Summary
The Texas Court of Appeals, Third District, affirmed the trial court’s denial of Scott Ogle’s request for attorney’s fees and costs under the Texas Citizens Participation Act. The court held that denial of a TCPA motion, without more, does not establish that the motion was frivolous, and Ogle presented no evidence or requested findings supporting such a determination. The court also emphasized that any award to a nonmovant under the applicable statute would have been discretionary.
Topics
Practice areas
Questions Presented
- Whether the trial court abused its discretion by denying Ogle attorney's fees and costs under Texas Civil Practice and Remedies Code section 27.009(b).
- Whether the denial of a TCPA motion as to one claim, without an express finding of frivolity, entitles the nonmovant to attorney's fees.
Holdings
- The denial of a TCPA motion, without more, does not establish that the motion was frivolous and does not entitle the nonmovant to attorney's fees.
- Even if the trial court had made a finding that the TCPA motion was frivolous or solely intended to delay, an award of fees to the nonmovant would remain discretionary.
Key quotations
“The mere denial of a TCPA motion, without more, does not constitute a finding that the motion was frivolous.” (at 4)
Factual background
Ogle sued O'Gan for theft of a cell phone and asserted claims for intentional infliction of emotional distress, unjust enrichment, and violation of the Texas Theft Liability Act. O'Gan obtained partial dismissal under the TCPA, but the motion was denied as to Ogle's theft claim. Ogle later sought fees and costs as a nonmovant, arguing that the denial of the TCPA motion as to the theft claim established that the motion was partially frivolous, but he submitted no evidence supporting frivolity.
Procedural history
Ogle sued O'Gan for theft-related claims, including claims under the Texas Theft Liability Act. The trial court partially granted O'Gan's TCPA motion to dismiss, and the prior appeal resulted in a remand for determination of O'Gan's attorney's fees and costs. On remand, Ogle sought attorney's fees and costs on the theory that O'Gan's TCPA motion was partially frivolous. The trial court awarded O'Gan fees and costs, denied Ogle's fee request, and entered final judgment; Ogle appealed.