Such an award is entirely discretionary if the trial court finds that the motion is frivolous or solely intended to delay. Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 717 (Tex. App.—Dallas 2019, no pet.). "In the absence of a finding that the motion to dismiss was 'filed with the sole intention of delaying the proceedings,' 'an award of attorneys' fees is not authorized by the statute.'"
We review de novo the trial court's ruling on a TCPA motion to dismiss. Pinghua Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 712 (Tex. App.—Dallas 2019, no pet.). Our review entails considering, in the light most favorable to the non-movant, the pleadings and any supporting and opposing affidavits stating the facts on which the claim or defense is based.
Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 717 (Tex. App.-Dallas 2019, no pet.). "Frivolous" is not defined in the TCPA, but courts have noted it contemplates that "a claim or motion will be considered frivolous if it has no basis in law or fact and lacks a legal basis or legal merit."
Sullivan, 551 S.W.3d at 857; see Caliber, 591 S.W.3d at 243 (following Sullivan); Pinghua Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 717 (Tex. App.-Dallas 2019, no pet.) (same)
Generally, we review a trial court's decision to award attorney's fees for an abuse of discretion. Sullivan v. Tex. Ethics Comm'n , 551 S.W.3d 848, 857 (Tex. App.—Austin 2018, pet. denied) ; seeLei v. Nat. Polymer Int'l Corp. , 578 S.W.3d 706, 717 (Tex. App.—Dallas 2019, no pet.) ("An attorney's fees award under section 27.009(b) is entirely discretionary and requires the trial court to find the motion was frivolous or solely intended to delay."). The TCPA does not define "frivolous."
Simply because HUD insured Overlook's mortgage, which was later assumed by Garrison, does not transform the private business negotiations and transactions underlying LJC's claims into a matter of public concern: "[W]hat breach of contract [or fraudulent-inducement] action would not find its genesis in communication between the parties? And to be actionable, how would such communication not also touch upon the economic well-being of the parties?" Id.; see Pinghua Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 715 (Tex. App.—Dallas 2019, no pet.). And the fact that Atlas Point was marketed to active senior adults does not mean that LJC's claims involve a public concern.
We review the trial court's decision to award attorney's fees under the TCPA for an abuse of discretion. Sullivan v. Tex. Ethics Comm'n, 551 S.W.3d 848, 857 (Tex. App.-Austin 2018, pet. denied); see also Pinghua Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 717 (Tex. App.-Dallas 2019, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably or without regard to guiding principles.
Courts that have addressed this issue have considered the TCPA's text, and dictionary definitions, and they have concluded that a TCPA motion to dismiss is frivolous if it has no basis in law or fact and lacks a legal basis or legal merit. Id. at 433; see Marrujo, 2020 WL 7062318, at *11; Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 717 (Tex. App.-Dallas 2019, no pet.); Caliber Oil & Gas, LLC v. Midland Visions 2000, 591 S.W.3d 226, 243 (Tex. App.-Eastland 2019, no pet.); Sullivan, 551 S.W.3d at 857.
We review the decision to award costs and attorney's fees under TCPA section 27.009(b) for abuse of discretion. Pinghua Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 712 (Tex. App.-Dallas 2019, no pet.). We review the amount of fees for legal sufficiency of the evidence.
Courts that have addressed this issue have considered the TCPA's text, and dictionary definitions, and they have concluded that a TCPA motion to dismiss is frivolous if it has no basis in law or fact and lacks a legal basis or legal merit. Id. at 433; see Marrujo, 2020 WL 7062318, at *11; Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d 706, 717 (Tex. App.-Dallas 2019, no pet.); Caliber Oil & Gas, LLC v. Midland Visions 2000, 591 S.W.3d 226, 243 (Tex. App.-Eastland 2019, no pet.); Sullivan, 551 S.W.3d at 857.