Gulf Coast Pros, LLC v. Monica Sweeney, Michael Sweeney, and Katie Sweeney-Scott

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.

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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.

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