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