Court of Appeals of Texas, Second District, Fort Worth
THE 43RD DISTRICT COURT OF PARKER COUNTY TRIAL COURT NO.
SUDDERTH, C.J.; KERR and PITTMAN, JJ.
T. PITTMAN, JUSTICE
an appeal from the trial court's denial of sanctions
under section 27.009 of the Texas Citizens Participation Act
(TCPA). See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.009 (West 2015). Because the denial was error, but
not harmful error, we affirm.
original proceeding, this court held that the trial court
abused its discretion by denying Appellant Alisa Rich's
motion under the TCPA to dismiss the claims brought against
her by Appellees Range Resources Corporation and Range
Production Company (collectively, Range), and we ordered the
trial court to dismiss the claims. See In re Lipsky,
411 S.W.3d 530, 554 (Tex. App.-Fort Worth 2013, orig.
proceeding), mand. denied, 460 S.W.3d 579, 597 (Tex.
2015). Range sought mandamus relief in the Supreme Court of
Texas, which denied Range's petition. Lipsky,
460 S.W.3d at 597.
the case was remanded to the trial court, it dismissed
Range's claims against Rich and awarded Rich $470, 012.41
in attorney's fees pursuant to the TCPA. In addition to
attorney's fees, Rich filed a motion for sanctions
requesting the imposition of sanctions against Range under
section 27.009(a)(2). She originally sought $3 million in
sanctions but later filed an amended motion seeking $30
million in sanctions against Range. In support of her motion
for sanctions, she provided the trial court with (1) the
opinions of this court and of the Supreme Court of Texas in
the mandamus proceedings; (2) Range Resources
Corporation's Form 10-Ks from December 2014 and December
2015 showing Range's reported net income; (3) the
affidavit of Range's senior vice president that Range had
used as support for its claim for $3 million in damages
against Rich; (4) Range's response to her motion for
attorney's fees; (5) Range's response to her motion
for sanctions; (6) a news release about Range's merger
with another corporation; (7) Range Resources
Corporation's Schedule 14A Proxy Statement from April
2016; and (8) the court reporter's record from the
original hearing on her motion to dismiss and for
start of the hearing on the motion for sanctions, the trial
court stated that the hearing would address not only the
proper amount of sanctions but also whether Rich was entitled
to sanctions at all. Rich's attorney argued that the
award of sanctions against Range was mandatory under section
27.009. In response, Range argued the merits of its claims
that had been dismissed and asserted that there was no
evidence that the imposition of sanctions would deter
"anything because Range has no need to be deterred from
filing similar lawsuits. It hasn't done so." Range
further contended that if the trial court concluded that
sanctions were required to be imposed under the TCPA, the
trial court should award only a nominal amount to Rich.
the hearing, the trial court denied Rich's motion for
sanctions in its entirety. The trial court did not file
findings of fact or conclusions of law, and the trial
court's judgment therefore implies all findings of fact
necessary to support it. See Rosemond v. Al-Lahiq,
331 S.W.3d 764, 766-67 (Tex. 2011); Wood v. Tex.
Dep't of Pub. Safety, 331 S.W.3d 78, 79 (Tex.
App.-Fort Worth 2010, no pet.). The only issue in this appeal
is whether the trial court abused its discretion by denying
Rich's motion for sanctions upon the dismissal of
Range's legal action under the TCPA.
The Award of Sanctions is Mandatory Under Section
of all, this court has previously held that when a legal
action is dismissed under the TCPA, an award of sanctions
against the party who brought the action is mandatory under
section 27.009. Rauhauser v. McGibney, 508 S.W.3d
377, 389 (Tex. App.-Fort Worth 2014, no pet.),
disapproved of on other grounds by Hersh v. Tatum,
526 S.W.3d 462, 468 (Tex. 2017). Accordingly, the trial court
abused its discretion by denying Rich's motion for
sanctions in its entirety. See In re Dep't of Family
& Protective Servs., 273 S.W.3d 637, 642-43 (Tex.
2009) (stating that a trial court has no discretion in
determining what the law is and that if the trial court fails
to properly interpret the law, it abuses its discretion);
Sullivan v. Abraham, 472 S.W.3d 677, 683 (Tex.
App.-Amarillo 2014) ("Refusing to perform a mandatory
duty constitutes an abuse of discretion."),
rev'd on other grounds, 488 S.W.3d 294 (Tex.
2016). However, we also held in Rauhauser that
"the trial court possesses discretion to determine the
sanction amount that is required to deter the party who
brought the legal action from bringing similar actions in the
future." 508 S.W.3d at 389; see also Am. Heritage
Capital, LP v. Gonzalez, 436 S.W.3d 865, 881 (Tex. App.-
Dallas 2014, no pet.) (stating that it was the trial
judge's prerogative to weigh the evidence "in
determining, as a matter of discretion, how large the
sanction needed to be to accomplish its statutory
purpose"), disapproved of on other grounds by
Hersh, 526 S.W.3d at 468.
court abuses its discretion if the court acts without
reference to any guiding rules or principles, that is, if the
act is arbitrary or unreasonable. Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134
S.W.3d 835, 838-39 (Tex. 2004). An appellate court cannot
conclude that a trial court abused its discretion merely
because the appellate court would have ruled differently in
the same circumstances. E.I. du Pont de Nemours & Co.
v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see
also Low, 221 S.W.3d at 620. An abuse of discretion does
not occur when the trial court bases its decision on
conflicting evidence and some evidence of substantive and
probative character supports its decision. Unifund CCR
Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009);
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.
2002) (op. on reh'g).
hearing on Rich's motion for sanctions, Range argued that
it had no need to be deterred from filing future TCPA claims
because it has not filed any other defamation lawsuits
against people who had left negative comments about Range on
news articles posted online. The trial court found
Range's arguments persuasive, and its order contains an
implied finding that Range did not need deterring from filing
similar actions in the future. See Wood, 331 S.W.3d
at 79; see also Kinney v. BCG Attorney Search, Inc.,
No. 03-12-00579-CV, 2014 WL 1432012, at *11 (Tex. App.-Austin
Apr. 11, 2014, pet. denied) ...