Sierra Club v. Andrews County, Texas, Andrews Industrial Foundation and Andrews Chamber of Commerce

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

SIERRA CLUB, §

Appellant, § No. 08-13-00003-CV

v. § Appeal from the

ANDREWS COUNTY, TEXAS, § 109th Judicial District Court
ANDREWS INDUSTRIAL
FOUNDATION, AND ANDREWS § of Andrews County, Texas
CHAMBER OF COMMERCE,
§ (TC# 18,881)
Appellees.
§

OPINION

Sierra Club appeals the denial of its motion to dismiss the claims asserted against it by

Andrews Industrial Foundation, Andrews Chamber of Commerce, and Andrews County, Texas

(Appellees). In a single issue, Sierra Club contends that Appellees’ claims for declaratory

judgment and tortious interference with a contract should have been dismissed pursuant to the

Texas Citizens’ Participations Act (Act). Concluding that Sierra Club is correct, we reverse and

render, in part, and reverse and remand, in part.

FACTUAL AND PROCEDURAL BACKGROUND

This case is related to the on-going legal battle over the disposal of radioactive material in
West Texas.1 It began in 2004 when Waste Control Specialists, LLC (WCS) applied to the Texas

Commission on Environmental Quality (TCEQ) for a license to construct and operate a facility in

Andrews County, Texas for the disposal of low-level radioactive waste.2 Sierra Club requested a

contested case hearing before TCEQ on this application. TCEQ denied Sierra Club’s request and

approved the application in January 2009. Sierra Club sought judicial review of that decision by

filing several suits in Travis County, Texas that were consolidated into one cause.

In May 2009, the citizens of Andrews County voted to issue $75 million in bonds related to

the development and construction of the disposal facility. Andrews County utilized the bond

funds to purchase land and assets associated with the facility that it then leased to WCS in

December 2010. The facility began receiving low-level radioactive waste in late April 2012

when it received permission to do so from TCEQ. Approximately three weeks later, on May 14,

2012, a Travis County district court ruled that TCEQ had erred by denying Sierra Club’s hearing

request regarding WCS’s application, reversed TCEQ’s decision, and remanded the matter to

1
Although most of the battle has been waged in the district courts of Travis County and in the Third Court of
Appeals—as related below—this Court has seen its share of skirmishes. See In re Sierra Club, No. 08-12-00236-CV,
2012 WL 5942912 (Tex.App.--El Paso Nov. 28, 2012, orig. proceeding)(in part denying Sierra Club’s request to
compel the trial court to withdraw a temporary restraining order prohibiting the Sierra Club from seeking injunctive
relief to prohibit shipments of low-level radioactive waste to a disposal facility in Andrews County because Sierra
Club had not moved to transfer venue prior to filing its mandamus petition and the trial court had not had an
opportunity to rule on such a motion); In re Sierra Club, No. 08-12-00282-CV, 2012 WL 5949789 (Tex.App.--El Paso
Nov. 28, 2012, orig. proceeding)(denying Sierra Club’s request to compel the trial court to withdraw order granting
discovery while Sierra Club’s motion to dismiss filed pursuant to Section 27.003 of the Texas Civil Practice and
Remedies Code is pending because Sierra Club failed to show it was entitled to mandamus relief).
2
WCS also applied for a license to construct and operate a facility in Andrews County for the disposal of below-grade
radioactive by-product material. That license was granted by TCEQ in May 2008. Sierra Club sought judicial
review of that decision, but did not prevail in the trial court. See Sierra Club v. Texas Commission on Environmental
Quality, cause number D-1-GN-08-003021. Sierra Club appealed to the Third Court of Appeals in Austin. See
Sierra Club v. The Texas Commission on Environmental Quality and Waste Control Specialists LLC, appellate cause
number. 03-11-00102-CV. The appeal is pending as of the date of this opinion. Although this litigation is not
material to the disposition of this case, we mention it because it provides contextual background.

2
TCEQ to allow Sierra Club to participate in a contested-case hearing.3 Ten days later, Sierra Club

filed a new suit against the TCEQ in Travis County challenging the Commission’s decision

authorizing WCS to begin accepting low-level radioactive waste.4

While that lawsuit was pending, Andrews County sued Sierra Club in late June 2012 in the

state district court of Andrews County. The County—later joined by Andrews Industrial

Foundation and Andrews Chamber of Commerce—brought a claim for tortious interference with

the lease agreement between it and WSC and sought declaratory judgments regarding the validity

of certain provisions of the lease and the applicability of a venue provision in the Texas Water

Code. The County asserted that Sierra Club’s repeated threats to seek injunctive relief

prohibiting the shipment of waste to the disposal facility and to file other suits in Travis County

established the bases for its claims.

Sierra moved for dismissal of Appellees’ claims pursuant to the Act, sanctions, and

attorney’s fees and costs. After Appellees responded, the trial court heard the motion to dismiss

and took it under advisement. Because the trial court did not rule on the motion within thirty days

after the hearing, the motion was denied by operation of law.5 See TEX.CIV.PRAC.&REM.CODE

ANN. § 27.008(a)(West Supp. 2013)(“If a court does not rule on a motion to dismiss under Section

3
TCEQ and WCS have appealed that decision to the Third Court of Appeals in Austin and superseded the trial court’s
judgment. The appeal is pending as of the date of this opinion. See The Texas Commission on Environmental
Quality and Waste Control Specialists LLC v. Sierra Club, appellate cause number. 03-12-00335-CV.
4
See Sierra Club v. Texas Commission on Environmental Quality, cause number D-1-GN-12-001586.
5
Despite this, the trial court issued a written order denying the motion twenty days after the deadline for ruling on the
motion had passed. The order—though included in the record on appeal—is of no effect. Jain v. Cambridge
Petroleum Grp., Inc., 395 S.W.3d 394, 396 (Tex.App.--Dallas 2013, no pet.)(“The trial court’s signing the order
denying the motion [to dismiss pursuant to the Act] after it was already denied by operation of law is legally of no
effect because the motion to dismiss was already denied.”); Teran v. Fryer, 586 S.W.2d 699, 700
(Tex.Civ.App.--Corpus Christi 1979, writ ref’d)(holding that an order purporting to overrule a motion for new trial
that had already been overruled by operation of law was a nullity).
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27.003 [not later than the 30th day following the date of the hearing on the motion], the motion is

considered to have been denied by operation of law and the moving party may appeal.”).

DISMISSAL UNDER THE ACT

In a single issue, Sierra Club contends that the trial court failed to comply with the Act in

denying its motion to dismiss. We agree.

Applicable Law

The Texas Legislature enacted the Act “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, 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 (West Supp. 2013). To achieve these ends, the Legislature provided that if a legal action

is brought in response to a party’s exercise of the right of free speech, the right to petition, or the

right of association, that person may move to dismiss the action. Id. at § 27.003(a). The movant

bears the initial burden to show by a preponderance of the evidence that the action “is based on,

relates to, or is in response to the party’s exercise” of any of the aforementioned constitutional

rights. Id. at § 27.005(b)(1). If the movant satisfies this burden, then the trial court must dismiss

the legal action unless the party who brought the action “establishes by clear and specific evidence

a prima facie case for each essential element of the claim in question.” Id. at §§ 27.005(b)(1),

27.005(c).

The Act does not define the phrases “clear and specific evidence” and “prima facie case.”

Those terms have been defined by case law, however. “Clear and specific evidence” is defined as

“evidence unaided by presumptions, inferences or intendments.” McDonald v. Clemens, 464

4
S.W.2d 450, 456 (Tex.Civ.App.--Tyler 1971, no writ); see also S. Cantu & Son v. Ramirez, 101

S.W.2d 820, 822 (Tex.Civ.App.--San Antonio 1936, no writ). “Prima facie evidence” is defined

as “evidence that, until its effect is overcome by other evidence, will suffice as proof of a fact in

issue.” Duncan v. Butterowe, Inc., 474 S.W.2d 619, 621 (Tex.Civ.App.--Houston [14th Dist.]

1971, no writ). “In other words, a prima facie case is one that will entitle a party to recover if no

evidence to the contrary is offered by the opposite party.” Id., citing Simonds v. Stanolind Oil &

Gas Co., 134 Tex. 332, 136 S.W.2d 207, 209 (1940)(opin. adopted).

Standard of Review

Invoking the argument that “the TCPA is similar to other statutes providing for sanctions,”

Appellees urge us to employ an abuse-of-discretion standard in reviewing a trial court’s order

under the Act. But the proper standard of review is de novo. Rehak Creative Servs., Inc. v. Witt,

404 S.W.3d 716, 724-27 (Tex.App.--Houston [14th Dist.] 2013, pet. denied)(rejecting

abuse-of-discretion standard and instead adopting de novo standard to gauge propriety of trial

court’s actions under the Act). Accordingly, we review de novo whether: (1) the movant satisfied

the initial burden imposed by Section 27.005(b); and (2) the non-movant satisfied the burden

imposed by Section 27.005(c). Id. at 725-27.

Appellees further contend that a non-movant satisfies its burden under Section 27.005(c) if

“the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of

material fact.” However, the purposeful inclusion of a “clear and specific evidence” requirement

indicates that the non-movant must satisfy an elevated evidentiary standard showing “clear and

specific” evidence rather than just “some” evidence to avoid dismissal under Section 27.005(c).

Rehak Creative Servs., 404 S.W.3d at 726. Accordingly, our inquiry is limited to determining “de

5
novo whether the record contains a minimum quantum of clear and specific evidence that, unaided

by inferences, would establish each essential element of the claim in question if no contrary

evidence is offered.” Rehak Creative Servs., Inc., 404 S.W.3d at 727.

DECLARATORY JUDGMENT CLAIMS

As was mentioned above, Andrews County sought two declaratory judgments from the

trial court. One concerned the construction and validity of several provisions of the County’s

lease with WSC and the other mandatory venue under the Texas Water Code. On appeal, Sierra

Club argues, in essence, that neither declaratory judgment action concerns a justiciable

controversy. We agree.

Applicable Law

A declaratory judgment is appropriate only if a justiciable controversy exists as to the

rights and status of the parties and the controversy will be resolved by the declaration sought.

Bonham State Bank v. Beadle, 907 S.W.2d 465, 467 (Tex. 1995). To constitute a justiciable

controversy, a real and substantial controversy involving a genuine conflict of tangible interests

must exist. Id. A justiciable controversy does not exist if a court is called upon to adjudicate

hypothetical or contingent situations or to determine questions not then essential to the decision of

an actual controversy, even though the questions may require adjudication in the future.

Firemen’s Ins. Co. of Newark, N.J. v. Burch, 442 S.W.2d 331, 333 (Tex. 1968). A judicial

decision reached without a case or controversy is an advisory opinion, which is barred by the

separation of powers provision of the Texas Constitution. TEX.CONST. art. II, § 1; see

Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211 (Tex. 2002); Texas Ass’n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993).

6
 Discussion

We begin our discussion by addressing Appellees’ argument that Sierra Club failed to meet

its initial burden under Section 27.005(b) to show that both of Appellees’ declaratory judgment

claims are based on, related to, or in response to Sierra Club’s exercise of its First Amendment

rights. In making this argument, Appellees rely on several California cases concluding that the

plaintiffs’ injuries were caused by an action that was distinct from the protected activity and

therefore not protected by the anti-SLAPP statute. See e.g., Graffiti Protective Coatings, Inc. v.

City of Pico Rivera, 181 Cal.App.4th 1207, 1220, 104 Cal.Rptr.3d 692, 701 (2010)(concluding

that the anti-SLAPP statute did not apply to suit against the city for its failure to use a competitive

bidding process in awarding a painting contract because plaintiff’s claims were based on the city’s

decision to forgo bidding process altogether, not the city officials’ protected deliberations

regarding the bids); City of Cotati v. Cashman, 52 P.3d 695, 702-03 (Cal. 2002)(concluding that

the anti-SLAPP statute did not apply to the city’s state court action for declaratory relief respecting

the constitutionality of a mobile-home park rent stabilization ordinance that the city had filed in

response to a federal court declaratory relief action brought by park owners respecting the same

ordinance because the city’s claims in the state action arose from the underlying controversy

respecting the ordinance and not from the filing of the federal action). But those cases are

inapposite.

Unlike Graffiti Protective Coatings and Cashman, the protected activity here—threating to

enjoin shipment of radioactive waste to WSC’s facilities—is the specific conduct complained of,

from which all the other allegations of wrongdoing emanate and around which they revolve. In

other words, the threat of injunctive relief was the act that led to Appellees’ claims. Because the

7
claims brought by Appellees arose from protected activity, the burden shifted to them under

Section 27.005(c) to establish by clear and specific evidence a prima facie case for each essential

element of their declaratory judgment claims.

1. Lease Agreement

Andrews County asked the trial court to make several declarations regarding certain

provisions of its lease with WSC. Chief among the declarations sought was the following: “that

[the County’s] tenant, WSC, is in compliance with Lease Agreement Section 6.6(b)(iv) providing

that it ‘maintain in full force and effect all Environmental Permits necessary to the operation of the

Leased Assets,’ and that it may lawfully accept waste shipments.”

Sierra Club argues that there is no justiciable controversy regarding the lease because its

conduct cannot give rise to dispute regarding the validity of a lease agreement to which it is not a

party and because there is no dispute between Andrews County and WCS about WCS’s

responsibilities under the lease. Appellees maintain that, notwithstanding that Sierra Club is not a

party to the lease or a third-party beneficiary of the lease, a justiciable controversy exists between

them and Sierra Club over whether WCS complied with its contractual obligations to operate with

all necessary permits. As authority for the proposition that parties to a contract who “agree on the

validity of their contract” can bring a declaratory judgment action against a non-party, Appellees

cite In re Continental Airlines, Inc., 988 S.W.2d 733 (Tex. 1998)(orig. proceeding). But

Appellees’ reliance on Continental Airlines is misplaced.

In Continental Airlines, the issue was whether venue for the underlying

declaratory-judgment actions was mandatory in the counties where the relators were domiciled.

988 S.W.2d at 734. The City of Fort Worth filed suit for a declaratory judgment to have a Tarrant

8
County district court declare its rights under agreements with the City of Dallas as to three airlines

attempting to fly out of Love Field in Dallas. In re Continental Airlines, Inc., 988 S.W.2d at 735.

After their motions to transfer venue to Dallas County were denied, the three airlines filed a

petition for writ of mandamus asserting that venue was mandatory in Dallas County because the

ultimate relief that the City of Fort Worth was seeking was injunctive. Id. at 736. In its

pleadings, the City of Fort Worth sought only a declaratory judgment and never sought any relief

suggesting an injunction. Id. However, the airlines contended that the City of Fort Worth would

be able to obtain a declaratory judgment and then use injunctive remedies to enforce it. Id. The

Texas Supreme Court concluded that venue was proper in Tarrant County because “[t]he mere

possibility that a defendant will disobey the final judgment of a court, causing [a plaintiff] to resort

to enforce its judgment through injunction, does not transform the suit into an injunction suit under

. . . § 65.023(a).” Id. at 736-37. In reaching this conclusion, the court noted that “the pleadings

state a justiciable controversy that may be fully resolved by declaratory judgment.” Id. at 737.

The issue here is not, as it was in Continental Airlines, whether the mandatory venue

provision for injunctions applies in light of the relief sought in the pleadings is purely or primarily

injunctive. Rather, the issue here is whether a justiciable controversy exists between a non-party

to a lease agreement and the two parties to the lease who “agree on the validity of their contract”

but take issue with the conduct of the non-party. Appellees have failed to show that Sierra Club

had a justiciable interest concerning the interpretation of the lease between the County and WCS.

See S. Tex. Water Auth. v. Lomas, 223 S.W.3d 304, 307 (Tex. 2007)(per curiam)(holding that

plaintiffs did not have standing to bring a declaratory judgment action in either a third-party

beneficiary, individual, or associational capacity because there was nothing in the contract

9
between a conservation district and a city concerning rates charged to the city that conferred

“donee- or creditor-beneficiary standing upon the plaintiffs to challenge the contract’s terms.”).

The controversy here centers on the actions taken by Sierra Club to enjoin waste shipments

to WCS’s facilities, not on any action taken by, or contemplated by, WCS regarding its contractual

performance under the lease. Accordingly, we conclude that there is no real and substantial

controversy between Andrews County and WCS involving a genuine conflict as to their interests

in the lease agreement. See Beadle, 907 S.W.2d at 467.

Appellees did not satisfy their burden under Section 27.005(c) to establish by clear and

specific evidence of a prima facie case on each of the elements of its declaratory judgment claim

regarding the validity and construction of the lease agreement.6 Accordingly, the trial court erred

in failing to dismiss this claim.

2. Venue Under the Texas Water Code

The County sought a declaratory judgment that mandatory venue for any suit brought by

Sierra Club to enjoin WCS would lie in Andrews County, not Travis County, pursuant to Section

7.357 of the Texas Water Code. Sierra Club contends that “there is simply no legal controversy

regarding the application or construction of Section 7.357” and therefore “no legal basis for the

declaratory relief requested by [Appellees].” Appellees counter that there is a controversy

regarding the meaning of Section 7.357 because their “financial interests would be threatened in

any suit against WCS” and they therefore “have an interest in litigating issues in their own County

6
Appellees also insist that Sierra Club “failed in its motion to dismiss or at any other time to offer any evidence (let
alone a preponderance of the evidence) to the trial court that the Lease Agreement declaratory-judgment claim is
covered by the [Act][.]” However, the record belies Appellees’ assertion. Sierra Club alleged the following in its
motion to dismiss: “Because Plaintiffs’ claims stem from Sierra Club’s exercise and protection of First Amendment
Rights, Sierra Club moves to dismiss Plaintiffs’ claims, pursuant to the Act. Id. § 27.005(b).” Moreover, as we
noted above, the threat of injunctive relief sought by Sierra was the act that led to Appellees’ claims.
10
pursuant to the statute . . . .” Appellees, however, never raised this argument in the trial court, nor

do they cite any supporting authority for their argument. But more important, there simply is no

live justiciable, controversy regarding the applicability of Section 7.357.

There is no allegation or evidence that Sierra Club has sought judicial relief based on

Section 7.357, nor is there any allegation or evidence that, if Sierra Club were to do so, Appellees

would be parties to that lawsuit. Instead, Appellees—as they so candidly admit in their response

to Sierra Club’s motion to dismiss—seek the trial court’s interpretation of Section 7.357 to

“properly direct[]” “Sierra Club’s future actions.” But, as was noted above, the trial court cannot

render declarations regarding future, hypothetical situations. See Firemen’s Ins. Co., 442 S.W.2d

at 333. Based on the pleadings, there is no live controversy between Appellees and Sierra Club

involving a genuine conflict of tangible interests that would be resolved by the declaration sought

by Appellees.

Appellees did not satisfy their burden under Section 27.005(c) to establish by clear and

specific evidence of a prima facie case on each of the elements of its declaratory judgment claim

regarding Section 7.357 of the Texas Water Code. Accordingly, the trial court erred in failing to

dismiss this claim.

TORTIOUS-INTERFERENCE CLAIM

Appellees do not argue that their claim for tortious interference with the lease agreement is

not based on, related to, or in response to Sierra Club’s exercise of its First Amendment rights.

Rather, Appellees assert that they presented clear and specific evidence of a prima facie case on

each element of their tortious-interference claim. Thus, we need not concern ourselves with

determining whether Sierra Club satisfied its initial burden under Section 27.005(b). Instead, we

11
limit our inquiry to determine de novo whether Appellees met their burden under Section

27.005(c) to establish by clear and specific evidence a prima facie case for each essential element

of their tortious-interference claim. We conclude that they did not.

Applicable Law

The elements of a claim for tortious interference with an existing contract are: (1) the

existence of a valid contract; (2) the defendant’s willful and intentional interference with that

contract; (3) the interference proximately caused the plaintiff’s damage; and (4) the plaintiff

incurred actual damage or loss. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002).

On appeal, Sierra Club does not dispute that the County had a lease agreement with WCS subject

to interference, but does argue that the County did not present clear and specific evidence of a

prima facie case on each of the remaining three elements. We agree.

Discussion

Appellees did not present clear and specific evidence of a prima facie case that they

incurred actual damage or loss. On appeal, Appellees contend that they are entitled to interest

from the four-month delay in receiving $47,137 in revenue from the University of Texas for

disposing of waste. But Appellees did not plead the loss of interest as damages they incurred in

their petition nor did they raise it in their response to Sierra Club’s motion to dismiss. More

importantly, Appellees presented no evidence on the amount of interest that they allegedly lost.

The following statement in the affidavit executed by a consultant for WCS to which Appellees

direct us does not constitute clear and specific evidence of interest lost as a result of a delay: “The

price for disposal of the 633.90 cubic feet of waste from UT was $71.00 per cubic foot, which

equals approximately $47,137 . . . .”

12
 Appellees also contend that they “established enough evidence to support a rational

inference that many incalculable revenues have been lost because Sierra Club’s actions kept other

waste generators from contracting with WCS.” The evidence to which Appellees refer is the

testimony of the county judge of Andrews County that the decision by “a major player” not to send

waste to the disposal facility “could be a lot of money for us . . . .” This testimony does not

constitute clear and specific evidence of a prima facie case that Appellees incurred actual damage

or loss as a result of lost revenue. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84

(Tex. 1992)(lost profits “must be shown by competent evidence with reasonable certainty” and

competent evidence consists of “opinions or estimates of lost profits . . . based on objective facts,

figures, or data from which the amount of lost profits can be ascertained”).

Appellees did not satisfy their burden under Section 27.005(b) to establish by clear and

specific evidence of a prima facie case on each of the elements of its tortious interference claim.

Accordingly, the trial court erred in failing to dismiss this claim.

Sierra Club’s issue is sustained.

DISPOSITION

Appellees contend that “[i]f this Court finds there is no evidence of a particular claim, the

only equitable and appropriate remedy is to remand to the trial court for discovery and further

proceedings” given that Sierra Club has invoked the “judicial machinery to evade the [Act], the

trial court’s [discovery] order, and this Court’s orders related to discovery.” But the question of

whether the trial court should have granted the motion pursuant to the Act is purely one of law

based on the evidence the trial court had before it when disposing of the motion. See

TEX.CIV.PRAC.&REM.CODE ANN. § 27.006(a)(West Supp. 2013)(“In determining whether a legal

13
action should be dismissed under this chapter, the court shall consider the pleadings and

supporting and opposing affidavits stating the facts on which the liability or defense is based.”).

Given this, it is our duty to render the judgment that the trial court should have rendered. See

TEX.R.APP.P. 43.3 (“When reversing a trial court’s judgment, the court must render the judgment

that the trial court should have . . . .”); Staley v. Zimmite Corp., 565 S.W.2d 335, 337

(Tex.Civ.App.--Houston [14th Dist.] 1978, no writ)(“In this case, however, the trial court has

already made the factual determination of the amount of money that would constitute reasonable

attorney’s fees; the question of whether Staley should be awarded those fees is purely one of law.

It is the duty of this court to render the judgment that the trial court should have rendered.”).

Accordingly, we reverse the trial court’s judgment and render judgment granting Sierra Club’s

motion to dismiss the claims brought against it by Appellees.

Sierra Club urges us to award it attorney’s fees and costs and award sanctions against

Appellees or, in the alternative, to remand these issues back to the trial court. As the prevailing

party, Sierra Club is entitled to an award of reasonable attorney’s fees and costs established by the

evidence. See TEX.CIV.PRAC.&REM.CODE ANN. § 27.009(a)(1)(West Supp. 2013)(award of

attorney’s fees mandatory if motion for dismissal granted). If testimony from trial counsel is

clear, direct, positive, uncontroverted, and incapable of being discredited or impeached, testimony

from trial counsel establishes a party’s right to attorney’s fees and costs as a matter of law,

especially when the opposing party had the means and opportunity to disprove the testimony and

failed to do so. See Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990);

Lofton v. Tex. Brine Corp., 777 S.W.2d 384, 386 (Tex. 1989). In such circumstances, it is proper

for an appellate court to render judgment for fees and costs in the amount proved. See Ragsdale,

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801 S.W.2d at 882.

Here, there was uncontested evidence regarding the amount of fees and costs that were

reasonably and necessarily incurred in pursuing Sierra Club’s motion to dismiss. At the hearing

on the motion, Sierra Club introduced into evidence reports detailing fees and expenses and

testimony from its counsel, Marisa Perales, in support of its request for attorney’s fees and costs.

Perales testified that—as shown in the reports admitted without objection—Sierra Club had

incurred $43,180 in attorney’s fees, $6,700 in legal assistant fees, and $9,001.62 in expenses in

defending this lawsuit.7 She also testified to conditional appellate fees, estimating that $7,500

would be expended for this appeal and an additional $17,000 for proceedings at the supreme court.

Although they had the opportunity, Appellees did not question Perales. Because the evidence in

support of attorney’s fees and costs was clear, direct, positive, and uncontroverted and was neither

discredited nor impeached, it conclusively establishes Sierra Club’s entitlement to: (1) $49,980

in legal fees and $9,001.62 in expenses for trial in the present case; and (2) $7, 500 in appellate

attorney’s fees for prevailing in this Court. Accordingly, we render judgment for fees and costs in

those amounts. In addition, if this case proceeds to the Texas Supreme Court and Sierra Club

prevails there, we render judgment awarding Sierra Club additional appellate attorney’s fees in the

amount of $17,000. See Gilbert v. City of El Paso, 327 S.W.3d 332, 337 (Tex.App.—El Paso

2010, no pet.)(recovery of appellate attorney’s fees is conditioned on prevailing on appeal).

We, however, do not reach the same conclusion with respect to Sierra Club’s request that

we render judgment for an award of sanctions against Appellees. Pursuant to the Act, “the court

7
Perales testified that the fees and expenses Sierra Club was seeking also included fees and costs incurred in bringing
the original proceedings identified above in footnote one. Appellees, however, failed to object to Perales’s testimony
on the basis that she failed to segregate fees and expenses among Sierra Club’s various legal proceedings. By failing
to do so, Appellees waived any complaint they may have had. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.
1997); Hruska v. First State Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988).
15
shall award to the moving party . . . 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 . . . .” TEX.CIV.PRAC.&REM.CODE ANN. § 27.009(a)(2). Perales testified that Sierra

Club was seeking $15,000 in sanctions because the county official verifying Appellees’ petitions

was unfamiliar with the factual allegations in the petitions. In essence, Sierra Club was seeking

sanctions against Appellees for filing “groundless” pleadings because the pleadings had no basis in

fact. See TEX.R.CIV.P. 13. But for sanctions to be imposed against a party, the party moving for

sanctions bears the burden to show that the pleadings are not only groundless, but also brought in

bad faith or to harass. See id. Here, Sierra Club did not introduce any evidence conclusively

proving that Appellees filed their lawsuit in bad faith or to harass. The one piece of evidence

Appellees offered—a final judgment rendered in a similar case awarding $15,000 in

sanctions—was not admitted by the trial court. Because Sierra Club did not show as a matter of

law that it was entitled to an award of sanctions against Appellees, we do not render judgment in its

favor, but instead remand that issue back to the trial court for further proceedings.

CONCLUSION

The trial court’s judgment denying Sierra Club’s motion to dismiss is reversed, and

judgment is rendered granting the motion and awarding Sierra Club $49,980 in legal fees,

$9,001.62 in expenses, $7,500 in appellate attorney’s fees, and in addition, $17,000 in appellate

attorney’s fees if Appellant prevails in the Supreme Court of Texas. The issue of sanctions,

however, is remanded back to the trial court.

December 6, 2013
YVONNE T. RODRIGUEZ, Justice

Before McClure, C.J., Rivera, and Rodriguez, JJ.

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