Laura Elizabeth Ostteen v. James Allen Holmes, Sr.

Affirmed in Part, Reversed and Remanded in Part, and Opinion Filed August
22, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01150-CV

LAURA ELIZABETH OSTTEEN, Appellant
V.
JAMES ALLEN HOLMES, SR., Appellee

On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. DC-23-14702

MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Carlyle
Opinion by Justice Partida-Kipness
Appellant Laura Ostteen appeals from the trial court’s denial of her motion to

dismiss Appellee James Holmes, Sr.’s claims under the Texas Citizens Participation

Act (TCPA). See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. In four issues,

Ostteen asserts: (1) the trial court abused its discretion in sustaining Holmes’s

objections to her declarations and striking Ostteen’s reply and supplemental

declaration; (2) the trial court erred in denying the motion to dismiss; (3) the trial

court erred in concluding Ostteen’s motion to dismiss was frivolous and filed solely

for purposes of delay; and (4) the trial court erred in awarding Holmes attorney’s
fees and costs. We reverse the attorney’s fees award due to insufficient evidence and

remand for a redetermination of those fees. We otherwise affirm the trial court’s

judgment.

BACKGROUND

I. Factual Background

Holmes purchased a vacant lot at 4932 Reiger Avenue in Dallas on August 2,

2023. The lot sits in a heavily-trafficked area of East Dallas and is open on three

sides to Reiger Avenue, Barry Avenue, and Elm Alley. Because of significant

pedestrian and car traffic in the area, the lot has a history of accumulating trash,

debris, and human waste, particularly when not fenced. Prior to Holmes’s purchase,

the City of Dallas had periodically imposed code violations against the property

related to trash, debris, and excessive vegetation. Shortly after his purchase of the

property, Holmes conferred with the city on ways to improve the lot, remove

concerns, and avoid citations. Holmes learned from the city that the overgrown

vegetation (trees and brush) created shade and shelter used by vagrants to rest and

sometimes engage in drug use. Following the city’s advice, Holmes began sending

work crews to cut the vegetation and to remove debris and trash in August 2023.

Holmes scheduled tree and shrub removal to take place on September 6, 2023. On

August 26-27th, Holmes also had workers install a fence on the same footprint of a

prior fence.

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During the August lawn care and fence installation, the workers reported

people would sometimes make derogatory comments or gestures toward the

workers. One of these people was later identified as Ostteen. Sometime in late

August or early September—a few days before scheduled tree removal work was to

take place—Ostteen approached Holmes’s agent who was on the property surveying

the upcoming tree work. According to Holmes, Ostteen confronted the agent in a

hostile manner.

The tree-removal service began work the morning of September 6, 2023. The

workers cut down three small hackberry trees and were tasked with trimming up

several large trees at the back of the lot. Sometime after the work commenced,

Ostteen confronted the tree-removal service and Holmes’s agent. According to

Holmes, Ostteen trespassed on the property while confronting them, stomping

around the lot, touching the trees and fence, all while screaming and cursing. Ostteen

claimed she confronted Holmes’s workers after she caught them “illegally removing

protected trees from the city’s right of way,” and asked to see a permit. “Fearing for

[her] safety,” Ostteen called the police and also contacted City of Dallas arborists

regarding the alleged illegal tree removal. Police arrived, as did city arborists, who

apparently took some measurements of the trees. The confrontation de-escalated and

no action was taken by the police or arborists. Ostteen later posted photographs of

the incident on social media.

–3–
After the September 6th events, Holmes learned of Ostteen’s identity and her

nearby residence at 4926 Reiger Avenue. Holmes learned that during August 2023,

Ostteen had frequently trespassed on the lot at 4932 Reiger Avenue. Ostteen posted

online pictures of herself walking and dancing on the property, sometimes in the

nude, and sometimes holding a human skull replica. Holmes also discovered online

posts in which Ostteen complains of the ongoing changes to the property. According

to Holmes, Ostteen maligns him as greedy and violent and refers to him as an

“avaricious, rapist developer[.]”

II. Procedural History

Holmes subsequently filed suit against Ostteen. His original petition described

Ostteen’s behavior related to 4932 Reiger Avenue, including the events of

September 6th. Holmes brought claims for trespass, public and private nuisance,

and business disparagement. Holmes asserted Ostteen’s trespassory and tortious

behavior had discouraged his contractors from working on the lot and made it

difficult for him to find replacement workers. Holmes asserted he and his employee

had to continue the clean-up and lawn work themselves at additional cost. Holmes

sought actual damages and injunctive relief.

Ostteen answered, generally denying Holmes’s allegations, and moved to

dismiss under the TCPA. Ostteen suggested Holmes’s suit was in response to her

exercise of the right of free speech, right of association, and right to petition on a

matter of public concern—the illegal removal of public trees. Ostteen’s motion to

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dismiss was not accompanied by any legal authority or substantive analysis

regarding application of the TCPA.

Holmes amended his petition twice, removing his public nuisance claims and

some of the references to the events of September 6th. Holmes also contended he

was not seeking to hold Ostteen liable specifically for the events of September 6th,

but for her trespassing, fostering a private nuisance, and business disparagement

activities.

Ostteen later filed a declaration in support of her motion to dismiss. Therein,

Ostteen describes the events leading up to September 6th. She claimed that, worried

about development of the lot and tree removal, she contacted City of Dallas arborists.

Ostteen claimed she was told the trees were protected and their removal would

require a permit. Ostteen admitted walking across the property but asserted she did

no damage. Holmes filed objections to Ostteen’s declaration.

The hearing on Ostteen’s motion to dismiss was set for November 1, 2023.

Holmes filed his response to the motion to dismiss seven days prior to the hearing.

Holmes attached an affidavit in support of his response and suit. Just after 11:00 p.m.

on October 31st, approximately fourteen hours before the hearing, Ostteen filed a

reply to Holmes’s response, largely containing objections to Holmes’s affidavit but

providing little substantive analysis of the TCPA or Holmes’s response. Ostteen

attached a supplemental declaration to this reply in which she challenged Holmes’s

personal knowledge to support his affidavit.

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At the November 1st hearing, Holmes objected to Ostteen’s reply as untimely,

in part because it violated Dallas County Local Rule 2.09, which requires reply briefs

be filed at least three days before the hearing. After the hearing, the trial court signed

an order denying Ostteen’s motion to dismiss. The court found Ostteen’s motion was

frivolous and filed solely for purposes of delay, and awarded Holmes $17,768.73 in

attorney’s fees, plus costs. The court signed a separate order sustaining most of

Holmes’s objections to Ostteen’s declaration and striking Ostteen’s reply and its

attachments as untimely. Ostteen appealed. See TEX. CIV. PRAC. & REM. CODE §

51.014(a)(12) (permitting interlocutory appeal of an order denying a TCPA motion

to dismiss).

STANDARD OF REVIEW

We review de novo a trial court’s ruling on a TCPA motion to dismiss. Dyer

v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet.

denied). In doing so, we consider the pleadings and supporting and opposing

affidavits in the light most favorable to the non-movant. Id. Whether the TCPA

applies to a non-movant’s claims is an issue of statutory interpretation that we also

review de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).

ANALYSIS

In four issues, Ostteen asserts: (1) the trial court abused its discretion in

sustaining Holmes’s objections to her declarations and reply; (2) the trial court erred

in denying the motion to dismiss; (3) the trial court erred in concluding Ostteen’s

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motion to dismiss was frivolous and filed solely for purposes of delay; and (4) the

trial court erred in awarding Holmes attorney’s fees and costs. We address these

issues in turn.

I. Evidentiary Rulings

We first address Ostteen’s arguments the trial court abused its discretion in

sustaining Holmes’s objections to Ostteen’s initial declaration, striking Ostteen’s

reply and objections to Holmes’s evidence, and striking Ostteen’s supplemental

declaration.

We begin by recognizing evidentiary rulings are committed to the sound

discretion of the trial court, and we will not disturb those rulings on appeal in the

absence of an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972

S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without

regard for any guiding rules or principles. Id. An appellate court must uphold the

trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Id.

A. TCPA evidentiary standards

Ostteen first contends the trial court’s rulings on her initial declaration were

erroneous and an abuse of discretion because the TCPA does not contemplate

application of the ordinary rules of evidence. Osteen relies on Equine Holdings, LLC

v. Jacoby, No. 05-19-00758-CV, 2020 WL 2079183, at *4 (Tex. App.—Dallas Apr.

30, 2020, pet. denied) (mem. op.) to assert the summary judgment affidavit standards

do not apply to TCPA cases. However, we need not decide the applicability or

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breadth of Equine Holdings here because Ostteen did not make this complaint in the

trial court.

In neither her briefing nor the hearing on the motion did Ostteen argue the

court should not apply summary judgment evidentiary standards to affidavits

submitted in a TCPA proceeding. Instead, both parties made hearsay objections to

the other’s affidavits. Ostteen herself made objections to Holmes’s affidavit based

on hearsay, relevance, personal knowledge, and competence. Only now at this court

does Ostteen assert such objections are improper. Ostteen’s failure to raise these

complaints at the trial court preserves nothing for review. See Ellis v. Renaissance

on Turtle Creek Condo. Ass'n, Inc., 426 S.W.3d 843, 854 (Tex. App.—Dallas 2014,

pet. denied) (party’s failure to raise applicability of statutory presumption in the trial

court presented nothing for review on appeal); TEX. R. APP. P. 33.1 (requiring a

timely request, objection, or motion that states the grounds for the ruling with

sufficient specificity to make the trial court aware of the complaint to preserve error

for appeal). And, we will not assign error to the trial court after the parties invited

the court to apply these standards. See generally Naguib v. Naguib, 137 S.W.3d 367,

375 (Tex. App.—Dallas 2004, pet. denied) (parties cannot invite trial court to do

something then complain on appeal the trial court committed error in accordance

with that request).

–8–
Accordingly, we determine no abuse of discretion by the trial court in

applying the evidentiary standards asserted by the parties and common to summary

judgment practice.

B. Court’s rulings on Holmes’s objections

Ostteen contends the trial court erred in sustaining Holmes’s objections to

several statements in Ostteen’s initial declaration. We disagree.

Holmes objected to several of Ostteen’s statements as hearsay, speculative,

and irrelevant. Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted and is generally not admissible. TEX. R. EVID. 801(d), 802. A

statement is speculative if it is based on guesswork or conjecture and lacking in

supporting facts. Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 n.5

(Tex. 2012). Speculative testimony has no probative value. See Coastal Transport

Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004). Irrelevant

evidence is not admissible. TEX. R. EVID. 402.

Holmes first objected as hearsay to Ostteen’s statement about her alleged

conversation with a City of Dallas arborist, and his purported assertions the trees at

issue were protected and removal would require a permit. Holmes then objected as

hearsay to Ostteen’s statement that city personnel arrived and informed contractors

the tree removal was illegal and could subject the property owner to fines based on

the size of the trees removed. Holmes further objected as speculative and irrelevant

Ostteen’s statements her September 6th actions were in furtherance of an

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administrative proceeding to stop violation of the law and any difficulty Holmes had

in finding workings was because Holmes was known to ask them to violate the law.

At the trial court, Ostteen made no argument to counter Holmes’s objections,

though she now asserts the statements were material to her state of mind, relevant,

and not speculative. However, we will not assign error based on arguments not

presented to the trial court. See TEX. R. APP. P. 33.1(a); see also Knapp v. Wilson N.

Jones Mem'l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.) (“a

party’s argument on appeal must comport with its argument in the trial court”).1

Even considering Ostteen’s arguments, we conclude the trial court did not

abuse its discretion in sustaining the objections. Ostteen’s statements about what the

city personnel told her regarding the trees, the need for a permit, the alleged illegal

tree removal and its consequences were all hearsay. And, Ostteen’s statements her

actions were in furtherance of an administrative proceeding to stop Holmes’s

violation of the law and her opinions about Holmes’s inability to find workers were

speculative (and conclusory). Ostteen provided no facts to support these statements

and as Ostteen concedes in her brief, whether she invoked an administrative

proceeding is a legal conclusion. The trial court did not abuse its discretion in

sustaining Holmes’s objections to Ostteen’s initial declaration.

1
We note that in the summary judgment context, when a party fails to object to the trial court’s ruling
sustaining an objection to her summary judgment evidence, she has not preserved the right to complain on
appeal about the trial court’s ruling. Beinar v. Deegan, 432 S.W.3d 398, 402 (Tex. App.—Dallas 2014, no
pet.).
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C. Timeliness of reply and supplemental declaration

Ostteen contends the trial court abused its discretion in sustaining Holmes’s

objection to her supplemental declaration and striking her reply, which contained

Ostteen’s objections to Holmes’s declaration. We disagree.

Ostteen’s TCPA motion to dismiss was set for a November 1, 2023 hearing.

Holmes filed his response to the motion to dismiss on October 24, 2023, along with

objections to Ostteen’s initial declaration. Ostteen filed a reply brief on October 31st,

approximately fourteen hours before the hearing. Ostteen attached her supplemental

declaration to her reply. At the hearing, Holmes objected to the reply and the

supplemental declaration, asserting they were untimely based in part on Dallas

County Local Rule 2.09. The trial court later sustained Holmes’s timeliness

objection and struck Ostteen’s reply and attachments, relying in part on Local Rule

2.09.

Rule 2.09 provides, in relevant part:

Except in case of emergency, briefs, responses and replies relating to a
motion (other than for summary judgment) set for hearing must be
served and filed with the Clerk of the Court no later than three working
days before the scheduled hearing. Briefs in support of a motion for
summary judgment must be filed and served with that motion; briefs in
opposition to a motion for summary judgment must be filed and served
at or before the time the response is due; reply briefs in support of a
motion for summary judgment must be filed and served no less than
three days before the hearing. Briefs not filed and served in accordance
with this paragraph likely will not be considered. Any brief that is ten
or more pages long must begin with a summary of argument.

–11–
Local Rule 2.09 grants the trial court discretion whether to consider late-filed

briefs. See Diaz v. D.R. Wright Enterprises, Inc., No. 05-17-00172-CV, 2018 WL

3484227, at *3 (Tex. App.—Dallas July 19, 2018, no pet.) (mem. op.) (summary

judgment); Morales v. Barnes, No. 05-17-00316-CV, 2017 WL 6759190, at *5 (Tex.

App.—Dallas Dec. 29, 2017, no pet.) (mem. op.). Such discretion is consistent with

the wide discretion given trial courts in managing their docket. Diaz, 2018 WL

3484227, at *3; Morales, 2017 WL 6759190, at *5 (trial court’s questions at hearing

indicated her inclination to exercise discretion to rely on Local Rule 2.09 to not

consider documents filed less than three days before TCPA dismissal hearing).

Given the trial court’s broad discretion under Rule 2.09 and its authority to manage

its docket, we conclude the trial court did not abuse its discretion in striking

Ostteen’s reply or her attached supplemental declaration filed the night before the

hearing on the motion to dismiss. See Morales, 2017 WL 6759190, at *5.

Ostteen asserts the consequence in Rule 2.09 for failure to timely a brief—

that the trial court might not consider it—does not apply to a “reply.” We reject

Ostteen’s semantic argument, as the rule expressly commands “replies” must be filed

three days before the hearing. Without the consequence, the rule would be

meaningless for all filings. We also reject Ostteen’s argument Rule 2.09 somehow

conflicts with Section 27.006(a) of the Civil Practice and Remedies Code’s directive

the court “shall” consider the pleadings, evidence, and affidavits. Under Ostteen’s

reading, the trial court would be required to consider any filing, no matter how late.

–12–
This would directly contravene the trial court’s discretion to manage its docket and

the prompt disposition of TCPA motions required by the statute. See TEX. CIV. PRAC.

& REM. CODE § 27.005(a) (requiring ruling on TCPA motion within thirty days of

the hearing). Instead, Local Rule 2.09 fosters the timely consideration and ruling on

TCPA motions to dismiss.

Accordingly, the trial court did not abuse its discretion in striking Ostteen’s

untimely reply brief or the attached supplemental declaration. See Diaz, 2018 WL

3484227, at *3; Morales, 2017 WL 6759190, at *5; see also Garcia v. Semler, 663

S.W.3d 270, 276-78 (Tex. App.—Dallas 2022, no pet.) (applying summary

judgment practice to TCPA motions to dismiss).

D. Conclusion regarding court’s evidentiary rulings

We conclude the trial court did not abuse its discretion in applying the

evidentiary standards asserted by the parties, in sustaining Holmes’s objections to

Ostteen’s declaration, or in striking Ostteen’s reply and its attachments.

Accordingly, we overrule Ostteen’s first issue.

II. Trial Court Did Not Err in Denying Ostteen’s Motion to Dismiss

In her second issue, Ostteen contends the trial court erred in denying her

motion to dismiss under the TCPA. We disagree.

A. TCPA procedures

The TCPA was designed to protect both a defendant’s rights of speech,

petition, and association and a claimant’s right to pursue valid legal claims for

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injuries the defendant caused. Montelongo v. Abrea, 622 S.W.3d 290, 295 (Tex.

2021) (citing TEX. CIV. PRAC. & REM. CODE § 27.002). To accomplish this objective,

the TCPA provides a three-step process for the dismissal of a “legal action” to which

it applies. Id. at 296. First, the defendant must demonstrate the “legal action” is

“based on or is in response to” the defendant’s exercise of the right of association,

right of free speech, or right to petition. Id. (citing TEX. CIV. PRAC. & REM. CODE §§

27.003(a), .005(b)). Second, if the defendant meets that burden, the claimant may

avoid dismissal by establishing “by clear and specific evidence a prima facie case

for each essential element of the claim in question.” Id. (citing TEX. CIV. PRAC. &

REM. CODE § 27.005(c)). Finally, if the claimant meets that burden, the court still

must dismiss the “legal action” if the defendant “establishes an affirmative defense

or other grounds on which the moving party is entitled to judgment as a matter of

law.” Id. (citing TEX. CIV. PRAC. & REM. CODE § 27.005(d)).

In analyzing whether the TCPA applies to a claim, we start by determining

the basis of the legal action as set forth in the plaintiff’s pleadings, which are the

“best and all-sufficient evidence of the nature of the action.” Vaughn-Riley v.

Patterson, No. 05-20-00236-CV, 2020 WL 7053651, at *2 (Tex. App.—Dallas Dec.

2, 2020, no pet.) (mem. op.) (citations omitted). We view the pleadings in the light

most favorable to the nonmovant and favor the conclusion that the claims are not

predicated on protected expression. Wells v. Crowell, No. 05-20-01042-CV, 2021

WL 5998002, at *3 (Tex. App.—Dallas Dec. 20, 2021, no pet.) (mem. op.). “The

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basis of a legal action is not determined by the defendant’s admissions or denials but

by the plaintiff’s allegations.” Id. (quoting Hersh v. Tatum, 526 S.W.3d 462, 467

(Tex. 2017)). We do not “blindly accept” attempts by the movant to characterize the

claims as implicating protected expression. Damonte v. Hallmark Fin. Servs., Inc.,

No. 05-18-00874-CV, 2019 WL 3059884, at *5 (Tex. App.—Dallas July 12, 2019,

no pet.) (mem. op.).

B. Step one analysis

To obtain dismissal under the TCPA, the movant has the threshold burden to

establish the statute applies to the claims against her. See TEX. CIV. PRAC. & REM.

CODE §§ 23.003(a); 27.005(b). As relevant here, this initial burden is met if Ostteen

demonstrates the legal action is based on or in response to her exercise of the right

of free speech, the right to petition, or right of association. See id. §§ 27.005(b)(1).

We first address the right of free speech.

1) Right of free speech

The TCPA defines “[e]xercise of the right of free speech” as “a

communication made in connection with a matter of public concern.” TEX. CIV.

PRAC. & REM. CODE § 27.001(3). “Matter of public concern” is defined, in relevant

part, as a statement or activity regarding “a matter of political, social, or other interest

to the community; or a subject of concern to the public.” Id. § 27.001(7)(B)-(C).

Ostteen contends Holmes’s suit implicates her right to free speech because the

–15–
removal of trees on the property constitutes a “matter of public concern.” We

disagree.

Holmes’s various petitions describe his attempts to clean up the lot at 4932

Reiger Ave, including the removal of three to five small hackberry trees on the lot.

Nothing in his petitions indicate these trees were located on public property. And in

his affidavit in response to Ostteen’s motion to dismiss, Holmes described he had

learned from city code compliance that no permit was required to remove the trees.

Ostteen relies on Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890,

896 (Tex. 2018) to support her assertion the tree removal involves a “matter of public

concern.” In Adams, the supreme court ruled the removal of trees from an HOA’s

common area involved a “matter of public concern.” Id. We find Adams

distinguishable for several reasons. First, Adams involved the pre-2019 version of

the statute. Id. That version of the statute defined “matter of public concern” to

include “an issue related to…environmental, economic, or community well-

being…the government…or…a good, product, or service in the marketplace.” Id.

(citing former TEX. CIV. PRAC. & REM. CODE § 27.001(7)(B)). The court concluded

the defendant’s statements the developer cut down huge areas of trees on land open

to the public in violation of city ordinances were matters of public concern under the

statute. Id.

However, the legislature amended and narrowed the scope of “matter of public

concern” in 2019. Beard v. McGregor Bancshares, Inc., No. 05-21-00478-CV, 2022

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WL 1076176, at *5 (Tex. App.—Dallas Apr. 11, 2022, pet. denied) (mem. op.)

(citing Vaughn-Riley v. Patterson, No. 05-20-00236-CV, 2020 WL 7053651, at *3

(Tex. App.—Dallas Dec. 2, 2020, no pet.) (mem. op.)). The legislature deleted the

“environmental, economic, or community well-being” and “government” language

from the definition. See TEX. CIV. PRAC. & REM. CODE § 27.001(7).

Furthermore, Adams involved a large common area open to the public. While

Ostteen attempts to analogize Holmes’s case, we do not find it comparable. There is

little to indicate the trees at issue are on public property or common areas open to

the public. In various places in his petitions, Holmes describes the trees as being “on

the lot.” Nothing in the petitions or evidence suggests Ostteen or any other person

besides Holmes has any ownership, possessory, or access rights to the lot.

In her declaration and briefing here, Ostteen contended the trees “belong to

the city” or were located in “the city’s right-of-way,” and thus their removal is a

matter of public concern. The pleadings and evidence do not establish the trees

belong to the City of Dallas. Nothing in Holmes’s petitions support this conclusion.

Further, the portions of Ostteen’s declaration remaining after the trial court sustained

Holmes’s objections do not support the trees were city property. And, we find any

statements by Ostteen in her declaration that the trees “belong to the city,” were

located on the city’s right of way, or that their removal was “illegal” to be conclusory

and of no legal weight. Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136

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S.W.3d 227, 232 (Tex. 2004) (conclusory opinion testimony is incompetent,

irrelevant, and cannot support a judgment, even when no objection was made).

Furthermore, even assuming the trees were on a “right of way,” that term has

different meanings. See Texas Elec. Ry. Co. v. Neale, 151 Tex. 526, 531, 252 S.W.2d

451, 454 (1952) (citations omitted). It sometimes is used to describe a right

belonging to a party, a right of passage over any tract, and it is also used to describe

that strip of land which companies (like railroads) take upon which to construct their

road-bed. Id. “Right of way” in Black’s Law Dictionary means the “right to build

and operate a railway line or a highway on land belonging to another, or the land so

used.” Singer v. First Baptist Church, Carrollton, Texas, No. 2-05-361-CV, 2006

WL 1920346, at *4 (Tex. App.—Fort Worth July 13, 2006, no pet.) (mem. op.)

(quoting BLACK’S LAW DICTIONARY 1351 (8th ed. 2004)). Black’s Law Dictionary

also defines “right of way” as “the right to pass through property by another that

may be established by contract, by longstanding usage, or by public authority (as

with a highway), or the strip of land subject to a nonowner’s right to pass through.”

Id. Even if we accepted Holmes’s assertions the trees were located on a city right of

way, it does not support the conclusion the public has any right to occupy or possess

the area, or that removal of a few trees thereon involves a matter of public concern.

Ostteen’s self-serving statements the trees reside in the city’s right of way do not

establish their removal is a matter of public concern.

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We are required to read the pleadings in the light most favorable to Holmes,

and we do not blindly accept attempts by Ostteen to characterize the claims as

implicating protected expression. See Damonte, 2019 WL 3059884, at *5. Upon

review, Holmes’s petitions do not support a conclusion Ostteen’s speech involved a

matter of public concern. And, Ostteen’s evidence does not compel us to reach a

different conclusion.2

2) Right of association

Ostteen also contends Holmes’s suit was in response to Ostteen’s exercise of

the right of association. We disagree.

The TCPA defines “exercise of the right of association” as “to join together

to collectively express, promote, pursue, or defend common interests relating to a

governmental proceeding or a matter of public concern.” TEX. CIV. PRAC. & REM.

CODE § 27.001(2). In her motion to dismiss, Ostteen asserted Holmes’s suit was an

attempt to prevent her from freely associating with neighbors who are also upset by

Holmes’s illegal actions, to wit, the alleged “illegal destruction of the public’s trees.”

There, and in her brief here, Ostteen contends these are matters of public concern.

However, as we have discussed above, we conclude Ostteen has not met her

burden to show the removal of trees on Holmes’s property constitutes a matter of

2
In her appellate brief, Ostteen asserts the “illegal erection of a fence” is another matter of public
concern in support of her right to free speech and her right of association. However, Ostteen did not raise
this ground at trial. She made a single passing reference to alleged code and “historic protections” violations
in her factual background of her answer and motion to dismiss, but did not provide any argument, authority,
or evidence to support an assertion the erection of a fence on private property constitutes a matter of public
concern. There is no evidence to support Ostteen’s naked assertion. We will not entertain it here.
–19–
public concern, as required by the statute. TEX. CIV. PRAC. & REM. CODE §

27.001(2). Further, Ostteen did not assert in her motion to dismiss or in her brief

here that her right of association involved a “governmental proceeding.”3 Even

considering that part of the statute, nothing in the petition or evidence supports any

joining together of persons related to a “governmental proceeding.” Holmes’s

petitions allege gatherings of people on or near the vacant lot, but there are no

allegations these persons were gathering in relation to a “governmental proceeding.”

Similarly, nothing in Ostteen’s declaration supports a gathering of people related to

a “governmental proceeding.” The only possible reference is Ostteen’s statement her

actions on September 6th “were in furtherance of an administrative legal

proceeding.” As we have discussed, though, the trial court struck this statement from

Ostteen’s declaration and we do not disturb that ruling. Even if we consider it, it

does not tie any action by Ostteen to any other persons as related to a “governmental

proceeding.”

Again, we are required to read the pleadings in the light most favorable to

Holmes, and we do not merely accept Ostteen’s attempts to characterize the claims

as related to the right of association. Upon review, Holmes’s petitions do not support

a conclusion his suit was in response to Ostteen’s exercise of the right of association

3
The TCPA defines “governmental proceeding” as “a proceeding, other than a judicial proceeding,
by an officer, official, or body of this state or a political subdivision of this state, including a board or
commission, or by an officer, official, or body of the federal government.” TEX. CIV. PRAC. & REM. CODE
§ 27.001(5).
–20–
as defined in the TCPA. Ostteen’s evidence does not compel us to reach a different

conclusion.

3) Right to petition

Ostteen also contends Holmes’s suit was filed in response to Ostteen’s

exercise of the right to petition. We disagree.

The TCPA’s definition of “exercise of the right to petition” is lengthy and

complex. TEX. CIV. PRAC. & REM. CODE § 27.001(4). In her motion to dismiss,

Ostteen asserted Holmes’s suit was an attempt to prevent Ostteen from

“participat[ing] in governmental and official proceedings—processes to protect the

public’s trees.” On appeal, Ostteen contends her activities implicate the following

provisions: 27.001(4)(A)(ii) (communications pertaining to an official proceeding to

administer the law); 27.001(4)(B) (a communication in connection with an issue

under consideration or review…in a governmental proceeding or official

proceeding); 27.001(4)(C) (a communication reasonably likely to encourage

consideration or review in a governmental proceeding or official proceeding);

27.001(4)(D) (communication reasonably likely to enlist public participation in an

effort to effect consideration of an issue in a governmental proceeding or official

proceeding); and 27.001(4)(E) (any other communication that falls within the

protection of the right to petition government under the United States Constitution

or the state constitution).

–21–
Again, the statute defines “governmental proceeding” as “a proceeding, other

than a judicial proceeding, by an officer, official, or body of this state or a political

subdivision of this state, including a board or commission, or by an officer, official,

or body of the federal government.” TEX. CIV. PRAC. & REM. CODE § 27.001(5). An

“official proceeding” means “any type of administrative, executive, legislative, or

judicial proceeding that may be conducted before a public servant.” Id. § 27.001(8).

Here, Ostteen has not identified any ongoing or likely “official proceeding”

or “governmental proceeding,” other than to assert her contact with City of Dallas

arborists qualifies. The trial court struck those portions of Ostteen’s declaration

concerning her alleged conversations with city arborists. What remains is Ostteen’s

statement that she called the arborist “to advise him of the illegal tree removal.” We

question whether Ostteen instituted a governmental or official proceeding or took

action that would likely lead to such a proceeding.

Ostteen cites California Com. Inv. Grp., Inc. v. Herrington, No. 05-19-00805-

CV, 2020 WL 3820907, at *4 (Tex. App.—Dallas July 8, 2020, no pet.) (mem. op.)

in support. In Herrington, we acknowledged filing a police report may implicate a

person’s right to petition the government. Id. However, Herrington involved the

filing of a police report related to a theft. Here, there is nothing to indicate Ostteen

filed any police report for a crime. Instead, her declaration stated she called the

police on September 6, 2023 simply because she “fear[ed] for her safety.”

–22–
We neither find helpful Ostteen’s reliance on Enterprise Crude GP LLC v.

Sealy Partners, LLC, 614 S.W.3d 283, 295-96 (Tex. App.—Houston [14th Dist.]

2020, no pet.). The pleadings and evidence there indicated the defendants had

applied for permits with the City of Sealy related to their construction plans and met

with the city and plaintiffs regarding those plans. Id. The defendants’ related

communications regarding the permitting and construction were thus “in connection

with an issue under consideration or review by a...governmental body or in another

governmental or official proceeding,” or were “reasonably likely to encourage

consideration or review of an issue by a...governmental body or in another

governmental or official proceeding.” Id. And, the plaintiff’s claims were directly

based on plans that were reviewed in an official proceeding before the city. Id.

Accordingly, the court concluded the communications implicated the exercise of the

right to petition. Id.

While Ostteen asserted she contacted city personnel, there is no evidence of

an actual official or governmental proceeding or that Ostteen’s actions were likely

to lead to such. Holmes on the other hand swore that, prior to the trees’ removal, he

had confirmed with code compliance they could be removed without permit. Holmes

further averred he never received any citation, warning, or any other communication

from city arborists after the removal of the trees. This undercuts Ostteen’s position,

and we conclude she failed to show, by a preponderance of the evidence, her actions

implicated the right to petition.

–23–
However, even assuming Ostteen’s contact with the city involved a

governmental or official proceeding and the right to petition, she has not met her

burden to establish a causal nexus between her actions and Holmes’s suit. In order

to trigger the TCPA’s protection, the legal action must be “based on” or “in response

to” the other party’s exercise of the right of free speech, association, or to petition.

TEX. CIV. PRAC. & REM. CODE § 27.003(a). In other words, the legal action must be

factually predicated on conduct that falls within the TCPA’s definition of exercise

of the right of free speech, petition, or association, or another protected act.” Beach

v. Becker, No. 05-22-00224-CV, 2023 WL 2033779, at *2 (Tex. App.—Dallas Feb.

16, 2023, no pet.) (mem. op.). If this nexus is missing, then the statute does not apply.

Id. The current version of the statute requires more than a tangential relationship

between the alleged protected activity and the lawsuit. See Shepard v. Voss, No. 01-

23-00515-CV, 2024 WL 748396, at *7 (Tex. App.—Houston [1st Dist.] Feb. 22,

2024, no pet.) (mem. op.). We view the pleadings in the light most favorable to the

non-movant, favoring the conclusion that its claims are not predicated on protected

expression. Beach, 2023 WL 2033779, at *2 (emphasis added).

Here, nothing in any of Holmes’s petitions suggests his suit was based on or

in response to any communications Ostteen may have had with the city. In fact, there

are no statements in any of Holmes’s petitions referencing any communication to

–24–
city arborists or the police by Ostteen.4 Instead, Holmes’s allegations and claims

indicate his suit was based on or in response to Ostteen’s trespassing, interference

or harassment of Holmes’s agents and contractors, and disparaging remarks about

Holmes or the property allegedly made to locals or social media followers. And

while Holmes’s lawsuit followed shortly after the events of September 6th, 2023, to

conclude the suit was in response to Ostteen’s communications with the city is to

engage in post hoc ergo propter hoc fallacy. See Soo v. Pletta, No. 05-20-00876-

CV, 2022 WL 131045, at *8 (Tex. App.—Dallas Jan. 14, 2022, no pet.) (mem. op.).

Even if Ostteen met her burden to show an exercise of the right to petition, she has

not shown by a preponderance of the evidence Holmes’s suit was based on or in

response to those actions. Soo, 2022 WL 131045, at *7-8 (in dispute stemming from

neighbor’s conduct regarding a shed, a pipe, and a fence, although the neighbors

made some communications to third parties such as the Coppell Police Department

that related to the disagreement, the neighbors did not show the plaintiff’s claims

were based on or in response to those communications, so the nexus requirement

was not satisfied).

C. Conclusion regarding application of the TCPA

Based on the foregoing, we conclude Holmes’s suit was not based on or in

response to Ostteen’s exercise of the right of free speech, right of association, or

4
We also find it doubtful Holmes’s suit was based on or in response to Ostteen’s communication
with the city, when Holmes’s allegations and affidavit indicate he was already in communications with the
city about improving the lot and removing trees to comply with city codes.
–25–
right to petition as defined in the TCPA. Accordingly, we overrule Ostteen’s second

issue.5

III. Trial Court Did Not Abuse Its Discretion in Finding Ostteen’s Motion
Was Frivolous

In her third issue, Ostteen contends the trial court erred in concluding her

motion was frivolous or brought for purposes of delay. We disagree.

The TCPA allows the trial court to award court costs and reasonable attorney’s

fees to the nonmovant if it finds that a motion to dismiss “is frivolous or solely

intended to delay.” TEX. CIV. PRAC. & REM. CODE § 27.009(b). An award under this

section “is entirely discretionary and requires the trial court to find the motion was

frivolous or solely intended to delay.” Lei v. Nat. Polymer Int'l Corp., 578 S.W.3d

706, 717 (Tex. App.—Dallas 2019, no pet.). “Frivolous” is not defined in the TCPA,

but courts have noted it contemplates that “a claim or motion will be considered

frivolous if it has no basis in law or fact and lacks a legal basis or legal merit.” Id.

(quoting Sullivan v. Tex. Ethics Comm'n, 551 S.W.3d 848, 857 (Tex. App.—Austin

2018, pet. denied)). Furthermore, the cause of action alleged by the nonmovant is

not determinative of whether a TCPA motion to dismiss has a basis in law. Caliber

Oil & Gas, LLC v. Midland Visions 2000, 591 S.W.3d 226, 243 (Tex. App.—

Eastland 2019, no pet.). Rather, prior to filing the motion to dismiss, the movant

5
Because we conclude Holmes’s suit was not based on or in response to Ostteen’s exercise of the
right of free speech, right of association, or right to petition, we need not address steps two and three of the
TCPA analysis (whether Holmes established a prima facie case for his claims and whether Ostteen
established a defense). See TEX. R. APP. P. 47.1.
–26–
must evaluate whether there is a legal basis to assert that the nonmovant’s legal

action is based on, related to, or in response to the movant’s exercise of a right

protected by the statute. Id. (citing TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), .005)

This necessarily involves an analysis of the specific communications underlying the

nonmovant’s claims. Id.

Ostteen’s motion to dismiss was included in her original answer. The motion

consisted of five one-sentence paragraphs. Therein Ostteen tersely asserted

Holmes’s suit was an attempt to prevent her from exercising “her right of public

participation to comment on a matter of public concern—the illegal destruction of

the public’s trees, to participate in governmental and official proceedings—

processes to protect the public’s trees, and to freely associate with neighbors who

are also upset by Plaintiff’s illegal actions.” The motion contained no legal authority

or analysis to explain why the TCPA applied to Holmes’s claims. For example,

Ostteen did not explain why tree removal on Holmes’s property constituted a matter

of public concern under the current version of the statute to support her assertion her

actions involved the exercise of the right of free speech or association. Ostteen also

failed to provide analysis of why Holmes’s suit was based on or in response to

Ostteen’s alleged communications to the city, in support of her claimed right to

petition, considering that Holmes’s various petitions do not even reference Ostteen’s

purported communications.

–27–
Similarly, her eleventh-hour reply, even if considered, provided little

substantive analysis of why Holmes’s claims fell within the TCPA. The reply did

not include any case law supporting Ostteen’s assertions regarding the exercise of

free speech, assembly, or the right to petition. Instead, the bulk of the reply merely

asserted objections to Holmes’s affidavit.6

The question of whether a TCPA motion is frivolous or solely intended to

delay is entirely within the trial court’s discretion. See Lei, 578 S.W.3d at 718. Based

on our review of the record and the relevant legal principles, the trial court could

have concluded Ostteen’s motion lacked a factual or legal basis, or lacked legal

merit. See Caliber Oil & Gas, 591 S.W.3d at 243-44 (upholding a frivolousness

finding and sanction because the movant provided no evidence it had really

evaluated the motion’s merit before filing and included no substantive step-one

analysis); see also McCain v. Lanier, No. 01-21-00679-CV, 2023 WL 5615811, at

*5 (Tex. App.—Houston [1st Dist.] Aug. 31, 2023) (mem. op.) (appellant failed to

preserve for error its TCPA arguments, where motion to dismiss identified no

protected communications, provided no explanation for how plaintiff’s conduct

6
Ostteen contends the contents of the motion are not what the trial looks to in deciding if a motion
is frivolous, citing Jones v. Pierce, No. 01-23-00187-CV, 2023 WL 7778583, at *6 (Tex. App.—Houston
[1st Dist.] Nov. 16, 2023, no pet.) (mem. op.). We disagree Jones stands for such a proposition. The Jones
court stated we look to the factual underpinnings of the case to decide whether the TCPA applies, not that
we ignore the substance of the motion to determine whether it is frivolous. Id. Indeed, the Jones court
mentioned the movant’s meritless arguments as a reason to support the trial court’s finding the motion was
frivolous. Id. To adopt Ostteen’s position would permit movants to file barebones motions to dismiss in
hopes the trial court or appellate court will flesh out the issues and arguments. We decline to adopt such a
procedure.
–28–
infringed on a protected right, and included no analysis of the applicability of the

TCPA), judgment vacated by agreement, No. 24-0108, 2024 WL 2237732 (Tex.

May 13, 2024). Under this record, we cannot conclude the trial court abused its

discretion in concluding Ostteen’s motion was frivolous.

While the trial court expressly found Ostteen’s motion was both frivolous and

solely intended to delay, only one basis is necessary to support an award of attorney’s

fees and costs. Jones, 2023 WL 7778583, at *5. Accordingly, we need not address

whether Ostteen’s motion was solely intended to delay. See id.; TEX. R. APP. P. 47.1.

We overrule Ostteen’s third issue.

IV. Attorney’s Fees and Costs

In her fourth issue, Ostteen contends the trial court erred in awarding

attorney’s and costs against her. We conclude the trial court did not abuse its

discretion in awarding attorney’s fees and costs. However, we conclude the evidence

does not support the fee award, and we remand for further proceedings.

If the trial court finds that a TCPA motion to dismiss is frivolous or solely

intended to delay, the court may award court costs and reasonable attorney’s fees to

the responding party. TEX. CIV. PRAC. & REM. CODE § 27.009(b). An attorney’s fees

award under Section 27.009(b) is entirely discretionary. Lei, 578 S.W.3d at 717. We

review the trial court’s decision to award attorney’s fees under the TCPA for an

abuse of discretion. Id. at 712. We review the amount of fees for legal sufficiency of

the evidence. Id.

–29–
As discussed above, the trial court could have concluded Ostteen’s motion

was frivolous. Accordingly, it was not an abuse of discretion to award attorney’s

fees and costs. See id.; TEX. CIV. PRAC. & REM. CODE § 27.009(b).7

Ostteen next asserts the amount of attorney’s fees awarded were not supported

by legally sufficient evidence. After reviewing the record, we agree.

A claimant seeking an award of attorney’s fees must prove the attorney’s

reasonable hours worked and reasonable rate by presenting sufficient evidence to

support the fee award sought. Rohrmoos Venture v. UTSW DVA Healthcare, LLP,

578 S.W.3d 469, 501–02 (Tex. 2019) (citations omitted). General, conclusory

testimony devoid of any real substance will not support a fee award. Id. at 501.

Sufficient evidence includes, at a minimum, evidence of (1) particular services

performed, (2) who performed those services, (3) approximately when the services

were performed, (4) the reasonable amount of time required to perform the services,

and (5) the reasonable hourly rate for each person performing such services. Id. at

502. Contemporaneous billing records are not required to prove the requested fees

7
Ostteen cites Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007) for the proposition the trial court
was required to assess various factors before assessing sanctions, such Ostteen’s relative culpability, her
net worth, and the equities. However, Low involved sanctions under Chapter 10 of the Civil Practice and
Remedies Code, and the penalties ordered by the trial court there were not based on expenses, attorney’s
fees, or court costs. In contrast, here the award under Section 27.009(b) was expressly for attorney’s fees
and costs. We do not find Low controlling or instructive here. And, the supreme court has held an award of
attorney’s fees under the TCPA does not include considerations of justice and equity. Sullivan v. Abraham,
488 S.W.3d 294, 299 (Tex. 2016). Furthermore, Ostteen did not argue for the application of these standards
at the trial court. See In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (to preserve issue for appellate review,
including constitutional error, party must present to trial court timely request, motion, or objection, state
specific grounds therefor, and obtain ruling).
–30–
are reasonable and necessary. Id. However, billing records are strongly encouraged

to prove the reasonableness and necessity of requested fees when those elements are

contested. Id. Regardless, the proof must be sufficient to permit a court “to perform

a meaningful review of [the] fee application.” El Apple I, Ltd. v. Olivas, 370 S.W.3d

757, 764 (Tex. 2012).

Here, in support of his attorney fee request, Holmes submitted the affidavit of

his attorney Andrea Seldowitz. Therein, Seldowitz states she believes attorney’s fees

of $17,262.50 and litigation-related expenses of $506.23 attributable to her firm’s

legal services were reasonable and necessary considering the relevant factors.

However, Seldowitz provided no discussion or detail of the particular services

performed, who performed those services, when the services were performed, the

hours spent performing the services, or the hourly rate. Seldowitz provided some

information as to a legal assistant who worked on the case and who performed 17.75

hours of work at $250 per hour “assisting me with discovery and motion practice.”

However, ultimately, Seldowitz’s affidavit does not provide the detail necessary to

support the fee award. Seldowitz did not submit any billing records in support of the

fee request. While such records are not mandatory, they might have filled in the

detail required to support the fee request.

Accordingly, we conclude Holmes presented legally insufficient evidence to

support the requested fee award. Rohrmoos Venture, 578 S.W.3d at 501; Ferrant v.

Lewis Brisbois Bisgaard & Smith, L.L.P., No. 05-19-01552-CV, 2021 WL 2963748,

–31–
at *6 (Tex. App.—Dallas July 14, 2021, no pet.) (mem. op.) (law firm presented

legally insufficient evidence to support fee award where firm offered no testimony

or documentary evidence of the specific tasks performed by attorneys and staff or

the amount of time spent on specific tasks).

When the record lacks the requisite details to support a requested fee award,

the appropriate remedy is a remand for further proceedings on the attorney fee

request. Rohrmoos Venture, 578 S.W.3d at 506; In re S.W., No. 05-20-00582-CV,

2022 WL 2071110, at *3 (Tex. App.—Dallas June 9, 2022, no pet.) (mem. op.)

(remanding to trial court for further proceedings on request for attorney’s fees where

attorney provided some evidence of hourly rates and hours worked on case, but did

not provide sufficient evidence of the particular services performed, who performed

the services, when the services were performed, and a reasonable amount of time

required to perform the services); Ferrant, 2021 WL 2963748, at *6 (same).

Accordingly, we remand to the trial court for a redetermination of Holmes’s

attorney’s fees. Rohrmoos Venture, 578 S.W.3d at 506.

Ostteen also argues the affidavit attached to Holmes’s response was not

admitted into evidence and is thus legally insufficient. We note Ostteen did not

object to the substance of Seldowitz’s affidavit or the trial court’s consideration of

it when deciding attorney’s fees issues. See TEX. R. APP. P. 33.1(a). Furthermore, we

have previously held that an oral hearing is not mandated on a TCPA motion to

dismiss because the current version of the TCPA contemplates summary judgment-

–32–
like evidence, such as affidavits. Garcia v. Semler, 663 S.W.3d 270, 276-78 (Tex.

App.—Dallas 2022, no pet.). In Garcia, we did not decide whether the TCPA

permits consideration of live testimony on attorney’s fees. Id. at 277, n.4. Here, we

need not decide whether affidavits in support of attorney’s fees in a TCPA action

must be admitted into evidence to support the award, because even if they are,

remand for a redetermination of attorney’s fees would be appropriate. See Rohrmoos

Venture, 578 S.W.3d at 506 (remanding for further proceedings on the attorney fee

request after determining requesting party failed to provide legally sufficient

evidence to support the fees); Smith v. Smith, 757 S.W.2d 422, 426 (Tex. App.—

Dallas 1988, writ denied) (“When a trial court grants an award of attorney’s fees

without any evidence in the record to support such an award, the proper action on

appeal is to remand that part of the judgment awarding attorney’s fees for a

determination of the reasonableness of the amount of attorney’s fees to be

awarded.”).

Ostteen also contends Seldowitz failed to segregate recoverable and non-

recoverable fees. However, Ostteen did not object to any failure to segregate and has

waived this complaint. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997)

(“[I]f no one objects to the fact that the attorney’s fees are not segregated as to

specific claims, then the objection is waived.”); Jones-Hospod v. Maples, No. 03-

20-00407-CV, 2021 WL 3883884, at *6 (Tex. App.—Austin Aug. 31, 2021, pet.

–33–
denied) (mem. op.) (party waived any complaint about the failure to segregate

attorney’s fees in TCPA case by failing to object to attorney’s affidavit).

Ultimately, we conclude the trial court was within its discretion to award

Holmes’s attorney’s fees and costs. However, Holmes presented insufficient

evidence to support the attorney’s fees awarded. Accordingly, we sustain Ostteen’s

fourth issue in part and remand to the trial court for a reconsideration of Holmes’s

attorney’s fees.8

CONCLUSION

The trial court did not abuse its discretion in sustaining Holmes’s objections

to Ostteen’s declaration. Similarly, the trial court did not abuse its discretion in

striking Ostteen’s late-filed reply and Ostteen’s supplemental declaration. The trial

court did not err in denying Ostteen’s TCPA motion to dismiss. The pleadings and

evidence do not support that Holmes’s suit was based on or in response to Ostteen’s

exercise of the right of free speech, right of association, or right to petition. Further,

the trial court did not abuse its discretion in concluding Ostteen’s motion to dismiss

was frivolous, or in awarding attorney’s fees and costs as permitted by the TCPA.

However, Holmes did not submit legally sufficient evidence to support the attorney’s

fees award. Accordingly, we reverse the trial court’s attorney’s fees award and

8
In Holmes’s brief he moves this Court to dismiss the appeal based on Ostteen’s failure to raise in
the trial court many of the arguments she raised on appeal. Given our disposition, we deny as moot Holmes’s
motion to dismiss the appeal.
–34–
remand for a redetermination of the attorney’s fees, consistent with this opinion. We

otherwise affirm the trial court’s judgment.

/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
231150F.P05 JUSTICE

–35–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

LAURA ELIZABETH OSTTEEN, On Appeal from the 95th District
Appellant Court, Dallas County, Texas
Trial Court Cause No. DC-23-14702.
No. 05-23-01150-CV V. Opinion delivered by Justice Partida-
Kipness. Justices Pedersen, III and
JAMES ALLEN HOLMES, SR., Carlyle participating.
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 REVERSE that portion
of the trial court’s judgment awarding Appellee’s attorney’s fees, and we
REMAND this cause to the trial court for a redetermination of Appellee’s
attorney’s fees, consistent with this opinion.

In all other respects, the trial court’s judgment is AFFIRMED.

It is ORDERED that Appellee JAMES ALLEN HOLMES, SR. recover his
costs of this appeal from Appellant LAURA ELIZABETH OSTTEEN.

Judgment entered this 22nd day of August 2024.

–36–