Benajmin "B.J." Reynolds, Mark Mewshaw and Wes Hobbs and Terra Energy Partners LLC v. Sanchez Oil & Gas Corporation

Opinion issued December 15, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00940-CV
———————————
BENJAMIN “B.J.” REYNOLDS, MARK MEWSHAW, WES HOBBS, AND
TERRA ENERGY PARTNERS LLC, Appellants
V.
SANCHEZ OIL AND GAS CORPORATION, SANCHEZ ENERGY
CORPORATION, AND SANCHEZ PRODUCTION PARTNERS LP,
Appellees
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Case No. 2016-18909
OPINION
This is an interlocutory appeal of the denial of appellants’ amended motion to
dismiss under the Texas Citizens Participation Act (TCPA). See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 27.001–.011.1
Appellants, Benjamin “B.J.” Reynolds, Mark Mewshaw, and Wes Hobbs
(collectively, the individual appellants), and Terra Energy Partners LLC (Terra),
filed a joint amended motion to dismiss eight of nine counts asserted against them
in the second amended petition filed by appellees, Sanchez Oil and Gas Corporation
(Sanchez Oil), Sanchez Energy Corporation, and Sanchez Production Partners LP
(collectively, the Sanchez parties or Sanchez), which the trial court denied. In two
issues, appellants argue that the trial court erred in denying their amended motion to
dismiss because: (1) it was timely; and (2) the TCPA applies and bars eight of the
nine causes of action asserted in the Sanchez parties’ second amended petition. In a
third issue, appellants argue that the trial court abused its discretion by finding that
1
In 2019, the Texas Legislature amended several provisions of the TCPA, which
became effective on September 1, 2019, and apply to legal actions filed on or after
that date. Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 462 (Tex. App.—Houston
[1st Dist.] 2020, pet dism’d) (en banc) (citing Act of May 17, 2019, 86th Leg., R.S.,
ch. 378, §§ 1–9, 12, secs. 27.001, 27.003, 27.005–.007, 27.0075, 27.009–.010, Tex.
Sess. Law Serv. 684, 687). This suit was filed before September 1, 2019, and thus
it is governed by the statute as it existed before the amendments. See id. All citations
to the TCPA in this opinion are to the pre-amendment version of the TCPA. See id.
2
their amended TCPA motion was intended solely for delay and by awarding costs
and attorney’s fees to the Sanchez parties.2
We affirm.
Background
The Sanchez parties are affiliated entities engaged in the business of oil and
gas exploration and production, and they operate in Texas, the Gulf Coast, Mid-
Continent, and Rocky Mountain regions. Over the course of their forty-five years in
operation, the Sanchez parties have allegedly invested in and developed “a wide
array of valuable trade secret materials relating to the oil and gas industry” that
provide them with “extensive competitive advantages” in that industry. After three
of their employees—Reynolds, Mewshaw, and Hobbs—resigned and went to work
for start-up Terra, a competitor of Sanchez Oil, around the same time period as each
other, the Sanchez parties discovered that their trade secrets and other confidential
and proprietary information had been copied and taken.
2
Terra presented four issues, separating out the issue of the applicability of the TCPA
into two separate issues: whether the Sanchez parties provided sufficient evidence
of each element of their challenged claims and whether their claims are legally
barred. In their separately filed brief, the individual appellants presented five issues,
separating out the issue of the applicability of the TCPA into three issues: whether
the TCPA applies, whether appellants established defenses, and whether the
Sanchez parties provided sufficient evidence of each element of each challenged
claim. For the reasons we discuss below, we do not address appellants’ issues
regarding the applicability of the TCPA.
3
An internal investigation revealed that Reynolds, Mewshaw, and Hobbs had
copied this information onto hard drives and emailed it to themselves before going
to work for Terra, and the Sanchez parties later learned that Terra and the former
employees were using and disclosing this information, including in an acquisition of
another company that bore resemblances to acquisitions contemporaneously made
by the Sanchez parties. The Sanchez parties sent several letters to Terra, Reynolds,
Mewshaw, and Hobbs demanding the return of their files. Terra responded to one
letter refusing to admit or deny that Reynolds, Mewshaw, or Hobbs had taken the
Sanchez parties’ information and did not say whether Terra or the individuals, now
employees of Terra, had used or disclosed the information. After the filing of the
petition in this case shortly after Mewshaw and Hobbs resigned from Sanchez Oil,
appellants sent the Sanchez parties “a box containing 13 different USB storage
devices.” Eventually Reynolds produced “his two external drives containing
Sanchez files, and Hobbs produced several additional devices as well.”
A. The Original and First Amended Petitions
Within a month of Mewshaw’s and Hobbs’s leaving Sanchez Oil in March
2016, and after the Sanchez parties had sent their demand letters to appellants, the
Sanchez parties filed the underlying lawsuit. They amended their petition four
months later in July 2016, and they amended it a second time two years after that in
July 2018.
4
The original and first amended petitions are virtually identical, with only
minor variations as noted. In both petitions, the Sanchez parties alleged that Sanchez
Oil hired Reynolds, Mewshaw, and Hobbs as engineers in 2014. Sanchez Oil
protected its trade secret and confidential information by requiring its employees
with access to trade secrets and other confidential information, including Reynolds,
Mewshaw, and Hobbs, to sign an employee handbook imposing “rigorous
confidentiality obligations on all employees.” Sanchez Oil also restricted
employees’ access to its files on a need-to-know basis and tracked its employees’
computer activities.
In early 2015, a private equity firm established Terra, which is a “direct
competitor of Sanchez.” Terra began soliciting Reynolds in June (according to the
original petition) or early July 2015 (according to the first amended petition). Terra
offered Reynolds a position as Vice President, and he accepted this position on July
29, 2015. Reynolds gave Sanchez Oil two weeks’ notice of his resignation on July
31 or August 1. On July 30, Reynolds copied several thousand confidential and
proprietary files belonging to the Sanchez parties onto a USB thumb drive, and the
first amended petition added an allegation that Reynolds was “acting on behalf of
and with the encouragement of his new employer Terra.” During his final two weeks
at Sanchez Oil, Reynolds purchased another, larger external hard drive and copied
more files, and he emailed to his personal account “a compiled master list of Sanchez
5
vendors and suppliers.” The Sanchez parties alleged that Reynolds intended to take
their confidential information and “use it to boost his own value and to help jump-
start his new employer Terra, which as a brand-new company lacked any comparable
knowledge base.”
Both the original and first amended petitions detailed Terra’s acquisition of
WPX Energy, which is not a party to the underlying proceedings, and alleged that
Terra used the Sanchez parties’ trade secret and other confidential information “to
identify, model, and bid on the WPX acreage.” The Sanchez parties alleged that
Terra’s acquisition of WPX “share[d] many similarities with Sanchez’s” own
contemporaneous acquisition of the Catarina field, which consists of more than
100,000 acres in the Eagle Ford shale in South Texas. For example, the Sanchez
parties alleged that both acquisitions “have or will benefit tremendously from
Sanchez’s cost-reduction program and techniques” that make up a part of its trade
secrets and other confidential and proprietary information. The first amended
petition added an allegation that Reynolds improperly used the Sanchez parties’
information, even while still employed by Sanchez Oil, by “providing input to
Terra’s acquisition model for a large South Texas conventional gas asset, utilizing
Sanchez’s trade secret information[,]” and that “Terra hired Reynolds to gain access
to this Sanchez information.” Both petitions characterized appellants’ actions as
“industrial espionage.”
6
In addition to Terra and Reynolds’s alleged theft and use of the Sanchez
parties’ information, the Sanchez parties alleged that “Reynolds began targeting and
soliciting additional [Sanchez Oil] employees for Terra,” including Mewshaw and
Hobbs. The Sanchez parties alleged that “Terra recruited Hobbs to further its scheme
to misappropriate Sanchez’s trade secret [and other confidential and proprietary]
information”; that “Hobbs coordinated his departure from [Sanchez Oil] with
Mewshaw,” who copied additional trade secrets and other confidential and
proprietary files belonging to the Sanchez parties onto an external USB drive, as
Reynolds had done; and that “Hobbs had experience and was facile with much of
the stolen information and . . . was hired to assist Terra in exploiting Sanchez’s
information.” The first amended petition added that Hobbs also copied numerous
confidential files and information to a cloud account, as Reynolds and Mewshaw
had done. While the original petition stated that “this entire operation was part of a
coordinated plan by Terra to extract Sanchez’[s] trade secrets and confidential
information,” the amended petition deleted this language.
As we stated above, the Sanchez parties discovered the theft of their trade
secrets and confidential and proprietary information shortly after Mewshaw and
Hobbs followed Reynolds from Sanchez Oil to work for Terra. The Sanchez parties
sent a letter to Terra and each individual appellant regarding the alleged theft of its
information, and Terra responded on behalf of itself and the individual appellants
7
declining to admit or deny whether the individuals had taken any information and
failing to address whether it had used or disclosed the Sanchez parties’ information.
Shortly thereafter, and within a month of Mewshaw’s and Hobbs’s leaving
Sanchez Oil’s employment, the Sanchez parties filed their original petition against
all appellants. The Sanchez parties filed their first amended petition four months
later. The Sanchez parties also requested injunctive relief against appellants,
prohibiting them from using, disclosing, modifying, or destroying the trade secrets
and confidential information, and ordering them to return such information to the
Sanchez parties.
Both the original and first amended petitions asserted five causes of action:
1. misappropriation of trade secrets against all defendants;
2. breach of fiduciary duty against all individual defendants;
3. aiding and abetting breaches of fiduciary duty against all
defendants;
4. breach of contract against all individual defendants; and
5. violation of the Harmful Access by Computer Act against
Reynolds and Mewshaw.3
3
See TEX. PENAL CODE ANN. § 33.02(a) (“A person commits an offense if the person
knowingly accesses a computer, computer network, or computer system without the
effective consent of the owner.”); TEX. CIV. PRAC. & REM. CODE ANN. § 143.001(a)
(“A person injured or whose property has been injured as a result of a violation
under Chapter 33, Penal Code, has a civil cause of action if the conduct constituting
the violation was committed knowingly or intentionally.”).
8
The language used in each cause of action in the first amended petition was
identical to the language used in the original petition. In their cause of action for
misappropriation of trade secrets, the Sanchez parties alleged that appellants
misappropriated numerous trade secrets owned by the Sanchez parties “by acquiring
it with knowledge that it had been acquired via improper means and by using and
disclosing the information without Sanchez’s consent.” Their causes of action for
breaches of fiduciary duty and aiding and abetting such breaches were based on the
individual appellants’ misappropriation of the Sanchez parties’ trade secrets, namely
that they owed fiduciary duties to the Sanchez parties, that all appellants knew about
those fiduciary duties, and that all appellants “knowingly participated in the
[individual appellants’] breaches of the fiduciary duties they owed Sanchez,”
including by using their employee access to the Sanchez parties’ files “for their own
personal gain and for Terra’s gain,” by failing to act in good faith and primarily for
the benefit of the Sanchez parties, and by using and disclosing the Sanchez parties’
confidential information. The Sanchez parties also alleged that “[a]ll [appellants] are
jointly and severally liable as joint tortfeasors for these breaches.”
Appellants did not file a motion to dismiss under the TCPA within sixty days
of the service of either the original or first amended petitions. See TEX. CIV. PRAC.
& REM. CODE ANN. § 27.003(b) (“A motion to dismiss a legal action under [the
9
TCPA] must be filed not later than the 60th day after the date of service of the legal
action.”).
B. The Second Amended Petition
On July 20, 2018, two years after filing their first amended petition and shortly
before trial, the Sanchez parties filed a second amended petition. This petition was
similar to the first two petitions, characterizing appellants’ conduct as “industrial
espionage” and asserting causes of action for misappropriation of trade secrets and
breach of fiduciary duty, which were nearly identical to the first two petitions. There
were, however, some notable differences.
For example, the second amended petition replaced the claim for aiding and
abetting breaches of fiduciary duty in the first two petitions with count 6 for assisting
or encouraging breaches of fiduciary duty and count 7 for assisting and participating
in breaches of fiduciary duty. Like the earlier aiding-and-abetting claims, counts 6
and 7 were alleged against all appellants. Counts 6 and 7 both alleged that Reynolds,
Hobbs, and Mewshaw owed fiduciary duties to the Sanchez parties which they
breached by, among other things, using their access to the Sanchez parties’
confidential information for their own personal gain and for Terra’s gain, acting in
their own interests at the expense of the Sanchez parties, taking and misappropriating
the information, and disclosing the information to unauthorized recipients. Both
counts also alleged that Mewshaw breached his fiduciary duty by soliciting another
10
Sanchez Oil employee on behalf of Terra while still employed by Sanchez Oil. These
more specific allegations also appear in the cause of action against the individual
appellants for breach of their fiduciary duty, which is identical across all three
petitions. Counts 6 and 7 also alleged that each individual appellant and Terra knew
the individuals owed fiduciary duties to the Sanchez parties. Count 6 alleged that
appellants “knowingly and intentionally participated, by providing assistance or
encouragement, in the [individual appellants’] breaches of the fiduciary duties they
owed to Sanchez.” Count 7 alleged that appellants “provided substantial assistance
to one or more of Defendants Reynolds, Hobbs, and Mewshaw in breaching their
fiduciary duties to Sanchez” and that all appellants’ “participation was a substantial
factor in causing the breach of fiduciary duties to Sanchez.”
The second amended petition also added counts 2–4: count 2 for assisting or
encouraging trade secret misappropriation, count 3 for assisting and participating in
trade secret misappropriation, and count 4 for conspiracy to commit trade secret
misappropriation. Counts 2–4 were asserted against all appellants, and counts 2 and
4 (but not count 3) alleged that appellants were “jointly and severally liable as joint
tortfeasors for the misappropriation of Sanchez’s trade secrets.” Count 4 specifically
alleged that all appellants “were members of a combination of persons” and that
“[t]he object of the combination was to accomplish the unlawful purpose of
11
misappropriating Sanchez’s trade secrets or to accomplish a lawful purpose by the
unlawful means of misappropriating Sanchez’s trade secrets.”
In addition to counts 2–4, 6, and 7, the second amended petition added some
language not present in the first two petitions. For example, when discussing
Reynolds’s acceptance of the vice president position at Terra, the petition added,
The very next day, acting on behalf of and as an officer of his new
employer Terra, Reynolds went to Sanchez and copied several thousand
Sanchez files onto a USB thumb drive. These documents covered
virtually every aspect of Sanchez’s business. Terra is directly and/or
vicariously liable for all of Reynolds’ actions set forth herein.
Furthermore, when discussing how the evidence that the Sanchez parties had
obtained in discovery “strongly supports the conclusion” that the taking of the
Sanchez parties’ trade secrets and other confidential information “was agreed to and
coordinated by all [appellants],” the second amended petition added some examples,
including:
• Reynolds met and conversed with Terra repeatedly in the days
leading up to his copying of Sanchez’s information.
• Reynolds’s initial wave of copying began the day after he
accepted Terra’s offer.
• Reynolds subsequently met with Keith Brown4 on August 4,
2015[,] to discuss “model inputs,” among other things. The
following day, Reynolds began extracting even more Sanchez
files using an even larger external drive, which he had apparently
purchased for that very purpose.
4
The record on appeal indicates that Keith Brown was Terra’s chief operating officer.
12
• Reynolds was in regular contact with Mewshaw and Hobbs
beginning in November 2015 and continuing through their
eventual departure from Sanchez.
• Among other things, Reynolds discussed with [Mewshaw and
Hobbs] Sanchez’s success at accelerating its rig moves,
information regarding WPX’s operations, and information
regarding Terra’s plan to achieve cost reductions after acquiring
the WPX asset.
The second amended petition also specified that, in “July 2015, Terra and
Reynolds had a meeting of the minds to misappropriate Sanchez ’s trade-secret
information and to use, acquire, and disclose it without Sanchez’s consent,” and that,
in “February 2016, Terra, Reynolds, Hobbs, and Mewshaw had a meeting of the
minds to continue misappropriating Sanchez’s trade-secret information and to use,
acquire, and disclose it without Sanchez’s consent.”
C. Appellants’ Original TCPA Motion to Dismiss Counts 2–4
On September 7, 2018, within sixty days of the filing of the second amended
petition, appellants filed an opposed joint motion to dismiss under the TCPA
(original TCPA motion). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(a)
(authorizing party to file motion to dismiss “legal action” that “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”), (b) (requiring motion to dismiss to “be filed not later than the 60th day
after the date of service of the legal action”). In their original TCPA motion,
13
appellants only sought dismissal of counts 2–4 in the second amended petition,
specifically representing that,
Although [the Sanchez parties] added a total of four causes of action in
their Second Amended Petition to bring the total from five to nine, one
of the “new” causes of action was a mere recasting of the aiding and
abetting breach of fiduciary duty claim that [the Sanchez parties]
asserted in their original and first amended petitions. For this reason,
[appellants] bring this motion to dismiss only as to the three entirely
new causes of action based on conspiracy and aiding and abetting
misappropriation of trade secrets.
(Emphasis in original.)
The Sanchez parties filed a notice of non-opposition to appellants’ motion to
dismiss, stating they believed appellants’ motion lacked merit but “[n]onetheless, to
avoid the inevitable delay” of an interlocutory appeal of a TCPA order, the Sanchez
parties did not oppose the motion. The Sanchez parties also filed a notice of non-suit
of counts 2–4. The trial court signed an order granting the original TCPA motion on
September 25, 2018.
D. Appellants’ Amended TCPA Motion to Dismiss All But One Remaining
Count
On September 14, 2018, appellants filed an amended opposed joint motion to
dismiss under the TCPA (amended TCPA motion). In it, appellants argued that the
second amended petition “contain[s] newly alleged causes of action and facts that
resulted in [c]ounts 1–8 each becoming a new legal action as defined by the TCPA,”
and appellants sought dismissal of all causes of action except count 9 for violation
14
of the Harmful Access by Computer Act against Reynolds and Mewshaw.
Appellants acknowledged that “[t]he TCPA requires that a motion to dismiss a legal
action be brought ‘not later than the 60th day after the date of service of the legal
action[,]’” and that, “[f]or this reason, TCPA motions are traditionally brought at the
beginning of a lawsuit (when legal actions are typically first served on the other
parties).” However, appellants argued that “an amended pleading must be regarded
as a new legal action subject to a TCPA motion to dismiss within 60 days of its
filing,” although they acknowledged that other courts require “new causes of
action—or new TCPA-covered factual allegations” to restart the sixty-day TCPA
deadline “as to that legal action.” Appellants also denied filing their amended TCPA
motion for delay. Terra filed a reply brief separately from the individual appellants,
arguing that the plain language of the TCPA authorizes a motion to dismiss within
sixty days of any amended petition, regardless of whether it asserts new claims or
factual allegations, because an amended petition fits within the statutory definition
of a “legal action.”
In response, the Sanchez parties argued that appellants had changed their
position from their original TCPA motion, which the trial court had granted and in
which they had argued that only counts 2–4 as alleged in the second amended
petition were new claims, not that all claims were new. The Sanchez parties denied
that they had added any new material factual allegations, emphasizing their
15
voluntary non-suit and non-opposition to dismissal of counts 2–4 in order to move
the case along. The Sanchez parties argued that their second amended petition
merely reinforced existing factual allegations present in their original and first
amended petitions, but did not change their essential factual allegations, and,
therefore, the amended TCPA motion was untimely because it was not filed within
sixty days of the original petition.
The trial court held an oral hearing, at which the parties reiterated these
arguments. The trial court denied appellants’ amended TCPA motion to dismiss.
This appeal followed.
Timeliness Under the Texas Citizens Participation Act
In their first issue, appellants argue that the trial court erred in denying their
amended TCPA motion for untimeliness. In its brief, Terra first argues that the filing
of an amended petition alone resets the sixty-day deadline to file a TCPA motion
under the plain language of the statute. Terra alternatively argues that an amended
petition asserting new parties or new claims restarts the sixty-day TCPA deadline
and that the Sanchez parties asserted new claims in their second amended petition
because they asserted new causes of action, a new theory of liability, and new factual
allegations. Reynolds, Mewshaw, and Hobbs primarily urge Terra’s first
argument—that an amended petition alone resets the TCPA deadline under the plain
language of the statute—and they summarily adopt Terra’s remaining arguments.
16
The Sanchez parties respond that they did not assert new claims in their
second amended petition because (1) they have not changed the crux of their
allegations since their original petition, (2) their second amended petition merely
split one legal cause of action into two separate causes of action and added factual
detail that did not change their essential factual allegations, and (3) they voluntarily
non-suited counts 2–4, which the trial court dismissed with prejudice, so those
causes of action are not at issue in this appeal.
A. Standard of Review
We review de novo a trial court’s denial of a TCPA motion to dismiss.
Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 470 (Tex. App.—Houston [1st Dist.]
2020, pet dism’d) (en banc) (citing Better Bus. Bureau of Metro. Houston, Inc. v.
John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.]
2013, pet. denied)). In deciding a TCPA motion to dismiss, trial courts “shall
consider the pleadings and supporting and opposing affidavits” filed by the parties.
Id. (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a)).
B. Governing Law
The TCPA is an anti-SLAPP (Strategic Lawsuits Against Public Participation)
statute enacted by the Texas Legislature “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,
17
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; see Dyer v.
Medoc Health Servs., LLC, 573 S.W.3d 418, 426 (Tex. App.—Dallas 2019, pet.
denied) (stating purpose of TCPA is “to curb strategic lawsuits against public
participation”). The TCPA protects citizens from retaliatory lawsuits that seek to
intimidate or silence them on matters of public concern. Gaskamp, 596 S.W.3d at
469 (citing In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015)).
The TCPA authorizes a defendant to file a motion to dismiss a legal action
that is based on or is in response to his exercise of his rights of free speech, of
petition, or of association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a); Dallas
Morning News, Inc. v. Hall, 579 S.W.3d 370, 376 (Tex. 2019); Gaskamp, 596
S.W.3d at 457. The motion must be filed within sixty days after the date of service
of the “legal action” he seeks to have dismissed.5 TEX. CIV. PRAC. & REM. CODE
ANN. § 27.003(b).
The TCPA defines “legal action” as “a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal or equitable relief.” Id. § 27.001(6). This Court and our sister appellate
5
Section 27.003(b) allows a trial court to extend the time to file a motion to dismiss
under the TCPA on a showing of good cause, but appellants do not argue that the
deadline should have been extended in this case. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.003(b) (pre-amendment).
18
courts have repeatedly held that an amended petition that asserts “new claims based
upon new factual allegations will reset a TCPA deadline as to the new legal action,”
but “an amended petition, by itself, does not reset the 60-day clock if it adds no new
claims and relies upon the same factual allegations underlying the original petition.”
Chandni I, Inc. v. Patel, 601 S.W.3d 13, 17 (Tex. App.—El Paso 2019, pet. denied)
(citation omitted); Jordan v. Hall, 510 S.W.3d 194, 198 (Tex. App.—Houston [1st
Dist.] 2016, no pet.); Paulsen v. Yarrell, 455 S.W.3d 192, 197 (Tex. App.—Houston
[1st Dist.] 2014, no pet.) (citing In re Estate of Check, 438 S.W.3d 829, 837 (Tex.
App.—San Antonio 2014, no pet.)), superseded by statute on other grounds as stated
in Jordan, 510 S.W.3d at 198; James v. Calkins, 446 S.W.3d 135, 146 (Tex. App.—
Houston [1st Dist.] 2014, pet. denied).
“Additional factual details in a subsequent petition also do not reset the TCPA
clock if the essential factual allegations as to the claim were present in the prior
petition.” Chandni I, 601 S.W.3d at 17 (citing In re Estate of Check, 438 S.W.3d at
837, Paulsen, 455 S.W.3d at 198, and Mancilla v. Taxfree Shopping, Ltd., No. 05-
18-00136-CV, 2018 WL 6850951, at *3 (Tex. App.—Dallas Nov. 16, 2018, no
pet.)); Paulsen, 455 S.W.3d at 198 (“Despite the additional details . . . , the third
amended petition relied on the same essential factual allegations as the claim stated
in [the plaintiff’s] original petition, and therefore it did not reset the deadline for [the
defendant] to file a motion to dismiss under the TCPA.”) (citation omitted). Slight
19
changes to the word order, phrasing, or structure of claims in amended petitions that
are otherwise based on the same essential factual allegations previously asserted do
not constitute new claims. Chandni I, 601 S.W.3d at 20 (citing Paulsen, 455 S.W.3d
at 198). Moreover, “an attempt to split a claim into distinct but essentially identical
claims that are based on the same underlying facts as the original claim does not
assert a new legal action resetting the 60-day TCPA filing deadline.” Id. (citing
Paulsen, 455 S.W.3d at 198).
This standard is based on the purpose of the TCPA, which is “to provide for
the early dismissal of claims that seek to inhibit a defendant’s constitutional rights
to petition, speak freely, associate freely, and participate in government as permitted
by law.” Id. (citing Paulsen, 455 S.W.3d at 198); TEX. CIV. PRAC. & REM. CODE
ANN. § 27.002. The standard is also based on Texas’s fair-notice pleading standard.
See Kinder Morgan SACROC, LP v. Scurry Cty., 589 S.W.3d 889, 898 (Tex. App.—
Eastland 2019, pet. filed) (holding that fair-notice standard controls analysis of
whether amended petition asserts new “legal action”) (citing Fawcett v. Rogers, 492
S.W.3d 18, 26–27 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (applying fair-
notice standard in appeal of trial court’s denial of TCPA motion to conclude that
petition sufficiently put defendants on notice of defamation per se claim)); see also
In re Lipsky, 460 S.W.3d at 590 (“Our procedural rules . . . require that the pleading
provide fair notice of the claim and the relief sought such that the opposing party
20
can prepare a defense.”) (citing TEX. R. CIV. P. 45, 47). Under the fair-notice
standard, “a plaintiff’s pleading is only required to ‘give a short statement of the
cause of action sufficient to give the opposing party fair notice of the claim
involved.’” Fawcett, 492 S.W.3d at 26–27 (quoting Tex. Dep’t of Parks & Wildlife
v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004), and Khan v. GBAK Props., Inc., 371
S.W.3d 347, 357 (Tex. App.—Houston [1st Dist.] 2012, no pet.)). The fair-notice
standard does not require a plaintiff to “set out in his pleadings the evidence upon
which he relies to establish his asserted cause of action.” Miranda, 133 S.W.3d at
230 (citing Paramount Pipe & Supply Co., Inc. v. Muhr, 749 S.W.2d 491, 494–95
(Tex. 1988)). “Even the omission of an element is not fatal if the cause of action
‘may be reasonably inferred from what is specifically stated.’” In re Lipsky, 460
S.W.3d at 590 (quoting Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993)). Thus, an
amended petition asserts a new legal action if it is a new claim based on new factual
allegations that were not included in or reasonably inferred from the allegations in
prior petitions. See Chandni I, 601 S.W.3d at 17, 20; Kinder Morgan, 589 S.W.3d
at 898; Jordan, 510 S.W.3d at 198; Paulsen, 455 S.W.3d at 197–98; Fawcett, 492
S.W.3d at 26.
21
C. Analysis
1. Whether Filing an Amended Petition Alone Constitutes a “Legal
Action”
In both opening briefs, Terra and the individual appellants argue that, under
the plain language of the TCPA, the filing of an amended petition alone is a “legal
action” that resets the sixty-day deadline to file a motion to dismiss. See TEX. CIV.
PRAC. & REM. CODE ANN. § 27.003(b) (authorizing motion to dismiss under TCPA
within 60 days of service of “legal action”). This Court has previously rejected
appellants’ argument. See Jordan, 510 S.W.3d at 198 (“Although an amended
petition asserting claims based upon new factual allegations may reset a TCPA
deadline as to the newly-added substance, the deadline for a TCPA motion is not
reset when a plaintiff files an amended petition that adds no new claims and relies
upon the same factual allegations underlying an original petition.”) (citing James,
446 S.W.3d at 146); Paulsen, 455 S.W.3d at 197 (“An amended pleading that does
not add new parties or claims does not restart the deadline for filing a motion to
dismiss under the TCPA.”). We also note that all our sister courts that have
considered this argument have likewise rejected it. Chandni I, 601 S.W.3d at 20
(holding that defendants’ TCPA motion to dismiss claims in amended petition was
untimely because amended petition did not add new claims but merely added factual
detail to same essential factual allegations that were present in prior petition); In re
Estate of Check, 438 S.W.3d at 836–37 (holding Check’s TCPA motion to dismiss
22
counterclaim in amended petition was untimely because counterclaim did not add
new parties or claims and because allowing TCPA motion would “defeat the
[TCPA’s] purpose of dismissing unmeritorious suits based on or related to the
exercise of free speech early in the litigation or in an expeditious manner”) (citing
Better Bus. Bureau of Metro. Dallas, Inc. v. Ward, 401 S.W.3d 440, 443 (Tex.
App.—Dallas 2013, pet. denied)); Miller Weisbrod, L.L.P. v. Llamas-Soforo, 511
S.W.3d 181, 193 (Tex. App.—El Paso 2014, no pet.) (holding that defendant’s
TCPA motion to dismiss claims in subsequent amended petition was untimely
because sixty-day deadline to file TCPA motion was triggered by prior amended
petition duly served upon and giving notice of claims to defendant); Hicks v. Grp. &
Pension Adm’rs, Inc., 473 S.W.3d 518, 529–30 (Tex. App.—Corpus Christi–
Edinburg 2015, no pet.) (holding that TCPA motion to dismiss claims in amended
petition was untimely as to two claims asserted in prior petition but timely as to two
new claims first asserted in amended petition); Mancilla, 2018 WL 6850951, at *3–
4 (holding TCPA motion untimely because amended petition “simply refined its
earlier, broad allegations,” which “do nothing more than provide specificity of TFS’s
claim of which appellants had notice in the original petition” and, “[t]hus, appellants’
alleged need for protection under the TCPA motion was apparent as of the original
petition”).
23
Because we are bound by our own precedent, we conclude that the trial court
did not err in denying appellants’ amended motion to dismiss as untimely based on
the filing of the second amended petition alone. See In re Expunction, 465 S.W.3d
283, 288–89 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing Weiner v.
Wasson, 900 S.W.2d 316, 320 (Tex. 1995), and Gutierrez v. Collins, 583 S.W.2d
312, 317 (Tex. 1979)).
2. Whether Adding New Claims or New Parties to an Amended
Petition Constitutes a “Legal Action”
Terra alternatively argues that the second amended petition added new causes
of action, new theories of liability, and new factual allegations, and therefore it
asserted new claims that are subject to dismissal under the TCPA on a motion to
dismiss filed within sixty days of the second amended petition. The parties do not
dispute that appellants filed both their original TCPA motion—which sought
dismissal with prejudice only of counts 2–4 and which the trial court granted without
opposition from the Sanchez parties—and their amended TCPA motion, the denial
of which is the subject of this appeal, within sixty days of the filing of the second
amended petition.
a. New Causes of Action
Appellants argue that counts 1, 6, and 7 in the second amended petition are
new causes of action, which reset the sixty-day deadline to file a TCPA motion to
dismiss. Appellants focus their arguments on counts 6 and 7 for assisting,
24
encouraging, and participating in breaches of fiduciary duty, arguing that they
contain additional elements that were not present in the prior claim they replaced for
aiding and abetting breaches of fiduciary duty. The Sanchez parties respond that
counts 6 and 7 are not new claims, but rather are a split of their previously asserted
aiding-and-abetting claim into two separate claims that are based on the same factual
allegations as the aiding-and-abetting claim.
As we stated above, “new claims based upon new factual allegations” asserted
for the first time in an amended petition may be subject to a motion to dismiss under
the TCPA within sixty days of the filing of the amended pleading. Chandni I, 601
S.W.3d at 17; Jordan, 510 S.W.3d at 198; Paulsen, 455 S.W.3d at 197 (citing In re
Estate of Check, 438 S.W.3d at 837); James, 446 S.W.3d at 146. Adding factual
detail, changing the word order, phrasing, or structure, or splitting a claim into
distinct but essentially identical claims based on the same underlying facts does not
assert a new “legal action.” Chandni I, 601 S.W.3d at 17, 20; Paulsen, 455 S.W.3d
at 198.
Count 1, for misappropriation of trade secrets, is identical across all three
petitions. Appellants’ brief on appeal states that count 1 in the second amended
petition is a new cause of action, but appellants offer no further argument. See TEX.
R. APP. P. 38.1(i) (“The [appellant’s] brief must contain a clear and concise argument
for the contentions made”). Because appellants have offered no argument that count
25
1 is a new claim based on new factual allegations, and because our review shows
that count 1 is identical across all three petitions, we conclude that count 1 in the
second amended petition is not a new claim based on new factual allegations. See,
e.g., Chandni I, 601 S.W.3d at 17 (stating that only new claim based upon new
factual allegations is “legal action” resetting sixty-day deadline to file TCPA
motion); Paulsen, 455 S.W.3d at 197.
Count 6 is for assisting or encouraging breaches of fiduciary duty, and count
7 is similarly for assisting and participating in breaches of fiduciary duty. Both
causes of action contain substantially similar language, alleging that Reynolds,
Mewshaw, and Hobbs owed various fiduciary duties to the Sanchez parties and
breached those duties by, among other things, using their access to the Sanchez
parties’ confidential information for their own personal gain and for Terra’s gain,
acting in their own interests at the expense of the Sanchez parties, taking and
misappropriating the information, and disclosing the information to unauthorized
recipients. Both counts also allege that Mewshaw further breached his fiduciary duty
by soliciting another Sanchez Oil employee on behalf of Terra while he was still
employed by Sanchez Oil. Count 6 separately alleges that appellants “knowingly
and intentionally participated, by providing assistance or encouragement, in the
[individual appellants’] breaches of the fiduciary duties they owed to Sanchez.”
Count 7 separately alleges that appellants “provided substantial assistance to one or
26
more of Defendants Reynolds, Hobbs, and Mewshaw in breaching their fiduciary
duties to Sanchez” and that all appellants’ “participation was a substantial factor in
causing the breach of fiduciary duties to Sanchez.” Both counts allege that appellants
were jointly and severally liable as joint tortfeasors for the breaches.
According to the Sanchez parties, these two claims were merely split from
and based on the same factual allegations as their earlier claim for aiding and
abetting breaches of fiduciary duty. The earlier aiding-and-abetting claim alleged
that Reynolds, Mewshaw, and Hobbs owed fiduciary duties to the Sanchez parties,
that all appellants knew the three individuals owed the fiduciary duties, that all
appellants “knowingly participated in the [individual appellants’] breaches of the
fiduciary duties they owed Sanchez,” and that all appellants “are jointly and
severally liable as joint tortfeasors for these breaches.” This claim did not separately
state how the individuals breached their fiduciary duties as counts 6 and 7 do, but
the separate cause of action for breach of fiduciary duty—which is identical across
all three petitions—included the list of alleged breaches that appears in counts 6 and
7. The factual allegations in the first amended petition included allegations that
Reynolds was “acting on behalf of and with the encouragement of his new employer
Terra” when he misappropriated the Sanchez parties’ trade secrets and other
confidential information and that “Terra hired Reynolds to gain access to this
Sanchez information.”
27
We therefore agree with the Sanchez parties that counts 6 and 7 merely split
the aiding-and-abetting claim into two essentially identical claims that are based on
the same underlying facts as the claim for aiding and abetting. See Chandni I, 601
S.W.3d at 20 (“[A]n attempt to split a claim into two distinct but essentially identical
claims that are both based on the same underlying facts as the original claim does
not assert a new legal action resetting the 60-day TCPA filing deadline.”) (citing
Paulsen, 455 S.W.3d at 198). Counts 6 and 7 do include some additional factual
details, such as restating the list of alleged breaches that already appeared in the
claim for breach of fiduciary duty and adding that appellants’ knowing and
intentional participation was “by providing assistance or encouragement” and by
“provid[ing] substantial assistance to one or more of [appellants] in breaching their
fiduciary duties to Sanchez.” See id. (stating that slight differences in word order,
phrasing, and structure does not state new claim). However, all three causes of
action—the aiding-and abetting claim in the first two petitions and counts 6 and 7 in
the second amended petition—rely on the same essential factual allegations that
appellants misappropriated the Sanchez parties’ trade secrets and other confidential
information for their own gain and at the Sanchez parties’ expense. See id. at 17;
Jordan, 510 S.W.3d at 198; Paulsen, 455 S.W.3d at 197.
Appellants argue that counts 6 and 7 are new causes of action because they
include elements not included in the earlier aiding-and-abetting cause of action.
28
Appellants argue that the earlier claim was based on subsection (a) of the
Restatement (Second) of Torts section 876 while counts 6 and 7 were based on
subsections (b) and (c). Section 876
impos[es] liability on a person for the conduct of another which causes
harm if the defendant:
(a) does a tortious act in concert with the other or pursuant to a
common design with him, or
(b) knows that the other’s conduct constitutes a breach of duty and
gives substantial assistance or encouragement to the other so to
conduct himself, or
(c) gives substantial assistance to the other in accomplishing a
tortious result and his own conduct, separately considered,
constitutes a breach of duty to the third person.
Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996) (quoting RESTATEMENT
(SECOND) OF TORTS § 876 (1977)).
However, the Sanchez parties did not expressly assert these claims under the
Restatement (Second) of Torts, and the Texas Supreme Court has stated that it is “an
open question” whether Texas recognizes a theory of liability under section 876 of
the Restatement. See id. Assuming without deciding that these claims were asserted
under the Restatement and that Texas has adopted section 876 into its law, we
disagree with appellants that the earlier aiding-and-abetting claim was solely based
on subsection 876(a). As we stated above, that claim alleged that all appellants
“knowingly participated in the [individual appellants’] breaches of the fiduciary
29
duties they owed Sanchez” and that all appellants “are jointly and severally liable as
joint tortfeasors for these breaches.” The factual allegations included that Reynolds
“act[ed] on behalf of and with the encouragement of his new employer Terra” when
he misappropriated the Sanchez parties’ trade secrets and other confidential
information and that “Terra hired Reynolds to gain access to this Sanchez
information.” Thus, the earlier petitions alleged not only that each appellant acted in
concert with the individual appellants under subsection (a), but also that each
appellant provided substantial assistance or encouragement to the other, which itself
is a breach of the individual’s fiduciary duty under subsections (b) and (c).
In sum, counts 6 and 7 are based on the same factual allegations present across
all three petitions: that Terra and the individual appellants worked together to
misappropriate the Sanchez parties’ trade secrets and other confidential information
to use for their own benefit and against the Sanchez parties’ benefit. We therefore
conclude that counts 1, 6, and 7 in the second amended petition are not new claims,
and therefore appellants’ motion to dismiss these causes of action under the TCPA
was untimely.
b. New Theory of Liability
Appellants next argue that the second amended petition added a new theory
of liability by asserting for the first time that Reynolds was acting “as an officer” of
Terra when he misappropriated the Sanchez parties’ trade secrets, and therefore that
30
Terra is directly and/or vicariously liable for all of Reynolds’s actions, including
actions he took prior to being employed by Terra. We disagree.
The second amended petition states,
Reynolds signed an offer letter from Terra on July 29, 2015[,] to
become Terra’s Vice President of Operations. The very next day, acting
on behalf of and as an officer of his new employer Terra, Reynolds went
to Sanchez and copied several thousand Sanchez files onto a USB
thumb drive. These documents covered virtually every aspect of
Sanchez’s business. Terra is directly and/or vicariously liable for all of
Reynolds’ actions set forth herein.
Both prior petitions stated that Reynolds was offered a position as vice
president by Terra, which he accepted, but before leaving his employment with
Sanchez Oil, Reynolds misappropriated the Sanchez parties’ information that Terra
then used and disclosed. The first amended petition specifically stated that Reynolds
was “acting on behalf of and with the encouragement of his new employer Terra”
when Reynolds misappropriated the Sanchez parties’ trade secrets and other
confidential information, that “Terra hired Reynolds to gain access to this Sanchez
information,” that “Reynolds began targeting and soliciting additional [Sanchez Oil]
employees for Terra,” and that Hobbs and Mewshaw, employees of Sanchez Oil
whom Reynolds successfully recruited for Terra, similarly misappropriated
information from the Sanchez parties before resigning from Sanchez Oil to work at
Terra.
31
The original petition stated that “this entire operation was part of a coordinated
plan by Terra to extract Sanchez’[s] trade secrets and confidential information.”
Moreover, the Sanchez parties’ claim for aiding and abetting breaches of fiduciary
duty, which is based almost exclusively on the misappropriation of trade secrets and
other confidential information, stated, “All [appellants] are jointly and severally
liable as joint tortfeasors for these breaches.” These allegations provided fair notice
to appellants that the Sanchez parties claimed Reynolds misappropriated information
on behalf of Terra and that they sought to hold Terra directly liable for its own
conduct and vicariously liable for Reynolds’s actions prior to working at Terra,
including his misappropriation of the Sanchez parties’ trade secrets and other
confidential information prior to his resignation from Sanchez Oil. See In re Lipsky,
460 S.W.3d at 590; Kinder Morgan, 589 S.W.3d at 898 (citing Fawcett, 492 S.W.3d
at 26). Despite the minor additional factual details, these are the same essential
factual allegations first asserted in the original and first amended petitions. See
Chandni I, 601 S.W.3d at 17, 20; Paulsen, 455 S.W.3d at 198.
We conclude that appellants’ motion to dismiss under the TCPA was untimely
because the supposedly new theory of liability was not a new “legal action” which
reset the sixty-day deadline to file a TCPA motion to dismiss.
32
c. Additional Factual Allegations
Appellants also argue that the Sanchez parties pleaded new factual allegations
of TCPA-protected activity as a basis for counts 1–8, which therefore restarted the
sixty-day clock to file a motion to dismiss those counts under the TCPA. Appellants
argue that “the Sanchez parties are now alleging that [appellants] were involved in
a massive scheme to assist with the misappropriation of their alleged trade secrets.”
But both the original and first amended petitions stated that “Terra recruited Hobbs
to further its scheme to misappropriate Sanchez’s trade secret [and other confidential
and proprietary] information,” and they explained that Terra recruited Sanchez Oil’s
employees, the first of whom was Reynolds, who was made Terra’s vice president
of operations and who, in turn, recruited Mewshaw and Hobbs. The original and first
amended petitions further explained how each individual, after meeting with Terra,
possibly about employment there, stole large amounts of information from the
Sanchez parties, went to work for Terra, and used and disclosed the Sanchez parties’
information to benefit themselves and Terra, including by acquiring a competing
company. Thus, we disagree that the second amended petition alleged for the first
time that appellants were involved in a massive scheme to misappropriate, or to
assist in the misappropriation of, the Sanchez parties’ information. See Paulsen, 455
S.W.3d at 198 (“Despite the additional details . . . , the third amended petition relied
on the same essential factual allegations as the claim stated in [the plaintiff’s]
33
original petition, and therefore it did not reset the deadline for [the defendant] to file
a motion to dismiss under the TCPA.”) (citation omitted).
Appellants also argue that new factual allegations added to the second
amended petition constitute new claims, and they point to the following language:
(1) “that [appellants] ‘met and conversed,’ ‘discussed’ their plans, and were ‘in
regular contact,” and (2) “that [appellants] had a ‘meeting of the minds,’ ‘were
members of a combination of persons,’ and that the ‘object of the combination was
to accomplish the unlawful purpose of misappropriating Sanchez’s trade secrets.’”
When providing examples of evidence “strongly support[ing] the conclusion
that [the misappropriation of the Sanchez parties’ information] was agreed to and
coordinated by all [appellants],” the second amended petition states, “Reynolds met
and conversed with Terra repeatedly in the days leading up to his copying of Sanchez
information”; Reynolds extracted additional files after meeting and “discuss[ing]
‘model inputs,’ among other things,” with Keith Brown, Terra’s chief officer of
operations; Reynolds “was in regular contact with Mewshaw and Hobbs” in the
months before and during their departure from Sanchez Oil; and “Reynolds
discussed with [Mewshaw and Hobbs] Sanchez’s success” and information about
Terra’s acquisition of WPX and Terra’s plans to reduce costs after the acquisition.
But although the original and first amended petitions did not use the words
“met and conversed,” “discussed” plans, and were “in regular contact,” it gave fair
34
notice of such claims. See id.; Kinder Morgan, 589 S.W.3d at 898 (citing Fawcett,
492 S.W.3d at 26–27). Both the original and first amended petitions alleged that
Terra solicited Sanchez Oil employees, including Reynolds, who “began targeting
and soliciting additional [Sanchez Oil] employees for Terra,” and who, “acting on
behalf of and with the encouragement of his new employer Terra,” copied files
containing confidential information and used it to benefit himself and Terra. The
first amended petition stated that, even while still employed by Sanchez Oil,
Reynolds “provid[ed] input to Terra’s acquisition model . . . utilizing Sanchez’s
trade secret information” and that “Terra hired Reynolds to gain access to this
Sanchez information,” conduct that all petitions characterized as “industrial
espionage.”
All of these factual allegations gave appellants fair notice in 2016 that the
Sanchez parties were alleging appellants met, conversed, discussed plans, and were
in regular contact. See Chandni I, 601 S.W.3d at 17 (stating that additional factual
allegations in amended petition do not state new claim if claim is based on same
essential factual allegations); Paulsen, 455 S.W.3d at 198 (same); Fawcett, 492
S.W.3d at 26–27 (stating that plaintiff’s pleading was only required to give short
statement of cause of action sufficient to give opposing party fair notice of claim
involved) (citations omitted). The individual appellants allegedly each stole similar
confidential information from the Sanchez parties in a similar manner: after talking
35
to Terra about employment opportunities, they downloaded confidential information
from Sanchez’s computers onto their personal thumb drives or emailed it to
themselves, resigned from Sanchez Oil, began employment with Terra, and used the
confidential information to benefit themselves and Terra. All of this requires
communication and meeting. Thus, despite adding minor details to the second
amended petition, appellants had been on notice of these claims since the original
petition. See Chandni I, 601 S.W.3d at 17; Paulsen, 455 S.W.3d at 198.
We likewise conclude that the other additional language does not constitute
new factual allegations. The second amended petition states that “Terra and
Reynolds had a meeting of the minds to misappropriate Sanchez’s trade-secret
information and to use, acquire, and disclose it without Sanchez’s consent” and that
“[all appellants] had a meeting of the minds to continue misappropriating Sanchez’s
trade-secret information and to use, acquire, and disclose it without Sanchez’s
consent.” But, as we discussed above, the original and first amended petitions
included causes of actions for misappropriating trade secrets and other confidential
information and for breaching or assisting with breaches of fiduciary duty based on
the confidential information, and they were based on factual allegations that all
appellants had improperly acquired, used, and disclosed the confidential
information. See Chandni I, 601 S.W.3d at 17; Paulsen, 455 S.W.3d at 198. The
Sanchez parties have consistently maintained that appellants misappropriated trade
36
secrets and other confidential information and used it for appellants’ own benefit
and to the Sanchez parties’ harm.
Appellants also argue that “[the Sanchez parties’] prior pleadings made no
mention of coordinated action between all [appellants] to steal trade secrets, let alone
a meeting of the minds and agreement to commit overt acts in furtherance of a
scheme against the Sanchez [p]arties,” but this is incorrect. The original petition
stated, “[T]his operation was part of a coordinated plan by Terra to extract
Sanchez’[s] trade secrets and confidential information.” Both the original and the
first amended petition stated, “Terra recruited Hobbs to further its scheme to
misappropriate Sanchez’s trade secret [and other confidential and proprietary]
information.” Thus, we conclude that all petitions alleged a scheme that reasonably
put appellants on fair notice that the Sanchez parties were alleging that appellants
agreed and coordinated to work together to misappropriate or assist in the
misappropriation of the Sanchez parties’ trade secrets and other confidential
information. See Paulsen, 455 S.W.3d at 198; Kinder Morgan, 589 S.W.3d at 898
(citing Fawcett, 492 S.W.3d at 26–27).
Finally, appellants argue that the Sanchez parties’ non-suit of counts 2–4,
which the trial court dismissed with prejudice, does not change the analysis because
the Sanchez parties “still seek to hold [appellants] jointly and severally liable for the
same TCPA-protected conduct under the remaining causes of action.” We disagree.
37
Counts 2–4 were not the only claims asserting joint and several liability, the premise
upon which appellants’ argument is based. Counts 6 and 7, which we determined
above were not new claims based on new factual allegations that reset the deadline
to file a TCPA motion, also expressly assert joint and several liability against
appellants. The earlier aiding-and-abetting claim, which was split into counts 6 and
7, also expressly asserted joint and several liability against appellants. Thus,
appellants have been on notice since the original petition that the Sanchez parties
sought to hold them jointly and severally liable. See Paulsen, 455 S.W.3d at 198;
Kinder Morgan, 589 S.W.3d at 898 (citing Fawcett, 492 S.W.3d at 26–27).
We conclude that the Sanchez parties’ second amended petition did not assert
a new “legal action” that reset the sixty-day clock to file a motion to dismiss under
the TCPA. We hold that the trial court did not err by dismissing appellants’ amended
TCPA motion for untimeliness.6
We overrule appellants’ first issue.
D. Whether Appellants’ Amended Motion to Dismiss Was Frivolous or Was
Solely Intended to Delay
In their final issue, appellants argue that the trial court abused its discretion in
assessing attorney’s fees against them because they did not file their TCPA motion
6
Because we determine that appellants’ amended TCPA motion was untimely, we do
not consider their other issues concerning the applicability of the TCPA to the
Sanchez parties’ claims in the second amended petition.
38
solely for delay.7 Appellants contend that they are exercising their rights under the
TCPA, including seeking interlocutory appellate review of the merits of their claims,
and that they were not bound to assert their claims in a motion for summary
judgment, which does not allow for interlocutory appellate review. The Sanchez
parties respond that attorney’s fees under the TCPA are appropriate if a motion is
frivolous or solely intended for delay; a court need not find both. They further argue
that appellants filed two TCPA motions, took “legal positions that were
diametrically opposed,” and, in the amended TCPA motion, sought dismissal of all
but one of the nine counts alleged against them, whereas the original motion sought
dismissal of only three counts. Further, the Sanchez parties argue that they offered
to revert to their earlier petition if appellants would dismiss their amended TCPA
motion, but appellants declined and admitted that they pursued the TCPA motion
rather than a summary-judgment motion because the former allowed for
interlocutory review.
Under the TCPA, “[i]f the court finds that a motion to dismiss filed under this
chapter is frivolous or solely intended to delay, the court may award court costs and
reasonable attorney’s fees to the responding party.” TEX. CIV. PRAC. & REM. CODE
ANN. § 27.009(b). We review the trial court’s decision to award costs and attorney
7
Appellants do not challenge the amount of the award, but only the trial court’s
decision to award costs and attorney’s fees.
39
fees to a responding party under section 27.009(b) for an abuse of discretion.
Sullivan v. Tex. Ethics Comm’n, 551 S.W.3d 848, 857 (Tex. App.—Austin 2018,
pet. denied) (citation omitted); see ADB Interest, LLC v. Wallace, 606 S.W.3d 413,
440 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (reviewing trial court’s award
of attorney’s fees to TCPA movant under section 27.009(a)(1) for abuse of
discretion) (citing Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016), and
McGibney v. Rauhauser, 549 S.W.3d 816, 820 (Tex. App.—Fort Worth 2018, pet.
denied)). “A trial court does not abuse its discretion merely because the appellate
court would have ruled differently in the same circumstance,” but rather “the
appropriate inquiry is whether the court acted without reference to any guiding rules
or principles, that is, whether the court’s act was arbitrary or unreasonable.” Wallace,
606 S.W.3d at 440 (citing E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d
549, 558 (Tex. 1995), and Low v. Henry, 221 S.W.3d 609, 614, 620 (Tex. 2007));
Sullivan, 551 S.W.3d at 857 (quoting Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.
1997)).
Here, the trial court found that appellants’ amended TCPA motion was
intended solely for delay, but it did not make a finding whether the motion was also
frivolous. We agree with the Sanchez parties that delay motivated appellants to file
their amended TCPA motion. Two years into this litigation and on the eve of trial,
appellants filed their original TCPA motion seeking dismissal only of counts 2–4. In
40
response, the Sanchez parties non-suited those claims and filed a notice of non-
opposition to appellants’ original TCPA motion in order to proceed to trial. The trial
court granted appellants’ original TCPA motion and dismissed counts 2–4 with
prejudice, but appellants filed an amended TCPA motion seeking dismissal of all but
one remaining cause of action. When the trial court denied the amended TCPA
motion, appellants filed this interlocutory appeal. We agree that the trial court did
not abuse its broad discretion in finding that appellants filed the amended TCPA
motion solely to delay and, accordingly, in not moving on to determine whether it
was frivolous as well.
Moreover, it is notable that, while the trial court did not go on to determine
that appellants’ TCPA motion was frivolous, or lacked any basis in law or fact, that
motion was filed in response to Sanchez’s second amended petition, filed in July
2018, two years after its filing of its first amended petition in July 2016, which
asserted materially identical claims. This Court and all our sister courts that have
considered the arguments presented by appellants have determined that the addition
of newly detailed claims or claims based essentially on the same facts and asserted
against the same parties do not constitute new causes of action that can justify the
otherwise untimely filing of a TCPA motion, as shown above.
That all courts which have considered TCPA motions to dismiss filed on
similar grounds have rejected them is strong evidence that appellants’ TCPA claims
41
are indeed frivolous. See Sullivan, 551 S.W.3d at 857–58 (finding defendant’s TCPA
motion not frivolous in part because defendant filed motion “to posit an arguably
meritable legal theory about the applicability of the TCPA”). Accordingly, we
cannot say that the trial court acted without reference to any guiding rules or
principles in concluding that appellants filed their amended TCPA motion solely to
delay the trial proceedings and not to advance any meritorious grounds for dismissal
of the Sanchez parties’ claims and that, therefore, the trial court’s dismissal of
appellants’ amended TCPA motion was arbitrary, unreasonable, and without
reference to guiding principles. See Wallace, 606 S.W.3d at 440. Rather, we
conclude that the trial court did not abuse its discretion in finding that the motion
was solely intended to delay and in awarding costs and attorney’s fees to the Sanchez
parties after denying appellants’ amended TCPA motion. Cf. id. (finding that
circumstances do not support reasonable finding that delay was sole factor in filing
TCPA motion because “other potential reasons” for filing motion existed in record,
including positing “arguably meritable,” nonfrivolous legal theories). Therefore, we
hold that the trial court did not err by awarding costs and attorney’s fees to the
Sanchez parties.
We overrule appellants’ final issue.
42
Conclusion
We affirm the order of the trial court denying appellants’ amended motion to
dismiss the underlying litigation under the TCPA and awarding to the Sanchez
parties their attorney’s fees and costs.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Hightower, and Countiss.
43