Virgilio Avila and Univision Television Group, Inc. v. F.B. Larrea

AFFIRM in Part, REVERSE in Part, and REMAND; Opinion Filed June 23, 2015.

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00631-CV

VIRGILIO AVILA AND UNIVISION TELEVISION GROUP, INC., Appellants
V.
F.B. LARREA, Appellee

On Appeal from the 95th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-11-10828

OPINION
Before Justices Fillmore, Myers, and Evans
Opinion by Justice Fillmore

Appellants Virgilio Avila and Univision Television Group, Inc. (Univision) appeal from

the trial court’s denial of their motion for an award of attorney’s fees, expenses, and sanctions

pursuant to the Texas Citizens Participation Act (TCPA). See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 27.001–27.011 (West 2015). In two issues, appellants contend (1) awards of attorney’s

fees and expenses to them and of sanctions against appellee F.B. Larrea are mandatory under the

TCPA, and (2) the trial court abused its discretion by denying their motion for attorney’s fees

and expenses under the TCPA. We affirm the trial court’s judgment in part, reverse the trial

court’s judgment in part, and remand this cause for further proceedings consistent with this

opinion.
 Background

This appeal arises from a defamation action filed by Larrea against Univision, which

through a subsidiary company owns and operates local broadcast station KUVN Channel 23, and

Avila, a broadcast journalist employed by KUVN. Larrea, a Dallas attorney, asserted in his

petition that defamatory statements were made about him by appellants in two news broadcasts

and on Univision’s internet website (the broadcasts), and that he is entitled to damages. See

Avila v. Larrea, 394 S.W.3d 646, 650 (Tex. App.—Dallas 2012, pet. denied) (Avila I).

The TCPA was enacted in 2011 to “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, 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. The TCPA

provides a means for a defendant, early in the course of a lawsuit, to seek dismissal of claims

related to the exercise of constitutional rights identified in the Act. Id. § 27.003(a). To prevail

on a motion to dismiss filed pursuant to the TCPA, a movant must first show by a preponderance

of the evidence that the legal action “is based on, relates to, or is in response to” the movant’s

exercise of the right of free speech, right to petition, or right of association. Id. § 27.005(b);

Pickens v. Cordia, 433 S.W.3d 179, 183 (Tex. App.—Dallas 2014, no pet.). If the movant meets

this burden, the trial court must dismiss the action unless the plaintiff “establishes by clear and

specific evidence a prima facie case for each essential element of the claim in question.” TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(c). The TCPA provides that it is to be “construed

liberally to effectuate its purpose and intent fully.” Id. § 27.011(b).

Appellants filed a motion in the trial court seeking dismissal of Larrea’s defamation

action against them pursuant to the TCPA. The trial court held a hearing on appellants’ motion

to dismiss and, in an order dated within thirty days after that hearing, stated limited discovery

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should be allowed on certain issues to be completed within ninety days of the date of the order

and that a “continuation of the current hearing shall be set within 30 days thereafter, or as soon

thereafter as this Court’s docket conditions will permit.” Avila I, 394 S.W.3d at 649. Appellants

filed an interlocutory appeal of the trial court’s denial of their motion to dismiss Larrea’s

defamation action against them. Id. In that interlocutory appeal, appellants asserted the trial

court erred by failing to grant their motion to dismiss on the merits and by authorizing discovery

and continuing the hearing on the motion to dismiss. 1 Larrea challenged this Court’s jurisdiction

over that interlocutory appeal. Id. at 650.

We concluded this Court had jurisdiction over that interlocutory appeal and that the trial

court erred by denying appellants’ motion to dismiss on the merits. Id. at 656, 662. We reversed

the trial court’s order denying appellants’ motion to dismiss and rendered judgment dismissing

the case pursuant to the TCPA. Id. at 662. We remanded this case to the trial court “for

consideration of damages and costs pursuant to TCPA section 27.009(a).” Id.; see TEX. CIV.

PRAC. & REM. CODE ANN. § 27.009(a)(1).

Following remand, appellants filed their “Motion for Award of Attorney’s Fees,

Expenses, Sanctions and Court Costs Pursuant to Chapter 27 of the Texas Civil Practice and

Remedies Code” (attorney’s fees motion) in the trial court. In its Memorandum and Order

signed after a hearing on appellants’ attorney’s fees motion, the trial court taxed court costs

against Larrea and denied appellants’ request for attorney’s fees, expenses, and sanctions against

Larrea. 2 Appellants filed this appeal of the trial court’s judgment denying their attorney’s fees

motion.

1
During the pendency of that interlocutory appeal, appellants filed a motion in this Court requesting a stay in the trial court of all discovery
pending further order from this Court. We granted that motion. Avila I, 394 S.W.3d at 652 n.3.
2
Appellants state in their appellate brief that the trial court denied them court costs. However, the trial court’s judgment taxed court costs
against Larrea “pursuant to traditional statutory authority.” See TEX. R. CIV. P. 131 (successful party to a suit shall recover all costs incurred,
except where otherwise provided).

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 Attorney’s Fees, Expenses, and Sanctions

In their first issue, appellants contend the trial court erred in declining to award them their

attorney’s fees and expenses, and to impose a sanction against Larrea, because the TCPA

requires the award of some amount of attorney’s fees and expenses to a defendant successfully

moving to dismiss a claim, and imposition of some sanction against the plaintiff whose claim is

dismissed, when supported by the evidence of record. In their second issue, appellants argue that

even if the TCPA grants a trial court discretion to deny an award of attorney’s fees and expenses

to a defendant successfully moving to dismiss a claim, the trial court abused its discretion by

denying them an award of attorney’s fees and expenses on the record of this case.

Attorney’s Fees and Expenses

Standard of Review

We review the trial court’s decision to grant or deny attorney’s fees for an abuse of

discretion. Ridge Oil Co. v. Guinn Invs., Inc., 148 S.W.3d 143, 163 (Tex. 2004); Inwood Nat’l

Bank v. Wells Fargo Bank, N.A., No. 05-13-01689-CV, 2015 WL 1929251, at *8 (Tex. App.—

Dallas Apr. 29, 2015, no pet. h.). “The fixing of a reasonable attorney’s fee is a matter within

the sound discretion of the trial court, and its judgment will not be reversed on appeal absent a

clear abuse of discretion.” Spector Gadon & Rosen, P.C. v. Sw. Secs., Inc., 372 S.W.3d 244, 251

(Tex. App.—Dallas 2012, no pet.). We also review a trial court’s decision to award or deny

recovery of litigation expenses for an abuse of discretion. Lancer Corp. v. Murillo, 909 S.W.2d

122, 125–26 (Tex. App.—San Antonio 1995, no writ). A trial court abuses its discretion if it

rules without reference to guiding rules or principles. Van Ness v. ETMC First Physicians, No.

14-0353, 2015 WL 1870051, at *1 (Tex. Apr. 24, 2015) (per curiam). A trial court has no

discretion in determining what the law is or in applying the law to the facts. Inwood Nat’l Bank,

2015 WL 1929251, at *4.

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Applicable Law

In pertinent part, the TCPA provides:

(a) If the court orders dismissal of a legal action under this chapter, the court
shall award to the moving party:

(1) court costs, reasonable attorney’s fees, and other expenses incurred in
defending against the legal action as justice and equity may require; and

(2) sanctions against the party who brought the legal action as the court
determines sufficient to deter the party who brought the legal action from bringing
similar actions described in this chapter.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a).

Discussion

In its Memorandum and Order, the trial court concluded that an award of attorney’s fees

and expenses under section 27.009(a)(1) of the TCPA is discretionary, and exercising what it

believed to be its discretionary authority, denied in toto appellants’ request for attorney’s fees

and expenses. Appellants argue the trial court erred because an award of attorney’s fees and

expenses to a prevailing party on a motion to dismiss under chapter 27 is mandatory.

Conversely, appellee argues the trial court was correct in concluding an award of attorney’s fees

and expenses to a prevailing party is not mandatory because section 27.009(a)(1) grants the trial

court discretion to evaluate whether justice and equity require the award of such fees and

expenses.

After the trial court’s Memorandum and Order was signed and this appeal was filed, we

issued our opinion in Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014, pet. filed).

In Cruz, we specifically rejected an argument that an award of attorney’s fees under section

27.009(a)(1) of the TCPA is discretionary. Id. at 522. “Pursuant to the plain wording of the

[TCPA],” successful movants for dismissal “are entitled to an award of attorney’s fees that is

supported by the evidence.” Id. Certain of our sister courts have reached the conclusion that an

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award of court costs, attorney’s fees, and other expenses incurred in defending against the action

is mandatory under section 27.009(a)(1) of the TCPA. See Schimmel v. McGregor, 438 S.W.3d

847, 863 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (because movant established his

entitlement to dismissal under the TCPA, he was entitled to “court costs, reasonable attorney’s

fees, and other expenses incurred in defending against the legal action as justice and equity may

require” under section 27.009(a)(1)); Sierra Club v. Andrews Cnty., 418 S.W.3d 711, 720 (Tex.

App.—El Paso 2013) (award of attorney’s fees is mandatory under section 27.009(a)(1) of the

TCPA if motion for dismissal granted), rev’d on other grounds, No. 14-0214, 2015 WL 2148029

(Tex. May 8, 2015); Fitzmaurice v. Jones, 417 S.W.3d 627, 634 (Tex. App.—Houston [14th

Dist.] 2013, no pet.) (trial court erred by not awarding appellants reasonable attorney’s fees as

requested by appellants and “required by section 27.009(a)”), disapproved on other grounds by

In re Lipsky, No. 13-0928, 2015 WL 1870073, at *4 (Tex. Apr. 24, 2015) (orig. proceeding); see

also Sullivan v. Abraham, No. 07-13-00296-CV, 2014 WL 5140289, at *1 (Tex. App.—Amarillo

Oct. 13, 2014, pet. filed) (section 27.009(a)(1) specifies trial court “shall award” fees and

expenses to moving party if suit is dismissed; those two words “connote a lack of discretion”);

Rauhauser v. McGibney, No. 02-14-00215-CV, 2014 WL 6996819, at *8 (Tex. App.—Fort

Worth Dec. 11, 2014, no pet.) (award of court costs, attorney’s fees, and expenses mandatory

under section 27.009(a) of the TCPA); 3 cf. Combined Law Enf’t Ass’n v. Sheffield, No. 03-13-

00105-CV, 2014 WL 411672, at *11 (Tex. App.—Austin Jan. 31, 2014, pet. filed) (mem. op.)

(“A trial court may decide that justice and equity do not require that costs, fees, or expenses be

awarded . . . .”).

3
See also Hotchkin v. Bucy, No. 02-13-00173-CV, 2014 WL 7204496, at *5 (Tex. App.—Fort Worth Dec. 18, 2014, no pet.) (mem. op.)
(when trial court grants motion to dismiss under the TCPA, “it is required to award ‘court costs, reasonable attorney’s fees, and other expenses
incurred in defending against the legal action as justice and equity may require’”).

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 As successful movants for dismissal of Larrea’s action under the TCPA, appellants were

statutorily entitled to an award of “reasonable attorney’s fees[ ] and other expenses incurred in

defending against the legal action as justice and equity may require.” See TEX. CIV. PRAC. &

REM. CODE ANN. § 27.009(a)(1); Cruz, 452 S.W.3d at 522 (pursuant to plain wording of the

TCPA, successful movants for dismissal “are entitled to an award of attorney’s fees that is

supported by the evidence”); Schimmel, 438 S.W.3d at 863; Sullivan, 2014 WL 5140289, at *1;

see also Rauhauser, 2014 WL 6996819, at *8. We resolve appellants’ first issue in their favor.

In the context of appellants’ second issue, we consider whether the trial court’s failure to

award any attorney’s fees and expenses to appellants was an abuse of discretion; in other words,

we must determine whether the trial court erred in awarding $0 under section 27.009(a)(1) of the

TCPA on the basis that “justice and equity” required that result. Appellants argue the trial court

abused its discretion by denying their attorney’s fees motion where their fee application was

supported by comprehensive billing records and expert testimony, the trial court found their lead

counsel’s billing rate to be reasonable, Larrea filed no written response to their attorney’s fees

motion and presented no evidence at the hearing on that motion, and Larrea “engaged in

meritless motions practice and discovery.” Larrea argues on appeal that, “[g]iven the alleged

claims, defenses, arguments made by counsel, the constitutional rights of all parties, notions of

equity and justice, and the evidence” before the trial court, the trial court, in its sound discretion,

properly awarded appellants no attorney’s fees or expenses.

Section 27.009(a)(1) provides for award of “reasonable attorney’s fees[ ] and other

expenses incurred in defending against the legal action as justice and equity may require.” TEX.

CIV. PRAC. & REM. CODE ANN. § 27.009(a)(1). In addition to the statutory limitation that the

attorney’s fees awarded must be reasonable, the phrase “as justice and equity may require”

places an additional limitation on the trial court’s award of attorney’s fees and other expenses

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requiring that the award be equitable and just. Cruz, 452 S.W.3d at 524; see also Sullivan, 2014

WL 5140289, at *2 (“Appended to the obligation [of the trial court to award the relief

encompassed in section 27.009(a)(1) to a party that successfully moved for dismissal] is the

modifier ‘as justice and equity may require.’”).

Whether the amount of an award of attorney’s fees and other expenses incurred in

defending against the action is equitable and just is left to the sound discretion of the trial court.

Cruz, 452 S.W.3d at 526 (citing Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)); see also

Ridge Oil Co., 148 S.W.3d at 161 (amount of attorney’s fees that are both reasonable and

necessary to litigation of declaratory judgment claim presents question of fact; total amount of

attorney’s fees that are equitable and just presents question of law committed to trial court’s

discretion) (citing Bocquet, 972 S.W.2d at 21). Given the language of section 27.009(a)(1),

reasonable attorney’s fees and other expenses supported by the evidence must be awarded, yet

the fees and expenses awarded “can be no more than what is reasonable but may be less than that

in view of pertinent considerations of justice and equity.” Sullivan, 2014 WL 514089, at *3; see

also Rauhauser, 2014 WL 6996819, at *8. 4

At the time of the hearing of their attorney’s fees motion, appellants sought attorney’s

fees in the amount of $246,453, expenses in the amount of $5,418.39, and contingent appellate

attorney’s fees in the amount of $88,000. 5 Larrea did not file a response or objection to

appellants’ attorney’s fees motion. At the hearing, appellants’ lead counsel testified regarding

4
In Cruz, we concluded that “the language ‘as justice and equity may require’ was added by a senate amendment to the house bill’s version
of section 29.009 to ensure a court could award attorney’s fees that were less than what the attorney typically charges, if appropriate.” Cruz, 452
S.W.3d at 526 (citing House Research Org., Texas House of Representatives, Bill Analysis H.B. 2973 (May 2, 2011)).
5
Appellants’ counsel testified at the hearing on their attorney’s fees motion that $50,000 would be reasonably incurred if the trial court’s
judgment was appealed to this Court, $8,000 would be reasonably incurred if appellants were required to respond to a petition for review filed in
the Texas Supreme Court, and $30,000 would be reasonably incurred if briefing and oral submission before the Texas Supreme Court were
necessary.

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the amounts of attorney’s fees and expenses sought. 6 He further testified that the work

performed on behalf of appellants was necessary in the defense of the action Larrea filed and in

order to resolve the action in appellants’ favor and that the attorney’s fees and expenses incurred

were reasonable and necessary. Documents substantiating appellants’ attorney’s fees and

expenses incurred were admitted in evidence. Larrea did not offer controverting evidence at the

hearing of appellants’ attorney’s fees motion.

The trial court stated in the Memorandum and Order that it had considered and taken

judicial notice of appellants’ attorney’s fees motion, the evidence, and the argument of counsel,

and it found appellants failed to “prove that equity and justice require an award” of attorney’s

fees. The trial court stated attorney’s fees, expenses, and costs shall be awarded against a non-

prevailing respondent “only ‘as justice and equity may require,’” see TEX. CIV. PRAC. & REM.

CODE ANN. § 27.009(a)(1), and the trial court “is not a rubberstamp to a movant’s chapter 27 fee

request, even if the amount proved is reasonable and necessary—fact questions the [trial court]

does not reach here.”

The trial court denied appellants’ attorney’s fees motion, thus awarding appellants no

attorney’s fees or other expenses incurred in defending against the action. Under section

27.009(a)(1), which mandates an award of reasonable attorney’s fees and other expenses that are

equitable and just, the trial court abused its discretion by failing to award to appellants any

attorney’s fees and expenses supported by the evidence. See id.; Cruz, 452 S.W.3d at 522. We

do not suggest that uncontroverted evidence will always justify an award of the amount of

attorney’s fees and other expenses claimed. We recognize a trial court’s discretion to award

attorney’s fees and other expenses in an amount less than or equal to the amount of attorney’s

6
In its Memorandum and Order, the trial court specifically noted it “does not question the hourly rate of [appellants’] lead counsel,” and
that counsel is well known to the trial court “as an exceptional lawyer who enjoys a top-echelon reputation in his areas of practice” and whose
“skill and ability are reflected in the results obtained in this case and many others, both in Texas and elsewhere.”

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fees and other expenses determined by the factfinder to be reasonable and necessary. See Ridge

Oil Co., 148 S.W.3d at 161–62. However, here, the trial court made no finding regarding the

reasonable amount of attorney’s fees and other expenses appellants incurred in defending against

Larrea’s claims, and despite the mandatory language of section 27.009(a)(1) and the evidence in

the record of attorney’s fees and other expenses appellants incurred in defending against Larrea’s

claims, the trial court concluded justice and equity supported no recovery of attorney’s fees and

other expenses by appellants.

The plain language of section 27.009(a)(1) mandates that appellants, as successful

movants for dismissal, are entitled to an award of reasonable attorney’s fees and other expenses

incurred in defending against the action that is supported by the evidence. See Cruz, 452 S.W.3d

at 522. While the statute affords the trial court discretion to adjust downward reasonable

attorney’s fees and other expenses incurred in defending against the action as justice and equity

may require, the statute does not afford discretion to award no attorney’s fees and other expenses

when the amount of reasonable fees and other expenses incurred in defending against the action

are supported by record evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(1). On

this record, we conclude the trial court abused its discretion by awarding no attorney’s fees and

other expenses incurred in defending against the action to appellants. We resolve appellants’

second issue in their favor.

Sanctions

In their attorney’s fees motion, appellants requested that the trial court award sanctions

against Larrea “sufficient to deter [Larrea] from bringing similar actions.” The record reflects no

evidence was offered at the hearing of appellants’ attorney’s fees motion specifically in support

of the request for sanctions. The trial court noted in its Memorandum and Order that “the

amount of sanctions sought by [appellants’] motion is unspecified, and no evidence or argument

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was had on that issue during the hearing [of appellants’ attorney’s fees motion],” and the trial

court found “that no sanctions are necessary to deter Larrea from filing any similar action.” See

TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(2).

Although in their first issue appellants contend sanctions are mandatory under the TCPA,

they do not contest the trial court’s finding “that no sanctions are necessary to deter Larrea from

filing any similar action.” At oral submission of this appeal, appellants’ counsel advised the

Court that appellants were “not interested in sanctions” and “would waive sanctions.” Therefore,

we do not address appellants’ argument that an award of sanctions under the TCPA is mandatory

and that the trial court erred by denying appellants’ request in their attorney’s fees motion for

sanctions against Larrea. Accordingly, we affirm the portion of the trial court’s judgment

denying appellants’ motion for sanctions against Larrea.

Conclusion

We affirm the portion of the trial court’s judgment denying sanctions against Larrea. We

reverse the portion of the trial court’s judgment denying an award of attorney’s fees and other

expenses incurred in defending against the action to appellants. We remand this cause to the trial

court for award to appellants of reasonable attorney’s fees and other expenses incurred in

defending against the action as justice and equity may require pursuant to section 27.009(a)(1) of

the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(1).

/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
140631F.P05

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 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

VIRGILIO AVILA AND UNIVISION On Appeal from the 95th Judicial District
TELEVISION GROUP, INC., Appellants Court, Dallas County, Texas,
Trial Court Cause No. DC-11-10828.
No. 05-14-00631-CV V. Opinion delivered by Justice Fillmore,
Justices Myers and Evans participating.
F.B. LARREA, Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We AFFIRM the trial court’s denial of
sanctions against appellee F.B. Larrea. We REVERSE the trial court’s denial of an award of
attorney’s fees and expenses to appellants Virgilio Avila and Univision Television Group, Inc.
We REMAND this cause to the trial court for award to appellants of reasonable attorney’s fees
and other expenses incurred in defending against the legal action as justice and equity may
require pursuant to section 27.009(a)(1) of the Texas Citizens Participation Act. See TEX. CIV.
PRAC. & REM. CODE ANN. § 27.009(a)(1) (West 2015).

It is ORDERED that appellants recover their costs of this appeal from appellee.

Judgment entered this 23rd day of June, 2015.

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