filed a
motion to dismiss Trivista’s claims under the TCPA, alleging that its communications with
mineral owners implicated FAE’s right to free speech. In July, the trial court denied Trivista’s
application for temporary injunction. The same day, Trivista amended its petition, adding a
claim for trespass to try title. FAE supplemented its TCPA motion to address the newly added
claim. After a hearing, the trial court granted FAE’s TCPA motion, dismissing Trivista’s claims
with prejudice. At the hearing, FAE stated it was seeking
costs and fees. And with respect to the sanctions, I didn’t make a suggestion, but if you’re inclined, my view it should be at least commensurate with the time and
3 expense associated with the temporary injunction hearing that we had to go through, that we had to pay for, that [FAE] is out of pocket at this point.
FAE did not present further arguments or evidence regarding fees, costs, and sanctions during
that hearing, nor did it suggest an appropriate amount for these items in its motion or reply. In
its order granting the TCPA motion, the trial court awarded FAE $5,000 in court costs and
attorney’s fees and additionally ordered Trivista to pay sanctions in the amount of $5,000.
Trivista filed a notice of appeal on October 18, 2024. On November 1, FAE filed
a motion to modify the judgment, to which it attached evidence of its costs and attorney’s fees,
which far exceeded the $5,000 awarded by the court. FAE also sought to increase the amount of
the sanctions award. The motion was not set for a hearing within the time when the court
retained plenary power and was overruled by operation of law. FAE filed a notice of appeal
from the trial court’s denial of FAE’s motion to modify on January 31, 2025.
ANALYSIS
On appeal, Trivista asserts the trial court erred in granting FAE’s motion to
dismiss because (1) FAE’s communications soliciting top leases fall under the TCPA’s
commercial-speech exemption, (2) FAE did not carry its burden to show that its communications
regarding top leases were connected to a matter of public concern, and (3) FAE did not show that
Trivista’s trespass to try title and declaratory judgment causes of action were based on or in
response to FAE’s exercise of the right of free speech. FAE raises a cross-issue that this Court
should remand to the trial court solely for determination of a reasonable amount of attorney’s
fees and court costs, asserting that the amounts awarded to it by the trial court were insufficient.
4 The TCPA
The TCPA “protects speech on matters of public concern by authorizing courts to
conduct an early and expedited review of the legal merit of claims that seek to stifle speech
through the imposition of civil liability and damages.” Lilith Fund for Reprod. Equity
v. Dickson, 662 S.W.3d 355, 363 (Tex. 2023). Courts review a TCPA motion to dismiss using a
three-step process. Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). First, the movant
bears the initial burden to demonstrate by a preponderance of the evidence that the TCPA applies
because the “legal action” against the movant is “based on or is in response to” its “exercise of
the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code
§ 27.003(a); Montelongo, 622 S.W.3d at 296. Second, if the TCPA applies, the claimant may
avoid dismissal by establishing “by clear and specific evidence a prima facie case for each
essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c);
ExxonMobil Pipeline. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). Third, if the claimant
meets that burden, the court must still grant the motion if the movant establishes by a
preponderance of the evidence “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 § 27.005(d);
ExxonMobil Pipeline, 512 S.W.3d at 898.
The phrase “clear and specific evidence” describes the quality of evidence
required to establish a prima facie case, while “prima facie case” sets the “amount of evidence
required to satisfy the nonmovant’s minimal factual burden.” Serafine v. Blunt, 466 S.W.3d 352,
358 (Tex. App.—Austin 2015, no pet.). A prima facie case will entitle a party to recover if no
contrary evidence is offered. Id. Bare, baseless opinions do not create fact questions and are not
a sufficient substitute for the clear and specific evidence required to establish a prima facie case.
5 In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015) (orig. proceeding). Conclusory statements are
not probative and will not establish a prima facie case. Serafine, 466 S.W.3d at 358. The trial
court may consider pleadings as evidence under the TCPA, but the plaintiff must do more than
“mere notice pleading”; for pleadings to provide clear and specific evidence, the plaintiff must
provide enough detail to show the factual basis for its claim. RigUp, Inc. v. Sierra Hamilton,
LLC, 613 S.W.3d 177, 190 (Tex. App.—Austin 2020, no pet.) (citing In re Lipsky, 460 S.W.3d at
590–91). Allegations alone are often not specific enough to make a prima facie case; the
nonmovant must offer or produce evidence of facts to make the prima facie case. See
Montelongo, 622 S.W.3d at 301; Buzbee v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 29
(Tex. App.—Houston [14th Dist.] 2020, no pet.).
A non-movant can avoid the TCPA’s burden-shifting requirements by invoking
one of the statute’s exemptions. Molina Healthcare, Inc. v. State ex rel. Thurmond,
No. 03-20-00077-CV, 2020 WL 7233609, at *2 (Tex. App.—Austin Dec. 9, 2020, pet. denied)
(mem. op.) (citing State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018)). When invoked,
the trial court must consider an exemption’s applicability after and in the context of the movant
having met its initial burden under the first step of the dismissal process. Castleman v. Internet
Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018). If the nonmovant shows that an exemption
applies, the TCPA may not be used to dismiss the action. See Tex. Civ. Prac. & Rem. Code
§ 27.010; see also Best, 562 S.W.3d at 11 (noting that if a TCPA exemption applies, the movant
cannot invoke the TCPA’s protections); Martin v. Walker, 606 S.W.3d 565, 569 (Tex. App.—
Waco 2020, pet. denied) (nonmovant has the burden to prove that a statutory exemption applies).
We review de novo whether each party met its burdens under the TCPA.
O’Rourke v. Warren, 673 S.W.3d 671, 679–80 (Tex. App.—Austin 2023, pet. denied); Grant
6 v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 873 (Tex. App.—Austin 2018, pet. denied). In
determining “whether a legal action is subject to or should be dismissed under this chapter,” we
may “consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of
Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or
defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a). We review the pleadings and
evidence in the light most favorable to the nonmovant. O’Rourke, 673 S.W.3d at 680.
Trespass to try title and declaratory judgment claims
We first consider Trivista’s contention that FAE failed to show that its trespass to
try title and declaratory judgment 1 claims were based on or in response to FAE’s exercise of the
right of free speech. In its response to FAE’s motion to dismiss in the trial court, Trivista argued
that it had established its prima facie case for trespass to try title, listed elements of a claim for
trespass to try title, then stated, “None of the elements of Trivista’s claim for trespass to try title
relate to or depend on to any right of free speech, therefore trespass to try title is a claim which is
improper to dispose of under the TCPA.” Trivista bases its argument on the contention that a
claim for trespass to try title generally does not need to rely on any alleged communication, and
absent a communication, a claim cannot be based on or in response to the right to free speech.
1 Trivista states in its brief on appeal that “Trivista’s [declaratory judgment] claim should have been pleaded as a statutory trespass-to-try-title cause of action. . . . Trivista’s amended petition added the proper statutory claim yet retained the declaratory judgment claim, as FAE noted in its renewed special exceptions.” The propriety of pleading a declaratory judgment action in addition to a claim for trespass to try title is not before us, but because the parties agree that these claims both arise from the same speech and action, both claims must meet the same fate under the TCPA. 7 In its amended petition, Trivista presented its trespass to try title claim by
incorporating by reference “each of the foregoing paragraphs as if the same had been set forth
herein verbatim” and stating:
23. Pursuant to TEX. PROP. CODE § 22.001, Plaintiffs request judgment as to their claim of title to the Property. In support of this action, Plaintiffs satisfy the requirements for their claim under TEX. R. CIV. P. 783, and have stated herein; (a) the names of the Plaintiffs and Defendants; (b) the legal description of the premises; (c) that the Plaintiffs claim title to the Property in fee simple determinable; ( d) that Plaintiffs are in possession of and are entitled to possession of the Property; (d) that the Defendant unlawfully claims title to the Property which unlawfully prevents Plaintiffs from their rightful possession; (f) that the Defendant’s actions have caused a cloud to be placed on Plaintiff’s title, causing it economic injury from lost production and the loss of quiet enjoyment of its title.
24. Demand has been made on Defendant to recognize the superiority of Plaintiff’s title but Defendant has failed and refused, and continues to fail and refuse, to do so, claiming an interest in the mineral estate superior to and to the exclusion of the Plaintiff’s interests.
The incorporated paragraphs contain no allegation relating to FAE unlawfully claiming title to
the property that would unlawfully “prevent[] Plaintiffs from their lawful possession.” Nor is
there any factual allegation supporting the assertion that FAE’s “actions have caused a cloud to
be placed on Plaintiff’s title.” Trivista did allege that “Plaintiffs have learned that Defendant has
signed at least one top lease with a Lessor Owner, or its heirs, assigns or successors-in-interest.”
Neither Trivista’s petition nor its response to the TCPA motion specify what property, out of the
many properties for which they have leases, is the subject of the trespass to try title action.
Counsel for Trivista did not mention the trespass to try title or declaratory judgment claims at the
hearing on the TCPA motion.
On appeal, Trivista clarifies that a “single, simple factual allegation undergirds”
its claims for trespass to try title and declaratory judgment: “in March 2024, Nancy Littlefield
8 locked Trivista out of ‘lands subject to the Act Ranch Lease,’ explaining that Trivista’s access
was ‘prohibited because [Ms. Littlefield and her co-lessors] had signed a new lease with
representatives of the Defendant.’” Regarding the lockout, Trivista’s live pleading asserted that
“[i]n late March 2024, Plaintiffs were advised by Nancy Littlefield . . . that Plaintiffs’ access to
the lands subject to the Act Ranch Lease . . . was prohibited because those successors-in-interest
had signed a new lease” with FAE. This allegation relied on the existence of a 1986 lease signed
by Littlefield’s predecessors in interest and on Troy Poole’s affidavit, in which he averred that:
7. In mid-March, 2024, Nancy Littlefield informed pumpers for Trivista Operating LLC that they no longer would be granted access to the Act Ranch Lands and the producing wells on the Act Ranch lands.
8. In late March 2024, I had a telephone conversation with Mrs. Littlefield in which she informed me that she had been contacted by representatives of Fort Apache Energy, Inc. in regard to leasing her mineral rights.
9. Mrs. Littlefield informed me that she and her brother, John Tonn had signed a new oil, gas and mineral lease with a company named Fort Apache Energy.
10. After our conversation in late March, 2024, Mrs. Littlefield agreed to grant access to Trivista Operating LLC to the Act Ranch lands. Trivista Operating LLC has remained the P-4 operator of record with the Texas Railroad Commission at all pertinent times.
Poole testified at the hearing on Trivista’s temporary injunction that the duration of the lockout
was less than twenty-four hours and that Trivista was able to access Littlefield’s property again
“nearly immediately.” He also mentioned that other landowners who may or may not have had
leases with FAE had also locked out Trivista on occasion. Trivista attributed Littlefield’s
lockout to her having been contacted by representatives of FAE in regard to leasing her mineral
rights. Trivista alleged that FAE “contacted Nancy Littlefield seeking to convince her and her
co-mineral interest owners to try and terminate their existing Oil, Gas, and Mineral Lease with
9 Trivista Oil Co. LLC covering certain lands in Bastrop County subject to the Act Ranch Lease”
and urged her to sign a lease with FAE. At the hearing on the temporary injunction, Trivista’s
president testified on direct examination:
What [FAE was] trying to do is lock me out. Lock me out of my wells that I’m responsible—health and safety, you know, environmental, how do I go in and monitor and take care of—my operators were trying to get into wells that they were convincing the landowners to lock us out.
Trivista’s president also acknowledged that “once in a while” an owner would lock the fence for
other reasons, such as wanting a road paved or a gate fixed. But he insisted that locking was
more prevalent since FAE “[came] into the field.” He explained, “The locked gates is that
they’re going, trespassing, giving false information to the landowners, or to the royalty owners.”
On cross-examination, Trivista’s president maintained that alleged communications by FAE to
lessor-owners were the reason for the lockout:
Q. And you say—you testified that Fort Apache is, as I wrote it down, convincing the landowners to lock us out. Meaning Trivista. You don’t have any personal knowledge that any representative of Fort Apache has done that, do you?
A. Well, based on the information I was receiving from my field people, that’s it.
...
A. We have been going in and out of these gates for years without an issue. We have to get into these gates. By law we’re responsible to ensure and operate those wells. When a gate gets locked, my antennas go up, because I’m responsible to ensure the safety of that well, to ensure that the environmental of that well—so when a landowner locks the gate, you have to ask that question, what provoked them from locking that gate?
Q. And you’re guessing that was Fort Apache?
A. No, I’m not guessing. That’s what came back, is there was discussions with our field.
10 In short, Trivista’s allegations relating to lockouts, including Littlefield’s, were premised on the
assertion that FAE was communicating with lessor-owners regarding the state of their current
leases and wells and the leasing of mineral rights. Even viewing the pleadings and evidence in
the light most favorable to Trivista, FAE has demonstrated that Trivista’s claims for trespass to
try title and declaratory relief rely on and are inextricably intertwined with FAE’s
alleged communications with lessor-owners. See Landa v. Rogers, No. 03-21-00097-CV,
2023 WL 2697880, at *5 (Tex. App.—Austin Mar. 30, 2023, no pet.) (mem. op.) (declining to
conclude that plaintiff’s claims were based on a “single allegation in a vacuum” and holding that
claims were based on the right to petition when they were inextricably intertwined with
allegations and evidence concerning communications made in or pertaining to a particular
proceeding). The same communications underlying Trivista’s claim for trespass to try title form
the basis of its claim for tortious interference with a contract. Therefore, whether the TCPA
applies to all of Trivista’s claims depends on whether the alleged communications “relate to a
matter of public concern” under the TCPA.
Matter of public concern
The TCPA applies only if Trivista’s claims are based on a protected right, such as
the exercise of the right of free speech. See Tex. Civ. Prac. & Rem. Code § 27.003(a). The
TCPA defines “exercise of the right of free speech” as a “communication made in connection
with a matter of public concern.” Id. § 27.001(3). Trivista’s claims are based on
“communications” by FAE, as that term is defined in the TCPA. See id. § 27.001(1). Whether
FAE met its initial burden to show that Trivista’s claims are based on FAE’s “exercise of the
11 right of free speech” turns on whether these communications were “made in connection with a
matter of public concern.” See id. § 27.001(3).
As relevant here, a “matter of public concern” is “a statement or activity regarding
“a matter of political, social, or other interest to the community” or “a subject of concern to the
public.” Id. § 27.001(7). Communications “with a limited business audience concerning a
private contract dispute, do not relate to a matter of public concern under the TCPA.” Creative
Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 136 (Tex. 2019). But nothing in the
plain language of the TCPA requires that the communication be made in a public forum, so long
as the substance of the communication involves a public matter. See ExxonMobil Pipeline,
512 S.W.3d at 898, 901 (concluding that private statements by movants concerning plaintiff’s
alleged failure to gauge a storage tank related to a matter of public concern due to “serious safety
and environmental risks”); Lippincott v. Whisenhunt, 462 S.W.3d 507, 509–510 (Tex. 2015)
(applying TCPA to private communications and concluding that alleged improper provision of
medical services by a health-care professional are matters of public concern). To be
“in connection with a matter of public concern,” communications must concern matters that have
“public relevance beyond the pecuniary interests of the private parties involved.” Creative Oil &
Gas, LLC, 591 S.W.3d at 136. That is, “the communication on which the suit is based must have
some relevance to a public audience.” McLane Champions, LLC v. Houston Baseball Partners
LLC, 671 S.W.3d 907, 916 (Tex. 2023). Moreover, “a communication cannot be made in
connection with a matter of public concern unless it had relevance to a public audience at the
time it was made, regardless of the happenstance of after-the-fact ramifications.” Id. at 917.
FAE’s communications related to the condition of wells and equipment on
numerous properties, Trivista failing to pay owners or produce oil and gas, and questions
12 regarding the accuracy of Trivista’s production records filed with the Texas Railroad
Commission. In its communications with lessor-owners, FAE focused on assessing the state of
the wells it sought to top lease. FAE emphasized both in this Court and in the trial court that this
case relates to about 250 wells across 20,000 acres, involving hundreds of landowners, and
covering an area that includes the Lost Pines Habitat Conservation Plan. In addition to checking
Railroad Commission records for information pertaining to whether wells were currently
producing, and noting some extended production gaps, FAE sent agents to inspect wells in the
field. One agent reported finding that thirty-six of forty-five wells visited had some form of leak
or spill. Agents reported finding equipment in disrepair, storage tanks with holes, and some
wells inaccessible due to overgrown vegetation and, in one instance, a “small pond” covering the
road to the well despite the fact that the area was experiencing a drought at the time of the visit.
The record contains photographs of wells and related equipment in various conditions. One
affiant explained thatone well he investigated “was either being produced without the required
permit or the production revenue was being misreported to the” Railroad Commission.
Responses to FAE from some lessor-owners further reflect that FAE’s
communications related to the state of the wells. Littlefield expressed in an email that she was
“excited that the existing wells will be cleaned up.” Another lessor-owner wrote that he “had to
cut off the oil well motor” because it was smoking, but Trivista was “not answering their phone.”
A lessor-owner who also works with FAE averred that he is “personally aware that my neighbors
and other mineral owners in our community are upset about Trivista’s well sites being poorly
maintained, about oil spilling onto their property, and about not being paid royalties for long
periods of time.” Just as the supreme court held that private statements by movants concerning
plaintiff’s alleged failure to gauge a storage tank related to a matter of public concern due to
13 “serious safety and environmental risks” under a former version of the TCPA, ExxonMobil
Pipeline, 512 S.W.3d at 898, 901, we conclude that FAE’s communications regarding wells and
other equipment being kept in disrepair or neglected constitute statements or activities regarding
“a matter of . . . interest to the community” and “a subject of concern to the public,” particularly
given the breadth of the land involved and the responses to FAE’s communications from
members of the community. See McDonald Oilfield Operations, LLC v. 3B Inspection, LLC,
582 S.W.3d 732, 746 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (communications regarding
Operator Qualifications implicated a matter of public concern under former version of TCPA).
Because the alleged communications were made in connection with a matter of public concern,
we hold that FAE met its initial burden to establish the TCPA’s applicability.
Commercial-speech exemption
Rather than asserting that it has established a prima facie case for each element of
its claims, Trivista seeks to invoke the TCPA’s commercial-speech exemption. See Molina
Healthcare, 2020 WL 7233609, at *2. If Trivista shows that this exemption applies, FAE cannot
rely on the TCPA to dismiss the legal action. See Tex. Civ. Prac. & Rem. Code § 27.010.
Under the commercial-speech exemption, the TCPA “does not apply to”
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 a commercial transaction in which the intended audience is an actual or potential buyer or customer.
Id. § 27.010(a)(2). The Texas Supreme Court has construed the commercial-speech exemption
as consisting of four elements:
14 (1) the defendant was primarily engaged in the business of selling or leasing goods [or services],
(2) the defendant made the statement or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services,
(3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and
(4) the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides.
Castleman, 546 S.W.3d at 688. “The burden to establish the commercial-speech exemption is on
the party relying on it.” Grant, 556 S.W.3d at 887. We consider the pleadings and record
evidence to determine whether a party has met its burden on the exemption’s elements. See Rose
v. Scientific Mach. & Welding, Inc., No. 03-18-00721-CV, 2019 WL 2588512, at *4 (Tex.
App.—Austin June 25, 2019, no pet.) (mem. op.). Factual allegations in a plaintiff’s petition
alone may be sufficient to invoke the exemption. See id.; see also Dickens v. Jason C. Webster,
P.C., No. 05-17-00423-CV, 2018 WL 6839568, at *6 (Tex. App.—Dallas Dec. 31, 2018, no pet.)
(mem. op.) (analyzing allegations in plaintiff’s petition to determine what statements or conduct
were at issue and concluding that plaintiff failed to show that the alleged statements or conduct
satisfied elements of commercial-speech exemption). The supreme court wrote in Castleman,
“the only reasonable and logical construction of the exemption” is “that the statement or conduct
must arise out of ‘the defendant’s’ sale or lease of goods or services, or that the defendant be
acting in its capacity as a seller or lessor of those goods or services.” 546 S.W.3d at 688.
FAE asserts that the first and fourth Castleman elements are not met. As to the
first element, an interest in an oil and gas lease is considered a real property interest. See
Matagorda Cnty. Appraisal Dist. v. Coastal Liquids Partners, L.P., 165 S.W.3d 329, 332 (Tex.
15 2005); Ely v. Briley, 959 S.W.2d 723, 726 (Tex. App.—Austin 1998, no pet.) (“Under Texas
law, a mineral interest is a property interest.”) (citing Toledo Soc’y for Crippled Children
v. Hickok, 261 S.W.2d 692, 694 (Tex. 1953)). This is true whether or not the mineral estate is
constructively severed from the surface estate. Holloway’s Unknown Heirs v. Whatley,
131 S.W.2d 89, 92 (Tex. [Comm’n App.] 1939). A mineral estate possesses “all the incidents
and attributes of an estate in land.” Harris v. Currie, 176 S.W.2d 302, 305 (Tex. 1943).
Trivista urges that FAE was engaged primarily in the selling or leasing of goods
or services because of the performance often required of a lessee under an oil and gas lease. See
Amoco Prod. Co. v. Alexander, 622 S.W.2d 563, 567 (Tex. 1981). Specifically, Trivista asserts
that the consideration offered by FAE as the lessee, including covenants to “to produce, utilize,
or market the minerals capable of being produced from said wells” and to “deliver to the credit
of the lessor, in the pipe line to which lessee may connect its wells, the equal one-eighth part of
all oil produced and saved by lessee from said land,” are, “indisputably, promises by FAE to
perform ‘services,’ as that term is generally understood.” It further asserts that FAE also sells
“goods” because that term includes real property under statutes including the business and
commerce code and the tax code. See Tex. Bus. & Com. Code § 15.03(2); Tex. Tax Code
§ 171.1012. Trivista argues that FAE’s provision of “services” under its leases are the “meat and
bones of the business for FAE, Trivista, and every other mineral lessee in Texas.”
Unlike the statutes identified by Trivista as defining “goods” to include real
property, the TCPA does not define “goods.” We ascertain and give effect to the legislature’s
intent as expressed in the language of the statute, considering the specific statutory language at
issue and the TCPA as a whole, and we construe the statute’s words “‘according to their plain
and common meaning, unless a contrary intention is apparent from the context or unless such a
16 construction leads to absurd results.’” Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018)
(quoting City of Rockwall v. Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008)). At least one court
has determined that real property is not a “good” under the TCPA. See Schmidt v. Crawford,
584 S.W.3d 640, 649 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (“We disagree that the
plain, common meaning of ‘good’ is broad enough to embrace real property.”). Another
concluded that mineral lessees failed to meet their burden to prove the commercial-speech
exemption’s applicability, noting that they cited “no authority supporting that unsevered mineral
interests are either goods or services.” Howard v. Matterhorn Energy, LLC, 628 S.W.3d 319,
332 n.5 (Tex. App.—Texarkana 2021, no pet.).
In rejecting an argument that real property was a “good” under the TCPA, the
Schmidt court said:
We disagree that the plain, common meaning of “good” is broad enough to embrace real property. “Goods” ordinarily refer to tangible or moveable personal property, as opposed to realty. See Goods, New Oxford American Dictionary (3d ed. 2010) (defining term as “merchandise or possessions”); Goods, Black’s Law Dictionary (11th ed. 2019) (defining term to include tangible or moveable personal property other than money, particularly merchandise, and referring to “goods and services” as an illustration of the term's ordinary usage); see also Realty, Black’s Law Dictionary (11th ed. 2019) (defining “realty” or “real property” as “land and anything growing on, attached to, or erected on it”).
Schmidt, 584 S.W.3d at 649. The court went on to acknowledge that the legislature has included
real property in the definition of “goods” in the business and commerce code. See Tex. Bus. &
Com. Code § 17.45(1). “But the Deceptive Trade Practices Act is an instance in which the
Legislature intentionally and explicitly defined ‘goods’ beyond its ordinary usage.” Schmidt,
584 S.W.3d at 649. We likewise disagree that the plain and common meaning of “goods”
includes real property. And, assuming the commercial-speech exemption can apply to FAE as a
17 lessee, we decline to construe the consideration promised by FAE in exchange for leasing
mineral rights as an indication that FAE is primarily engaged in the business of selling or leasing
goods or services. The record reflects that FAE is primarily engaged in the business of securing
rights to develop oil, gas, or minerals prospects. Because we determine that Trivista has not met
its burden to show that FAE was primarily engaged in the business of selling or leasing goods or
services, we conclude that Trivista has not shown that the commercial-speech exemption applies.
Trivista presents no argument on appeal regarding the establishment of a prima facie case for
each essential element of its claims. We accordingly affirm the trial court’s dismissal of
Trivista’s claims with prejudice.
Attorney’s Fees
In its cross-issue on appeal, FAE asks this Court to remand the case to the trial
court to allow FAE to present evidence of the amount of attorney’s fees incurred in defending
against Trivista’s legal action. See Tex. Civ. Prac. & Rem. Code § 27.009 (a)(1). FAE asserts
the trial court erred in awarding fees without first allowing FAE an opportunity to present
evidence of its reasonable fees and costs. FAE explains that it expected to have been afforded
such an opportunity after the trial court issued its ruling on the TCPA motion. While it is true
that FAE did not present evidence of attorney’s fees at the hearing on its TCPA motion, FAE
was not precluded from doing so. And after the trial court issued its order granting FAE’s
motion, including an award of attorney’s fees, costs, and sanctions, FAE timely filed a motion to
modify the judgment to which it attached evidence supporting its claim for increased attorney’s
fees and sanctions. This motion was not set for a hearing before the trial court’s plenary power
18 expired, and the trial court did not rule on it. FAE asserts that this motion to modify nonetheless
preserved error and provides just cause for reversal.
Unless a party seeking to alter a trial court’s judgment files its own notice of
appeal, we may not grant the party more favorable relief than did the trial court except for
just cause. Tex. R. App. P. 25.1(c); see also Brooks v. Northglen Ass’n, 141 S.W.3d 158, 171
(Tex. 2004) (citing Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc.,
999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] 1999, no pet.)); Cities of Allen v. Railroad
Comm’n, 309 S.W.3d 563, 576 (Tex. App.—Austin 2010) (holding appellees’ cross-issue was
not properly before court because no notice of appeal was filed and appellees sought holding that
trial court erred in issuing conclusion of law that was not merely an alternative basis for
affirming judgment, but a ground for reversing trial court), aff’d in part, rev’d on other grounds
sub nom. Atmos Energy Corp. v. Cities of Allen, 353 S.W.3d 156 (Tex. 2011). In this instance,
FAE did file a separate notice of appeal on January 31, 2025, more than 105 days after the order
of dismissal was signed, and more than fourteen days after Trivista filed its notice of appeal.
See Tex. R. App. P. 26.1(d) (stating that if party timely files notice of appeal, another party may
file notice of appeal “within the applicable period stated above or 14 days after the first
filed notice of appeal, whichever is later”). As we explained in our previous memorandum
opinion dismissing FAE’s appeal for lack of jurisdiction, that notice of appeal was untimely.
Fort Apache Energy, Inc. v. Trivista Oil Co., No. 03-25-00068-CV, 2025 WL 626591, at *1
& n.1 (Tex. App.—Austin Feb. 27, 2025, no pet.) (mem. op.). On this record, we cannot
conclude that just cause exists to remand the attorney’s fees issue to the trial court. Accordingly,
we overrule FAE’s cross-issue.
19 CONCLUSION
Having overruled the parties’ issues on appeal, we affirm the trial court’s order.
__________________________________________ Rosa Lopez Theofanis, Justice
Before Justices Triana, Kelly, and Theofanis
Affirmed
Filed: December 12, 2025