Caliber Oil & Gas, LLC v. Midland Visions 2000, Roger Henderson, and Toney Henderson
591 S.W.3d 226
Tex. App.2019Background
- Dispute over ownership of 10.6 acres in Midland after various inheritances and conveyances; competing claims by Caliber Oil & Gas, Midland Visions 2000, Roger Henderson, and Toney Henderson.
- Midland Visions contracted to buy interests from three heirs (Whitley, Selmon, Clement) on March 1, 2018; Caliber later purchased deeds from those heirs and filed deeds March 5, 2018; Midland Visions and Caliber both assert competing acquisitions in the public records.
- Caliber paid $60,092.87 in back taxes to remove the property from a tax sale and sued to quiet title and recover a proportionate share of taxes; it also alleged fraudulent records and tortious interference with its realtor contract.
- Midland Visions counterclaimed for tortious interference (contract and prospective business relations); the Hendersons counterclaimed for tortious interference and requested dismissal of Caliber’s claims.
- Caliber moved to dismiss under the Texas Citizens Participation Act (TCPA); the trial court denied the motion, found it frivolous and intended to delay, and awarded Midland Visions $34,872.50 in fees and costs. The Eleventh Court of Appeals affirmed.
Issues
| Issue | Plaintiff's Argument (Caliber) | Defendant's Argument (Midland Visions / Hendersons) | Held |
|---|---|---|---|
| Does the TCPA apply to appellees’ tortious-interference counterclaims and to the Hendersons’ request that Caliber’s claims be dismissed? | Communications were exercise of rights protected by TCPA (association, free speech, petition) so TCPA applies. | Counterclaims arise from private business communications, not protected activity; Hendersons’ pray-for-damages‑denial/request is not a "legal action" under TCPA. | TCPA does not apply; Caliber failed to show protected activity; Hendersons’ dismissal request is not a TCPA "legal action." |
| Did appellees prove by clear and specific evidence a prima facie case on tortious interference? | Appellees failed to meet the TCPA nonmovant burden; counterclaims lack required proof. | Appellees maintain they met prima facie standard as found by trial court. | Not reached on appeal (appellate court declined to decide because TCPA inapplicable); trial court had found Midland Visions met the prima facie burden. |
| Did the trial court err by not awarding Caliber attorney’s fees, costs, or sanctions? | If TCPA dismissal should have been granted, Caliber was entitled to fees and sanctions. | Motion was properly denied; no entitlement to fees for movant. | No error; because motion to dismiss was correctly denied, Caliber was not entitled to fees or sanctions. |
| Was the award of $34,872.50 to Midland Visions for a frivolous/dilatory TCPA motion improper? | Award lacked legal/factual basis; motion was not frivolous. | Motion was frivolous/solely intended to delay; trial court properly awarded fees under TCPA §27.009(b). | Affirmed; trial court did not abuse discretion in finding Caliber’s TCPA motion frivolous and awarding fees. |
Key Cases Cited
- Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370 (Tex. 2019) (describing TCPA purpose and scope)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (procedures and protections under TCPA)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (TCPA application to matters of public concern)
- Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (burden-shifting framework under TCPA)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (holistic pleading review for TCPA applicability)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (private communications can be matters of public concern)
- In re J.Z.P., 484 S.W.3d 924 (Tex. 2016) (substance-over-form in pleading relief)
- BHP Petroleum Co. v. Millard, 800 S.W.2d 838 (Tex. 1990) (when a defensive pleading qualifies as an affirmative claim)
- Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210 (Tex. App.—Houston [1st Dist.] 2014) (need for nexus between communication and protected activity)
- Schmidt v. Crawford, 584 S.W.3d 640 (Tex. App.—Houston [1st Dist.] 2019) (real property communications not necessarily "economic" or "goods" under TCPA)