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Gensetix, Inc. v. Baylor College of Medicine, Diakonos Research, Ltd., and William K. Decker ( 2020 )


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  • Affirmed and Plurality, Concurring, and Dissenting Opinions filed December
    31, 2020.
    In The
    Fourteenth Court of Appeals
    NO. 14-19-00488-CV
    GENSETIX, INC., Appellant
    V.
    BAYLOR COLLEGE OF MEDICINE, DIAKONOS RESEARCH, LTD.,
    AND WILLIAM K. DECKER, Appellees
    On Appeal from the 129th District Court
    Harris County, Texas
    Trial Court Cause No. 2019-02003
    PLURALITY OPINION
    Appellant Gensetix, Inc. appeals from the trial court’s order dismissing its
    claims against appellees Baylor College of Medicine (“BCM”), Diakonos Research,
    Ltd., and William K. Decker (collectively “the Decker Parties”). The trial court
    dismissed Gensetix’s claims pursuant to the Texas Citizens Participation Act
    (“TCPA”). See 
    Tex. Civ. Prac. & Rem. Code Ann. § 27.001
    , et. seq. In three issues
    on appeal Gensetix argues (1) the TCPA does not apply to its claims; (2) if the TCPA
    applies Gensetix established by clear and specific evidence a prima facie case for
    each element of the claims in question; and (3) the TCPA is unconstitutional. We
    conclude that the TCPA applies to Gensetix’s claims and that Gensetix failed to
    establish by clear and specific evidence a prima facie case for each element of its
    claims. We further conclude that the fee-shifting provisions of the TCPA do not
    violate the Texas Constitution or the First and Fourteenth Amendments to the United
    States Constitution. We affirm the trial court’s dismissal of Gensetix’s claims.
    BACKGROUND
    Plaintiff Gensetix alleged that Defendant Dr. William Decker invented
    methods of modifying patients’ immune systems to kill cancer cells during Decker’s
    employment at The University of Texas MD Anderson Cancer Center (“UT”). UT
    retained title to the patents as Decker’s employer. According to Gensetix’s original
    petition, the live pleading at the time of dismissal, UT granted Alex Mirrow, a non-
    party to this litigation, an exclusive license to commercialize the patented method
    invented by Decker. Mirrow subsequently assigned his rights in the licensed method
    to Gensetix. The parties referred to this assignment of rights as the “UT-Gensetix
    License.”
    Gensetix alleged that although Decker left UT and retained no rights in the
    patents, he continued to practice the patented technology at BCM. Gensetix alleged
    that it contacted Decker and BCM seeking to assert its patent rights and to acquire
    any intellectual property rights Decker and BCM claimed to own based on
    improvements or new discoveries from their use of the patented methods. Gensetix
    alleged that BCM was receptive to the idea of assigning these rights; accordingly,
    Gensetix sought financial backing from Fannin Innovation.
    BCM eventually assigned rights for any developments allegedly based on the
    patented methods to Diakonos. Diakonos offered to sublicense the patents from
    2
    Gensetix, but Gensetix declined.
    I.    Gensetix’s Claims
    Gensetix filed the present suit naming Decker, Diakonos, and BCM as
    defendants and asserting the following claims against Decker:
    Breach of contract–non-disclosure agreement. Gensetix alleged that it
    entered into a non-disclosure agreement with Decker, which, according to
    Gensetix’s pleading, prevented Decker from disclosing any Gensetix confidential
    information to third parties. Gensetix alleged that Decker disclosed confidential
    information to Dan Faust of Diakonos and that Faust used the confidential
    information to negotiate with BCM for rights to intellectual property arising from
    Decker’s lab at BCM. Gensetix alleged that it suffered harm from Decker’s action
    because Diakonos was “developing commercial treatments for the benefit of
    Diakonos, Decker, and BCM instead of for the benefit of Gensetix and UT.”
    Gensetix further alleged it suffered damages “in the form of additional out-of-pocket
    costs, lost intellectual property licenses, lost revenue, and lost goodwill.”
    Breach of contract–cooperation agreement. Gensetix alleged that it, as part
    of a “handshake agreement,” paid Decker in exchange for Decker’s promise to
    “commercialize the technology on behalf of Gensetix.” Gensetix alleged that
    Decker’s breach caused it significant harm because it could not reap the benefits of
    the “UT-Gensetix License.”
    Promissory Estoppel. Gensetix alleged that in reliance on the “handshake
    agreement” Gensetix paid Decker to “develop a commercial product and ‘refrain []
    from any activities that might not be in [Gensetix’s] best interests[.]’” As damages
    Gensetix alleged it suffered out-of-pocket expenses paid in reliance on Decker’s
    promises.
    3
    Tortious interference–Gensetix/BCM deal. Gensetix alleged that Decker
    interfered with Gensetix’s reasonable expectation of developing a business
    relationship with Fannin Innovation. Gensetix further alleged that Decker interfered
    with Gensetix’s ability to profit from Decker’s work at BCM. Gensetix alleged
    damages in the form of “out-of-pocket costs, lost revenue, and goodwill.”
    Gensetix asserted the following claims against Decker, Diakonos, and BCM:
    Tortious interference with UT-Gensetix License. Gensetix alleged it had a
    licensing agreement with UT to license Decker’s intellectual property and that BCM
    and Diakonos interfered with that prospective business relationship. Gensetix
    alleged damages in the form of “making it more expensive, burdensome, and
    difficult for Gensetix to perform its existing contract with UT[.]”
    Civil conspiracy. Gensetix alleged that Decker, Diakonos, and BCM
    conspired to interfere with Gensetix’s contract with UT.
    II.   Motions to Dismiss
    Decker, Diakonos, and BCM answered and filed motions to dismiss
    Gensetix’s claims under the TCPA, alleging that (1) Gensetix’s claims were based
    on, related to, or were in response to their exercise of the right to association,
    petition, or to free speech; and (2) Gensetix had not and could not establish by clear
    and specific evidence a prima facie case for each essential element of its claims.
    In Decker’s motion he alleged that Gensetix’s action implicated his right to
    free speech and right of association as defined by the TCPA. Decker argued that
    Gensetix’s central allegation was that Decker pursued commercialization of his
    inventions with Diakonos and BCM rather than Gensetix.
    In BCM’s motion it alleged that Gensetix’s action implicated its right to
    petition the United States Patent Office in addition to its right of association, and
    4
    right to free speech as defined by the TCPA. BCM further argued that Gensetix could
    not establish by clear and specific evidence a prima facie case of tortious interference
    because Gensetix had not pleaded any facts to support that BCM willfully and
    intentionally interfered with a contract or that any interference proximately caused
    Gensetix’s injuries. BCM further argued that Gensetix’s civil conspiracy claim
    failed for the same reasons. Diakonos joined both Decker and BCM’s motions.
    III.   Gensetix’s Response
    Gensetix responded to the motions to dismiss arguing that (1) no defendant
    had shown that Gensetix’s action implicated its rights to petition, association, or free
    speech under the TCPA; and (2) Gensetix had established a prima facie case for each
    of its claims. In support of its response Gensetix attached the declaration of Rita
    Mousa, manager of Gensetix.
    In Mousa’s declaration she averred that UT executed a license agreement with
    Mirrow granting Mirrow rights in certain patents involving cancer treatment arising
    from Decker’s research. Mirrow subsequently assigned those rights to Gensetix.
    Gensetix entered into negotiations with BCM about funding, licensing, and
    eventually bringing to market additional intellectual property largely based on
    Decker’s ongoing research. Mousa stated that, anticipating an agreement with BCM,
    Gensetix began discussions with outside entities with which it might partner for
    funding and investment in that development. One of the entities was Fannin
    Innovation. According to Mousa, Decker encouraged her to meet with Dan Faust of
    Diakonos and to consider Diakonos as a funding partner. Mousa learned that
    Diakonos had obtained a copy of the UT-Gensetix License, which was subject to
    strict confidentiality provisions. Fannin Innovation subsequently withdrew from
    consideration of the partnership with Gensetix, citing, according to Mousa, Decker’s
    unwillingness to enter into the partnership. Gensetix entered into a non-disclosure
    5
    and confidentiality agreement with Decker, a copy of which was attached to Mousa’s
    affidavit.
    According to Mousa, Decker agreed that he would cooperate with Gensetix in
    continuing to develop his research and “bring it to market” under the UT-Gensetix
    License as well as under any potential agreement that Gensetix made with BCM.
    Gensetix agreed to provide funding for such efforts in what “Decker referred to as a
    ‘handshake agreement.’” With regard to the “handshake agreement” with Decker,
    Mousa attached email exchanges between the two. In the first email from Decker to
    Mousa, Decker explained that he did not have control over BCM’s pursuit of patents
    or licensing agreements. In the second email, Mousa referred to an email allegedly
    sent by Decker with a subject line of “handshake agreement.” No email with the
    subject line, “handshake agreement” was attached to Gensetix’s response.
    Mousa also attached a copy of an email from BCM notifying her that BCM
    had decided to withdraw its interest in licensing Decker’s technologies to Gensetix.
    Mousa later learned that BCM had partnered with Diakonos to further develop and
    license Decker’s research.
    After a hearing, without stating its reasons, the trial court granted the motions
    to dismiss. After receiving evidence of attorneys’ fees, the trial court entered final
    judgments of dismissal and awarded attorneys’ fees to the Decker Parties. Gensetix
    appeals those judgments.
    ANALYSIS
    In three issues Gensetix argues (1) the trial court erred in determining that the
    TCPA applies to its claims; (2) the trial court erred in determining that Gensetix
    failed to establish by clear and specific evidence a prima facie case for each element
    of its claims; and (3) the fee-shifting provisions of the TCPA are unconstitutional
    6
    under both the United States and Texas Constitutions.
    I.     Standard of Review and Governing Law
    We consider whether the trial court properly dismissed Gensetix’s claims
    under the TCPA, which is codified in Chapter 27 of the Texas Civil Practice and
    Remedies Code. Tex. Civ. Prac. & Rem. Code §§ 27.001-.011.21 The TCPA is an
    anti-SLAPP law; “SLAPP” is an acronym for “Strategic Lawsuits Against Public
    Participation.” Fawcett v. Grosu, 
    498 S.W.3d 650
    , 654 (Tex. App.—Houston [14th
    Dist.] 2016, pet. denied) (op. on reh’g). The TCPA is intended “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, to protect the rights of a person to file meritorious lawsuits
    for demonstrable injury.” Tex. Civ. Prac. & Rem. Code § 27.002; Cox Media Grp.,
    LLC v. Joselevitz, 
    524 S.W.3d 850
    , 859 (Tex. App.—Houston [14th Dist.] 2017, no
    pet.). The TCPA “protects citizens from retaliatory lawsuits that seek to intimidate
    or silence them” from exercising their First Amendment freedoms and provides a
    procedure for the “expedited dismissal of such suits.” In re Lipsky, 
    460 S.W.3d 579
    ,
    586 (Tex. 2015). We construe the TCPA liberally to effectuate its purpose and intent
    fully. See Adams v. Starside Custom Builders, LLC, 
    547 S.W.3d 890
    , 894 (Tex.
    2018); ExxonMobil Pipeline Co. v. Coleman, 
    512 S.W.3d 895
    , 899 (Tex. 2017); Tex.
    Civ. Prac. & Rem. Code § 27.011(a).
    To further its stated goals, the TCPA establishes a mechanism for summary
    dismissal of lawsuits that unacceptably threaten the rights of free speech, the right
    to petition, or the right of association. See Lipsky, 460 S.W.3d at 589; Fawcett, 498
    1
    The Legislature recently amended the TCPA. Those amendments became effective
    September 1, 2019, and do not apply to this suit. In this opinion, all citations to the TCPA refer to
    the pre-amendment version that was in effect at the time Gensetix filed its suit.
    7
    S.W.3d at 655. A defendant invoking the TCPA’s protections must show first, by a
    preponderance of the evidence, that the plaintiff’s legal action is “based on, relates
    to, or is in response to” the defendant’s exercise of one or more of the enumerated
    rights. Lipsky, 460 S.W.3d at 586.
    We review the trial court’s denial of a TCPA motion to dismiss de novo.
    Joselevitz, 
    524 S.W.3d at 859
    . Under the de novo standard, we “make an
    independent determination and apply the same standard used by the trial court in the
    first instance.” 
    Id.
     (internal quotation omitted). The basis of a legal action is not
    determined by the defendant’s admissions or denials but by the plaintiff’s
    allegations. Hersh v. Tatum, 
    526 S.W.3d 462
    , 467 (Tex. 2017). When it is clear from
    the plaintiff’s pleadings that the action is covered by the TCPA, the defendant need
    show no more. Id.; see also O’Hern v. Mughrabi, 
    579 S.W.3d 594
    , 602 (Tex. App.—
    Houston [14th Dist.] 2019, no pet.).
    If the defendant makes the initial showing, 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. See Lipsky, 460 S.W.3d at 587. “Prima facie case” refers to
    the quantum of evidence required to satisfy the nonmovant’s minimum factual
    burden and generally refers to the amount of evidence that is sufficient as a matter
    of law to support a rational inference that an allegation of fact is true. See id. at 590;
    Deaver v. Desai, 
    483 S.W.3d 668
    , 675–76 (Tex. App.—Houston [14th Dist.] 2015,
    no pet.).
    While the TCPA imposes no elevated evidentiary standard, the evidence
    offered to support a prima facie case must be “clear and specific.” This requires
    “more than mere notice pleading.” Bedford v. Spassoff, 
    520 S.W.3d 901
    , 904 (Tex.
    2017) (per curiam). Clear and specific evidence means that the nonmovant must
    provide enough detail to show the factual basis for its claim. Bedford, 
    520 S.W.3d
                        8
    at 904. If the movant’s constitutional rights are implicated and the nonmovant has
    not met the required showing of a prima facie case, the trial court must dismiss the
    nonmovant’s claim. Tex. Civ. Prac. & Rem. Code § 27.005. The items the trial court
    shall consider in determining whether a legal action should be dismissed under the
    TCPA expressly include “the pleadings and supporting and opposing affidavits
    stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem.
    Code § 27.006(a).
    II.    Applicability of TCPA
    Our first inquiry is whether the Decker Parties showed by a preponderance of
    the evidence that the TCPA applies to Gensetix’s claims. A party moving for
    dismissal under the TCPA bears the initial burden to show by a preponderance of
    the evidence that the legal action against them is “based on, relates to, or is in
    response to” the exercise of either: (1) the right to free speech; (2) the right to
    petition; or (3) the right of association. Tex. Civ. Prac. & Rem. Code §§ 27.003(a),
    27.005(b); see S & S Emergency Training Sols., Inc. v. Elliott, 
    564 S.W.3d 843
    , 847
    (Tex. 2018).
    The TCPA defines both the right of free speech and the right of association as
    involving communications. Tex. Civ. Prac. & Rem. Code § 27.001(2)–(3). Under
    the TCPA, a “communication between individuals who join together to collectively
    express, promote, pursue, or defend common interests” constitutes an exercise of the
    right of association. Id. § 27.001(2). A communication includes “the making or
    submitting of a statement or document in any form or medium, including oral, visual,
    written, audiovisual, or electronic.” Id. § 27.001(1).
    III.   Free Speech
    Gensetix argues that its pleadings do not implicate the right of free speech
    9
    because (1) their communications were made in connection with a private business
    dispute, which is not a matter of public concern; and (2) Gensetix’s claims are not
    predicated solely on communications.
    A.     Gensetix’s claims relate to communications as defined by the
    TCPA.
    The TCPA provides its own definition of “exercise of the right of free speech.”
    The statutory definition is not fully coextensive with the constitutional free-speech
    right protected by the First Amendment to the United States Constitution and article
    I, section 8 of the Texas Constitution. Adams, 547 S.W.3d at 892. The TCPA defines
    the exercise of free speech as “a communication made in connection with a matter
    of public concern.” Tex. Civ. Prac. & Rem. Code § 27.001(3). A “‘[c]ommunication’
    includes the making or submitting of a statement or document in any form or
    medium, including oral, visual, written, audiovisual, or electronic.” Tex. Civ. Prac.
    & Rem. Code § 27.001(1). “The plain language of the statute imposes no
    requirement that the form of the communication be public.” Lippincott v.
    Whisenhunt, 
    462 S.W.3d 507
    , 509 (Tex. 2015)
    Turning to Gensetix’s allegations in its live pleading, Gensetix sued the
    Decker Parties contending that Decker breached contracts with Gensetix and
    tortiously interfered with prospective business relationships. Gensetix further
    alleged that all three defendants tortiously interfered with contracts that Gensetix
    had formed with UT. Gensetix alleged that Decker thwarted its “deals” with BCM
    and Fannin by approaching BCM and making “statements that disparaged Gensetix
    and/or discouraged BCM from concluding their agreements with Gensetix.” (CR 10)
    Gensetix further alleged that Decker violated a nondisclosure agreement by
    communicating with BCM and Diakonos. As to all three defendants Gensetix
    alleged that they agreed amongst themselves to willfully and intentionally interfere
    10
    with Gensetix’s contract with UT.
    At the factual core of Gensetix’s claims are communications amongst the
    Decker Parties to the exclusion of Gensetix. Gensetix alleged that the Decker Parties
    “communicated about and agreed to” interfere with Gensetix’s existing contract with
    UT. In asserting its breach-of-contract claims against Decker, Gensetix claimed that
    Decker “disclosed Gensetix’s confidential information.” Therefore, the factor of a
    communication has been met. See, e.g., Abatecola v. 2 Savages Concrete Pumping,
    LLC, No. 14-17-00678-CV, 
    2018 WL 3118601
    , at *8 (Tex. App.—Houston [14th
    Dist.] June 26, 2018, pet. denied) (mem. op.) (holding that a tortious interference
    claim “would necessarily have required communications or ‘the making or
    submitting of a statement or document in any form or medium, including oral, visual,
    written, audiovisual, or electronic.’”).
    B.     Gensetix’s claims against the Decker Parties are related to their
    right to free speech as matters of public concern.
    Gensetix further argues that its claims do not implicate the Decker Parties’
    rights to free speech because their communications do not involve matters of public
    concern as defined by the TCPA. A “matter of public concern” includes an issue
    related to, inter alia, “health or safety” or “a good, product, or service in the
    marketplace.” Tex. Civ. Prac. & Rem. Code § 27.001(7). The TCPA does not require
    that the statements specifically mention any of the listed matters of public concern,
    nor does it require more than a tangential relationship to same; rather, the TCPA
    applies so long as the movant’s statements are “in connection with” “issue[s] related
    to” any of the matters of public concern listed in the statute. ExxonMobil Pipeline
    Co., 512 S.W.3d at 900. Private communications made in connection with a matter
    of public concern fall within the TCPA’s definition of the exercise of the right of
    free speech under the TCPA. Lippincott, 462 S.W.3d at 509.
    11
    To be protected, the TCPA does not require that the communication
    “specifically mention” the matter of public concern. ExxonMobil Pipeline, 512
    S.W.3d at 900. Indeed, “not every communication related somehow to one of the
    broad categories set out in section 27.001(7) always regards a matter of public
    concern.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 
    591 S.W.3d 127
    , 137
    (Tex. 2019). The communication must have “public relevance beyond the pecuniary
    interests of the private parties involved.” 
    Id. at 136
    . That is, the communication must
    refer “to matters ‘of political, social, or other concern to the community,’ as opposed
    to purely private matters.” 
    Id. at 135
     (quoting Brady v. Klentzman, 
    515 S.W.3d 878
    ,
    884 (Tex. 2017)). The communication must address a “a subject of legitimate news
    interest; that is, a subject of general interest and of value and concern to the public.”
    Brady, 515 S.W.3d at 884 (quoting Snyder v. Phelps, 
    562 U.S. 443
    , 453 (2011)).
    Gensetix’s claims are related to the Decker Parties’ communications about a
    matter of public concern, i.e., “a good, product, or service in the marketplace.” The
    Supreme Court of Texas has instructed, “Given the ‘in the marketplace’ modifier,
    the TCPA’s reference to ‘a good, product, or service’ does not swallow up every
    contract dispute arising from a communication about the contract. By referring to
    communications made in connection with goods, products, or services ‘in the
    marketplace,’ the definition confirms that the right of free speech involves
    communications connected to ‘a matter of public concern.’” Creative Oil, 591
    S.W.3d at 134. In Creative Oil, the court acknowledged that, in previous decisions,
    it had held that private communications can be covered by the TCPA. Id. (citing
    ExxonMobil Pipeline, 
    512 S.W.3d 895
    , and Lippincott, 
    462 S.W.3d 507
    ). However,
    the court distinguished those cases, noting that they “involved environmental, health,
    or safety concerns that had public relevance beyond the pecuniary interests of the
    private parties involved,” whereas the case before it did not. 
    Id.
    12
    Here, the dispute between the parties is not simply a private contract dispute
    affecting only the fortunes of the private parties involved. At the heart of the dispute
    is Decker’s medical research, which is a “subject of general interest and of value and
    concern to the public.” Brady, 515 S.W.3d at 884. The subject matter of the dispute
    removes this from a matter only affecting the fortunes of the parties involved and
    squarely places it in the realm of a good, product, or service in the marketplace. See
    ExxonMobil Pipeline, 
    512 S.W.3d at 901
     (statements, although private among
    employees, related to a matter of public concern because they concerned a process
    related to the potential environmental, health, safety, and economic risks associated
    with noxious and flammable chemicals overfilling and spilling onto the ground);
    Lippincott, 462 S.W.3d at 510 (emails related to whether nurse anesthetist properly
    provided medical services to patients were matters of public concern); Baumgart v.
    Archer, 
    581 S.W.3d 819
    , 825–26 (Tex. App.—Houston [1st Dist.] 2019, pet. denied)
    (holding that news report in television broadcast and web article allegedly implying
    former peace officer’s guilt of murder of deputy constable related to “health or
    safety” and were thus protected under TCPA).
    Citing Brugger v. Swinford, No. 14-16-00069-CV; 
    2016 WL 4444036
     at*3
    (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.), Gensetix
    argues that the Decker Parties’ communications were private communications made
    in connection with a business dispute and, therefore, not a matter of public concern
    under the TCPA. In Brugger, this court held that a lawyer’s allegedly defamatory
    statements to shareholders about a corporate officer were made in course of a dispute
    between the shareholders and corporation, and were not communications in
    connection with a matter of public concern. 
    Id.
     That case is distinguishable on its
    facts in that the communications in Brugger were restricted to a private business
    dispute.
    13
    The Supreme Court of Texas warned in Creative Oil, that “A private contract
    dispute affecting only the fortunes of the private parties involved is simply not a
    ‘matter of public concern’ under any tenable understanding of those words.” 591
    S.W.3d at 137. The contract disputes at issue here do not involve a simple business
    dispute and do not simply affect “only the fortunes” of the Decker Parties. Decker’s
    cancer research and BCM and Diakonos’s ability to bring that research to the public
    affect the health of the community at large. If Decker’s research proves fruitful, the
    Decker Parties stand to benefit; however, the public at large also stands to benefit
    with the addition of another weapon in the battle against cancer. As such, the Decker
    Parties’ communications related to a matter of public concern and, thus, are speech
    protected by the TCPA.2
    Accordingly, we overrule Gensetix’s first issue asserting that the TCPA does
    not apply to its claims. We conclude that the Decker Parties made the initial showing
    required under the TCPA and the burden then shifted to Gensetix to establish a prima
    facie case for its claims of breach of contract, tortious interference, and civil
    conspiracy.
    III.   Prima facie case
    If the movants on a TCPA motion to dismiss show that the TCPA applies, the
    burden shifts to the nonmovants to establish by clear and specific evidence a prima
    2
    The legislature amended the definition of “matter of public concern” and narrowed the
    phrase’s scope to include, “(A) a public official, public figure, or other person who has drawn
    substantial public attention due to the person's official acts, fame, notoriety, or celebrity; (B) a
    matter of political, social, or other interest to the community; or (C) a subject of concern to the
    public.” Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 1, 
    2019 Tex. Gen. Laws 684
    , 684.
    However, the amendment expressly provides that this change in law applies only to a legal action
    filed on or after the September 1, 2019, the effective date of the amendment. See Act of June 2,
    2019, 86th Leg., R.S., ch. 378, § 11, 
    2019 Tex. Gen. Laws 684
    , 687. Our conclusion is limited to
    the pre-amended version of the statute.
    14
    facie case for each essential element of the claim in question to avoid dismissal. Tex.
    Civ. Prac. & Rem. Code § 27.005(c). The Supreme Court of Texas has noted that
    “[c]lear and specific evidence is not a recognized evidentiary standard[,]” and
    “[a]lthough it sounds similar to clear and convincing evidence, the phrases are not
    legally synonymous.” Lipsky, 460 S.W.3d at 589.
    We will first address what “evidence” we may consider when determining
    whether Gensetix met its burden to establish by clear and specific evidence a prima
    facie case for each essential element of its claims. Gensetix argues that we may
    consider its unverified pleadings in determining whether it has met its burden under
    the TCPA. The Decker Parties respond with the long-standing maxim that pleadings
    are not competent evidence, even if sworn or verified. See Laidlaw Waste Sys.
    (Dallas), Inc. v. City of Wilmer, 
    904 S.W.2d 656
    , 660 (Tex. 1995); Hidalgo v. Surety
    Sav. & Loan Ass’n, 
    462 S.W.2d 540
    , 545 (Tex. 1971).
    Gensetix argues that it met its burden under the TCPA through the allegations
    in its petition and the declaration of Mousa attached to its response to the motions to
    dismiss. Under the TCPA, however, general allegations that merely recite the
    elements of a claim will not suffice; rather, “a plaintiff must provide enough detail
    to show the factual basis for its claim.” Lipsky, 460 S.W.3d at 590–91. “Prima facie
    evidence” is that “minimum quantum of evidence necessary to support a rational
    inference that the allegation of fact is true.” Id. at 590 (internal quotations omitted).
    Conclusory statements are not probative and accordingly will not suffice to
    establish a prima facie case. In re E.I. DuPont de Nemours & Co., 
    136 S.W.3d 218
    ,
    223–24 (Tex.2004). In other words, “bare, baseless opinions” are not “a sufficient
    substitute for the clear and specific evidence required to establish a prima facie case”
    under the TCPA. Lipsky, 460 S.W.3d at 592. Based on section 27.006(a)’s directive
    (“the court shall consider the pleading and supporting and opposing affidavits”) and
    15
    the Texas Supreme Court’s interpretation that “pleadings and evidence” setting forth
    the factual basis for a claim are sufficient to resist a TCPA motion to dismiss, this
    court has held that a nonmovant under the TCPA was permitted to rely on his
    pleadings in addition to the attachments to the pleadings in response to a motion to
    dismiss. See Fawcett, 498 S.W.3d at 660.
    We do not read this court’s direction in Fawcett, to mean that pleadings in the
    context of the TCPA are to be considered on their own as evidence. In that case,
    unlike here, the nonmovant had attached evidence to his pleadings. Id. We are further
    unpersuaded by the authority cited by Gensetix for the proposition that they need not
    present evidence in response to a TCPA motion to dismiss. Gensetix first cites a
    Third Court of Appeals decision in an original proceeding in which the Third Court
    stated, “the Act does not require a movant to present testimony or other evidence to
    satisfy his evidentiary burden.” In re Elliott, 
    504 S.W.3d 455
    , 462 (Tex. App.—
    Austin 2016, no pet.). In coming to that conclusion the Third Court cited section
    27.006 of the TCPA, which relates to the proof the movant is required to produce to
    determine whether a legal action is subject to the TCPA. Id.; see also Tex. Civ. Prac.
    & Rem. Code § 27.006(a). In this case, Gensetix is the nonmovant to which the
    burden has shifted to establish a prima facie case. The decision in Elliott, therefore,
    does not apply to Gensetix’s burden.
    Gensetix also cites Gaskamp v. WSP USA, Inc., No. 01-18-00079-CV, 
    2018 WL 6695810
     at *7 (Tex. App.—Houston [1st Dist.] Dec. 20,2018, no pet.) for the
    proposition that “while Section 27.006 contemplates that the movant and the non-
    movant may offer affidavits and, if permitted, other evidence obtained through
    discovery, nothing in the TCPA requires either party to offer evidence beyond the
    pleadings.” Since the parties filed their briefs in this appeal, the court withdrew that
    opinion and issued Gaskamp v. WSP USA, Inc., 
    596 S.W.3d 457
     (Tex. App.—
    16
    Houston [1st Dist.] 2020, pet. filed), superseding the withdrawn opinion. In the 2020
    Gaskamp opinion, the court held that the TCPA did not apply to the nonmovant’s
    claims and that, consistent with the court in Elliott, and the plain language of the
    statute, when determining whether the movant has met its burden under the TCPA
    the movant may rely on the pleadings alone. 
    Id. at 482
    .
    This court recently addressed the issue of whether a nonmovant in attempting
    to defeat a TCPA motion could rely on the allegations in his pleadings alone. See
    Buzbee v. Clear Channel Outdoor, No. 14-19-00512-CV; 
    2020 WL 6738021
     (Tex.
    App.—Houston [14th Dist.] November 17, 2020, no pet. h.). Quoting Lipsky, 460
    S.W.3d at 590, we held, “Once the court is satisfied that the Act applies, and the
    burden shifts to the non-movant, the TCPA requires something beyond allegations
    in the pleading “to support a rational inference that an allegation is true.” Buzbee,
    
    2020 WL 6738021
     at *10.
    We therefore reject Gensetix’s proposition that a nonmovant can rely on the
    allegations in the pleadings alone as prima facie evidence of its claims. Gensetix, as
    the nonmovant, must produce “clear and specific evidence” to establish a prima facie
    case of each of its claims; it cannot rely on its pleadings alone. In considering
    whether Gensetix met its burden we review not only Gensetix’s pleadings but the
    evidence attached to its response to the motion to dismiss.
    A.     Gensetix did not produce clear and specific evidence of damages in
    connection with its claims against Decker.
    The statute does not define “clear and specific evidence,” but the Texas
    Supreme Court has interpreted the phrase to impose more than “mere notice
    pleading” and that “minimum quantum of evidence necessary to support a rational
    inference that the allegation of fact is true.” Lipsky, 460 S.W.3d at 590–91.We
    review both the pleadings and evidence attached to Gensetix’s motion to dismiss to
    17
    determine whether Gensetix has provided “enough detail to show the factual basis
    for its claim.” Id.
    Gensetix asserted claims against Decker for breach of contract, promissory
    estoppel, and tortious interference with a potential business relationship. Damages
    is a required element of each of Gensetix’s claims. See West v. Triple B. Servs., LLP,
    
    264 S.W.3d 440
    , 446 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (to recover
    on a breach-of-contract claim, plaintiff must have sustained damages as a result of
    the defendant’s breach); Wheeler v. White, 
    398 S.W.2d 93
    , 97 (Tex. 1965) (“Where
    the promisee has failed to bind the promisor to a legally sufficient contract, but where
    the promisee has acted in reliance upon a promise to his detriment, the promisee is
    to be allowed to recover no more than reliance damages measured by the detriment
    sustained.”); Baty v. ProTech Ins. Agency, 
    63 S.W.3d 841
    , 860 (Tex. App.—
    Houston [14th Dist.] 2001, pet. denied) (to prevail on claim for tortious interference
    with a prospective business relationship, the plaintiff must show it suffered actual
    harm or damages as a result of the defendant’s interference).
    To recover on a breach-of-contract claim, the plaintiff must show that it
    sustained damages as a result of the defendant’s breach. West, 
    264 S.W.3d at 446
    .
    The goal in measuring damages for a breach-of-contract claim is to provide just
    compensation for any loss or damage actually sustained as a result of the breach.
    Parkway Dental Assocs., PA v. Ho & Huang Props., LP, 
    391 S.W.3d 596
    , 607 (Tex.
    App.—Houston [14th Dist.] 2012, no pet.). The normal measure of damages for a
    breach-of-contract claim is the expectancy or benefit-of-the-bargain measure. 
    Id.
    The purpose of this measure of damages is to restore the injured party to the
    economic position it would have occupied had the contract been performed. 
    Id.
    The basic measure of actual damages for tortious interference with contract is
    the same as the measure of damages for breach of the contract with which the
    18
    defendant allegedly interfered, to put the plaintiff in the same economic position he
    would have been in had that contract actually been performed. See Am. Nat’l
    Petroleum Co. v. Transcon. Gas Pipe Line Corp., 
    798 S.W.2d 274
    , 278 (Tex. 1990).
    The same is true for tortious interference with prospective business relationships.
    Baty, 
    63 S.W.3d at 860
     (Damages for a claim of tortious interference with
    prospective business relationships include actual harm as a result of the defendant’s
    interference).
    Damages for promissory estoppel are “not measured by the profits that such
    party’s reliance led him to expect, but instead are limited to the amount necessary to
    compensate that party for a loss already suffered.” Allied Vista, Inc. v. Holt, 
    987 S.W.2d 138
    , 142 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (quoting Sun
    Oil Co. v. Madeley, 
    626 S.W.2d 726
    , 734 (Tex. 1981)).
    Gensetix alleged that Decker breached a non-disclosure agreement and a
    “handshake” cooperation agreement. Gensetix alleged its damages consisted of “out-
    of-pocket costs, lost intellectual property licenses, lost revenue, and lost goodwill.”
    In Mousa’s declaration she alleged that Decker’s alleged breach and interference
    “rendered Gensetix’s performance of its obligations under the UT License
    Agreement more expensive, burdensome, and difficult—particularly Gensetix’s
    obligations regarding commercialization and clinical trial progress.”
    As to the promissory estoppel claim, Gensetix alleged that it suffered out-of-
    pocket expenses paid in reliance on Decker’s promises. As damages for alleged
    tortious interference with a prospective business claim, Gensetix alleged it suffered
    “out-of-pocket costs, lost revenue, and goodwill.”
    Generally, in alleging damages for Decker’s actions, Gensetix alleged in its
    pleading that Decker’s alleged interference with the Fannin Innovation relationship
    and the BCM relationship caused injury and damages:
    19
    • By undermining and delaying Gensetix’s ability to share costs,
    fund, and manage commercialization activities and clinical trials;
    • Gensetix had to spend additional time and money searching for
    other potential business partners once the Fannin Innovation deal
    did not go forward;
    • Gensetix was deprived of intellectual properly licenses and
    related revenue; and
    • Gensetix invested time and money in applying for and obtaining
    patents, legal fees for intellectual property analysis, and financial
    support directly to Decker and his lab.
    In its prayer for relief Gensetix sought “damages likely to exceed
    $1,000,000.” Gensetix appears to seek lost profits damages from Decker’s alleged
    breach of contract and the claims for promissory estoppel, and tortious interference
    with prospective business relationships. At a minimum, opinions or lost-profit
    estimates must be based on objective facts, figures, or data from which the lost-
    profits amount may be ascertained. Szczepanik v. First S. Trust Co., 
    883 S.W.2d 648
    ,
    649 (Tex. 1994).
    The term “prima facie case” “refers to evidence sufficient as a matter of law
    to establish a given fact if it is not rebutted or contradicted.” Lipsky, 460 S.W.3d at
    590. In Lipsky, the nonmovant presented evidence of damages in the form of an
    affidavit stating that the nonmovant suffered “direct pecuniary and economic losses
    and costs, lost profits, loss of its reputation, and loss of goodwill in the communities
    in which it operates . . . in excess of three million dollars.” Id. The supreme court
    held that the affidavit was conclusory and insufficient to satisfy the TCPA’s
    requirement of clear and specific evidence. Id. The court further held that general
    averment of economic losses and lost profits, without more, failed to satisfy the
    minimum requirements of the TCPA. Id. at 592–93.
    Here, Gensetix’s pleadings and Mousa’s declaration are less specific than the
    20
    evidence found insufficient in Lipsky. Opinions must be based on demonstrable facts
    and a reasoned basis. Id. at 593. Gensetix’s proof of damages consists of general
    descriptions of damages by Mousa and Gensetix’s unverified petition, which do not
    constitute clear and specific evidence of damages. Mousa’s declaration described
    that as a result of Decker’s alleged conduct, “Gensetix has lost the ability to share in
    the proceeds of bringing to market the treatments advanced by Decker” and that
    Decker “rendered Gensetix’s performance of its obligations under the UT License
    Agreement more expensive, burdensome, and difficult—particularly Gensetix’s
    obligations regarding commercialization and clinical trial progress.” Gensetix made
    no attempt to “quantify any measure of its purported damages” and there “is no clear
    and specific evidence of any injury.” See Toth v. Sears Home Improvement Products,
    Inc., 
    557 S.W.3d 142
    , 158 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
    Relying on Deuell v. Tex. Right to Life Comm., Inc., 
    508 S.W.3d 679
    , 689
    (Tex. App.—Houston [1st Dist.] 2016, pet. denied), Gensetix argues that it need only
    present evidence to support a rational inference as to the existence of damages, not
    their amount or constituent parts. In Deuell, the plaintiff sued State Senator Bob
    Deuell for tortious interference with a contract when the senator sent a cease-and-
    desist letter to radio stations resulting in the stations dropping the plaintiff’s
    advertisements. 
    Id. at 683
    . The plaintiff, in addressing damages to avoid dismissal
    under the TCPA, followed up general descriptions of loss with evidence that it “paid
    approximately $15,037 for the placement and airing of the new radio advertisements
    with CBS Radio Texas.” 
    Id. at 688
    . Our sister court held that the plaintiff provided
    “clear and specific evidence that Deuell’s act caused it actual damage or loss, in the
    form of costs to produce a new radio advertisement and to procure additional airtime
    to make up for time the original advertisement had been suspended.” 
    Id.
     The court
    continued that there was sufficient evidence the plaintiff “incurred specific costs to
    21
    replace the contracted-for advertising services.” 
    Id. at 689
    . The plaintiff in Deuell
    cited specific out-of-pocket costs incurred. Gensetix has not.
    While Gensetix need not prove all of its damages to satisfy the standard under
    the TCPA, it must provide evidence of some damages. Gensetix failed to present any
    evidence of the amount of lost revenue attributable to Decker’s alleged breach of
    contract or interference with Gensetix’s prospective business relationships, extra
    expenses incurred as a result of Decker’s granting a license to BCM and Diakonos,
    or the amount of out-of-pocket expense it incurred supporting Decker’s research in
    detrimental reliance on Decker’s promises.
    Gensetix’s pleadings and evidence with regard to damages are conclusory and
    not “clear and specific evidence” of any particularized harm. See Lipsky, 460 S.W.3d
    at 592–93 (general averment of economic losses and lost profits, without more,
    failed to satisfy the minimum requirements of the TCPA); Better Bus. Bureau of
    Metro. Houston, Inc. v. John Moore Servs., Inc., 
    441 S.W.3d 345
    , 355 (Tex. App.—
    Houston [1st Dist.] 2013, pet. denied) (conclusory statements will not suffice to
    establish prima facie case). At most, we have Gensetix’s conclusory allegations that
    it lost the ability to license Decker’s research, which was “still under development
    that could potentially proceed to trials that might one day result in a commercialized
    treatment for cancer.” A potential license for research under development that could
    potentially proceed to trials that one day might result in a commercialized treatment
    does not quantify any measure of Gensetix’s purported damages. Gensetix failed to
    present evidence sufficient as a matter of law to establish damages if it is not rebutted
    or contradicted. See Lipsky, 460 S.W.3d at 590. Because there is no clear and specific
    evidence of damages, we conclude that Gensetix did not establish a prima facie case
    of an essential element of its breach of contract, tortious interference, and promissory
    estoppel claims against Decker.
    22
    B.      Gensetix did not produce clear and specific evidence of damages in
    connection with its claims against the Decker Parties.
    Gensetix asserted claims against the Decker Parties for tortious interference
    with the UT-Gensetix License, and for civil conspiracy. Damages are a required
    element of each of Gensetix’s claims. See Prudential Ins. Co. of Am. v. Fin. Review
    Services, Inc., 
    29 S.W.3d 74
    , 77 (Tex. 2000) (to prevail on claim for tortious
    interference with a contract, the plaintiff must show it suffered actual harm or
    damages as a result of the defendants’ interference); Agar Corp., Inc. v. Electro
    Circuits Int’l, LLC, 
    580 S.W.3d 136
    , 142 (Tex. 2019) (civil conspiracy requires an
    underlying tort that has caused damages).
    As with Decker, Gensetix sought lost profits damages as compensation for
    BCM and Diakonos’s alleged tortious interference and conspiracy. Gensetix alleged
    in its pleadings that:
    • Gensetix has been unable to realize any value from its own
    commercialization of the licensed technology;
    • Gensetix was required to spend time and money to find
    additional funding and commercialization partners; and
    • Gensetix has invested substantial time and money in anticipation
    of commercialization, including money spent on applying for
    and obtaining patents, legal fees for intellectual property
    analysis, and financial support directly to Decker and his lab in
    anticipation of licensing and commercialization.
    As evidence of those damages, Gensetix points to the following two paragraphs of
    Mousa’s declaration:
    On June 1, 2015, I received an email from Brian Phillips at BCM
    notifying me that BCM was withdrawing from negotiations with
    Gensetix to license Decker’s technology and partner with BCM.
    Attached as Exhibit G is a true and correct copy of the text of that email
    as I forwarded it to a third party. As a result, Gensetix has lost the ability
    to share in the proceeds of bringing to market the treatments advanced
    23
    by Decker.
    The actions of Decker, Diakonos, and BCM, as described both above
    and in Gensetix’s Petition in this lawsuit have rendered Gensetix’s
    performance of its obligations under the UT License Agreement more
    expensive, burdensome, and difficult—particularly Gensetix’s
    obligations regarding commercialization and clinical trial progress.
    As with its allegations against Decker, Gensetix’s general averments of
    economic loss are insufficient proof of damages under the TCPA. Gensetix does not
    offer clear and specific evidence of damages by failing to specify how its attempts
    at commercializing the UT-Licensed Technology have become “much more
    expensive, burdensome, and difficult”; what “time and money” Gensetix has spent
    “to find additional funding and commercialization partners other than Fannin
    Innovation”; or how and to what extent not having a license to Decker and BCM’s
    patents “decreased the value of any deal that Gensetix can offer potential funding
    and commercialization partners” under the UT License. See Bedford, 520 S.W.3d at
    906 (“‘[G]eneral averments of direct economic losses and lost profits’ do not satisfy
    the Act’s clear-and-specific-evidence standard without ‘specific facts illustrating
    how [a defendant’s] alleged remarks about [a plaintiff’s] activities actually caused
    such losses.’” (quoting Lipsky, 460 S.W.3d at 592–93)).
    Gensetix did not identify any efforts to commercialize the UT Patents or
    initiate clinical trials that were frustrated or delayed, but rather asked the trial court
    to assume that any potential efforts to do so would be more burdensome, which does
    not meet the “clear and specific evidence” standard. As with its allegations of harm
    against Decker, Gensetix provided no objective facts, figures, or data to support its
    claim for lost profits. Because there is no clear and specific evidence of damages,
    we conclude that Gensetix did not establish a prima facie case of an essential element
    of its tortious interference and civil conspiracy claims against the Decker Parties.
    24
    Accordingly, we overrule Gensetix’s second issue arguing the trial court erred
    in determining it failed to set forth a prima facie case for its claims under the TCPA.
    IV.    Constitutionality of the TCPA
    In its third issue Gensetix argues that the mandatory fee-shifting provision of
    the TCPA violates the open-courts provision of the Texas Constitution and the First
    and Fourteenth Amendments to the United States Constitution. The open-courts
    provision of the Texas Constitution states, “All courts shall be open, and every
    person for an injury done him, in his lands, goods, person or reputation, shall have
    remedy by due course of law.” Tex. Const. art. V, § 13. The First Amendment right
    to petition government for redress of grievances encompasses a right of access to the
    courts. See Bill Johnson’s Rests., Inc. v. National Lab. Rel. Bd., 
    461 U.S. 731
    , 741
    (1983).
    In the trial court, after the court granted the Defendants’ motions to dismiss,
    but before the court awarded attorneys’ fees and assessed sanctions, Gensetix filed
    a response to BCM’s application for attorneys’ fees and sanctions. In that response
    Gensetix argued that the TCPA’s mandatory fee provision was unconstitutional in
    violation of the open-courts provision of the Texas Constitution and the First and
    Fourteenth Amendments to the United States Constitution.3 At trial and on appeal
    Gensetix combines its arguments under the Texas and United States Constitutions.
    We, too, will review them together.
    We begin our analysis with the presumption that a statute is constitutional.
    Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 
    925 S.W.2d 659
    , 662 (Tex. 1996).
    3
    The Decker Parties initially argue that Gensetix failed to preserve this issue for review in
    the trial court. Because Gensetix raised the constitutionality issue in the trial court and obtained an
    implicit ruling from the trial court when the court signed the fee orders, we hold that error was
    preserved. See Tex. R. App. P. 33.1.
    25
    The party challenging a statute’s constitutionality bears the burden on that issue. See
    Edgewood Indep. Sch. Dist. v. Meno, 
    917 S.W.2d 717
    , 725 (Tex. 1995). Landry’s,
    Inc. v. Animal Legal Def. Fund, 
    566 S.W.3d 41
    , 67 (Tex. App.—Houston [14th
    Dist.] 2018, pet. granted). A party may argue that a statute is unconstitutional on its
    face or as applied to that party. See Tex. Workers’ Comp. Comm’n v. Garcia, 
    893 S.W.2d 504
    , 518 & n.16 (Tex. 1995). A statute is unconstitutional on its face only if
    every application of the statute violates the Constitution. See Nootsie, 925 S.W.2d at
    663. Because Gensetix does not expressly state whether it challenges the TCPA’s
    constitutionality on its face or as applied, we determine this based on the arguments
    presented.
    Gensetix argues that the TCPA “unreasonably restricts litigants’ access to the
    courts through the levying of punitive fees that make it extraordinarily difficult and
    risky for plaintiffs to bring suit.” From this argument, we determine that Gensetix is
    arguing that the statute is unconstitutional on its face in that Gensetix argues that
    every application of the statute violates the Constitution. See Garcia, 893 S.W.2d at
    518 (holding that under a facial challenge the challenging party contends that the
    statute, by its terms, always operates unconstitutionally). Gensetix argues that the
    mandatory “fee-shifting structure, combined with the high burden on the plaintiff to
    go forward with its case well before full discovery can be taken, creates a high
    disincentive to litigate even meritorious cases.”
    The open-courts provision of the Texas Constitution guarantees litigants the
    right to their day in court. Offenbach v. Stockton, 
    285 S.W.3d 517
    , 522 (Tex. App.—
    Dallas 2009), aff’d, 
    336 S.W.3d 610
     (Tex. 2011). But, it is not absolute. Rather, this
    requirement “‘guarantees that a common law remedy will not be unreasonably
    abridged.’” Tenet Hosp. Ltd. v. Rivera, 
    445 S.W.3d 698
    , 703 (Tex. 2014) (quoting
    Garcia, 893 S.W.2d at 521). That is, while a statute that totally forecloses judicial
    26
    review may violate the provision, one that merely presents hurdles to judicial review
    may withstand scrutiny. Offenbach, 
    285 S.W.3d at
    522–23. An open-courts
    challenge is a due process complaint which also “requires the party to use due
    diligence.” 
    Id.
     With this in mind, we turn to Gensetix’s constitutional challenge.
    The TCPA provides that upon dismissal of a legal action under the TCPA,
    “the court shall award to the moving party . . . court costs, reasonable attorney’s fees,
    and other expenses incurred in defending against the legal action as justice and
    equity may require” as well as “sanctions . . . as the court determines sufficient to
    deter the party who brought the legal action from bringing similar actions described
    in this chapter.” Tex. Civ. Prac. & Rem. Code § 27.009(a). To prevail on an open-
    courts challenge, Gensetix must show that a cognizable common-law claim is being
    restricted and that the restriction is unreasonable or arbitrary when balanced with the
    statute’s purpose and basis. See Mem’l Hermann Health Sys. v. Khalil, No. 01-16-
    00512-CV, 
    2017 WL 3389645
    , at *16 (Tex. App.—Houston [1st Dist.] Aug. 8,
    2017, pet. denied) (mem. op.) (holding TCPA’s fee-shifting provision does not
    violated the open-courts provision).
    We agree with our sister court that the fee-shifting provision does not violate
    the open-courts provision. 
    Id.,
     
    2017 WL 3389645
    , at *15–17. In Khalil, the court
    held that the fee-shifting provision of the TCPA did not act as a barrier to a party’s
    right to petition for redress. 
    Id.
     
    2017 WL 3389645
    , at *16. In coming to that
    conclusion, the court considered the TCPA’s express purpose to balance protections
    for persons exercising their constitutional rights of expression and association with
    protections for persons filing meritorious lawsuits for demonstrable injury. Tex. Civ.
    Prac. & Rem. Code § 27.002.
    Gensetix argues, however, that the court in Khalil did not address “the open-
    court violation caused by the mandatory application of conditional appellate fees
    27
    upon dismissal of a TCPA action.” We find the court’s reasoning in Khalil applies
    equally to the award of conditional appellate fees. In Khalil, our sister court noted
    that the TCPA has provisions in place to limit the impact of the fee-shifting
    provision. Khalil, 
    2017 WL 3389645
     at *16. Notably, the attorney’s fees, even
    conditional appellate fees, are not imposed on parties who meet the burden placed
    on them under the TCPA, of establishing by “clear and specific evidence” the
    elements of their prima facie case to avoid dismissal. Id.; see also Tex. Civ. Prac. &
    Rem. Code § 27.005(c). The fee provision in the TCPA shifts litigation costs from
    the prevailing party to the party who failed to meet its burden. Khalil, 
    2017 WL 3389645
     at * 16.
    The same is true for conditional appellate fees. If a nonmovant in a TCPA
    action is successful on appeal those fees would be reversed along with the trial
    court’s dismissal order. A trial court may not penalize a party for taking a successful
    appeal. Keith v. Keith, 
    221 S.W.3d 156
    , 171 (Tex. App.—Houston [1st Dist.] 2006,
    no pet.). The TCPA does not contain any provision contrary to the general rule that
    because a party should not be penalized for successfully appealing an error occurring
    in a lower court, appellate attorney’s fees must be conditioned upon a successful
    appeal. See McGibney v. Rauhauser, 
    549 S.W.3d 816
    , 827 (Tex. App.—Fort Worth
    2018, pet. denied) (holding that TCPA appellate fee award must be conditional on
    successful appeal). Therefore, the TCPA’s conditional appellate fee awards do not
    create an impermissible pay-to-play barrier to the courts; the awards shift litigation
    costs after resolution of a claim. See Landry’s, 566 S.W.3d at 67; Khalil, 
    2017 WL 3389645
     at *16. We therefore overrule Gensetix’s third issue challenging the
    constitutionality of the fee-shifting provisions of the TCPA.
    28
    CONCLUSION
    Having overruled each of Gensetix’s issues on appeal we affirm the trial
    court’s dismissal of Gensetix’s claims.
    /s/     Jerry Zimmerer
    Justice
    Panel consists of Chief Justice Frost and Justices Zimmerer and Poissant (Frost, C.J.,
    concurring) (Poissant, J., dissenting).
    29