Michael Kelley v. Carl Satterlee, Dana Marie Martin, Amanda Capanear, Adrian Lindeen, and Ami Lynne Mendoza Glover

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00017-CV

MICHAEL KELLEY, APPELLANT/CROSS-APPELLEE

V.

CARL SATTERLEE, DANA MARIE MARTIN, AMANDA CAPANEAR, ADRIAN
LINDEEN, AND AMI LYNNE MENDOZA GLOVER, APPELLEES/CROSS-APPELLANTS

On Appeal from the 368th District Court
Williamson County, Texas1
Trial Court No. 24-1614-C368, Honorable Sarah Bruchmiller, Presiding

November 20, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and YARBROUGH, JJ.

Michael Kelley appeals the dismissal of his lawsuit against Carl Satterlee under

the Texas Citizens Participation Act (TCPA).2 His two issues contend that the trial court

1 This cause was originally filed in the Third Court of Appeals and was transferred to this Court by

a docket-equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE § 73.001. In the event
of any conflict, we apply the transferor court’s case law. TEX. R. APP. P. 41.3.
2 While Kelley’s suit named other defendants, the trial court granted Satterlee’s TCPA motion to

dismiss and severed Kelley’s claims against Satterlee from his claims against the other defendants. The
present appeal addresses only Kelley’s suit against Satterlee.
erred in granting Satterlee’s motion to dismiss and in awarding Satterlee attorney’s fees

and sanctions. Satterlee filed a cross-appeal seeking an award of attorney’s fees incurred

on appeal. We affirm the trial court’s dismissal order and order on attorney’s fees and

sanctions, and remand for further proceedings consistent with this opinion.3

BACKGROUND

The impetus for Kelley’s lawsuit was certain Facebook posts made on group

pages. None of the posts purport to have been made by Satterlee. Prior to filing suit,

Kelley sent the defendants a “cease and desist” letter seeking removal and retraction of

the posts. This letter did not identify any statement made by Satterlee. Satterlee

responded to this letter contending that he did not make any Facebook posts about Kelley.

Nonetheless, Kelley filed suit against the defendants, including Satterlee.

Kelley’s petition alleged that all five defendants engaged in conduct that defamed

him, tortiously interfered with a business relationship, intentionally inflicted emotional

distress, and engaged in a civil conspiracy against him. Each of these claims were

predicated on the defendants’ claimed defamatory statements. However, nothing in

Kelley’s petition identified any statements, defamatory or otherwise, made by Satterlee.

Instead, Kelley specifically alleged that Satterlee “investigated [Kelley’s] personal and

professional history,” took advantage of his wife’s employment with the Georgetown

Police Department to obtain information about Kelley and others, “posed as an employer

3 We note that the trial court ordered all claims against Satterlee dismissed with prejudice in a

dismissal order and separately issued an order granting Satterlee’s request for attorney’s fees and
sanctions. Because the issues in this appeal apply to both orders, references to the trial court’s “dismissal
order” will refer to these orders collectively. After reviewing the record, we conclude that the two orders
actually dispose of all claims under this cause between Kelley and Satterlee. See Lehmann v. Har-Con
Corp., 39 S.W.3d 191, 200 (Tex. 2001) (when multiple orders collectively dispose of all claims and all
parties, the order determining the last claim is final).
2
of Villages of Berry Creek HOA board members and contacted those board members’

former employers and spouses for phony background checks,” and “contacted [Kelley’s]

ex-wife in order to uncover negative information about [Kelley].”

In response to Kelley’s lawsuit, Satterlee and his codefendants filed a motion to

dismiss under the TCPA. After the motion was set for a hearing, the defendants filed an

amended motion to dismiss that added the affirmative defense of truth and sought

depositions of Kelley’s ex-wives. The trial court granted the request for limited discovery.

After these depositions were taken, the defendants supplemented their amended motion

to dismiss to include the deposition testimony of Kelley’s ex-wives.

The trial court held a hearing on the motion to dismiss. The trial court granted the

motion in part and denied it in part. As to claims against Satterlee, however, the trial court

granted the motion and dismissed those claims with prejudice. In its order dismissing

Kelley’s claims against Satterlee, the trial court highlighted that Kelley’s claims asserted

that “all defendants made the communications at issue and/or conspired with all other

defendants to publish the communications at issue.” On Satterlee’s motion, the trial court

severed Kelley’s claims asserted against Satterlee. The trial court awarded Satterlee

attorney’s fees of $14,507.67 and sanctions of $1,000. From this dismissal order, Kelley

timely appeals. Satterlee cross-appeals.

STANDARD OF REVIEW AND APPLICABLE LAW

The TCPA’s purpose is “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

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rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. &

REM. CODE § 27.002.4 We are directed to construe the TCPA liberally to effectuate this

purpose fully. § 27.011(b). The statute fulfills its purpose by authorizing a motion to

dismiss early in the covered proceedings, subject to expedited interlocutory review.

McLane Champions, LLC v. Hous. Baseball Partners LLC, 671 S.W.3d 907, 914 (Tex.

2023). “[W]e must construe [the TCPA’s] individual words and provisions in the context

of the statute as a whole.” Youngkin v. Hines, 546 S.W.3d 675, 680–81 (Tex. 2018).

We review a ruling on a TCPA motion to dismiss utilizing a three-step, burden-

shifting process: (1) the movant seeking dismissal must demonstrate that a “legal action”

has been brought against it and that the action is “based on or is in response to” an

exercise of a protected constitutional right; (2) if the movant succeeds in making this

demonstration, the burden shifts to the party bringing the legal action to avoid dismissal

by establishing, by clear and specific evidence, a prima facie case for each essential

element of the claim in question; (3) if the nonmovant meets this burden, the burden shifts

back to the movant to justify dismissal by establishing an affirmative defense or other

ground on which it is entitled to judgment as a matter of law. Newstream Roanoke 6.125,

LLC v. Shore, No. 02-22-00506-CV, 2023 Tex. App. LEXIS 6958, at *8–9 (Tex. App.—

Fort Worth Aug. 31, 2023, no pet.) (mem. op.). If the movant fails to meet this initial

burden, the motion to dismiss fails. Id. at *9. However, “[w]hen it is clear from the

plaintiff’s pleadings that the action is covered by the Act, the defendant need show no

more.” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).

4 Further references to provisions of the Texas Civil Practice and Remedies Code will be by

reference to “section __” or “§ __.”
4
We review a trial court’s determination of a TCPA motion to dismiss de novo.

Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex. 2021). We consider

the pleadings, evidence a court could consider under Texas Rule of Civil Procedure 166a,

and supporting and opposing affidavits stating facts on which liability or the defense is

based. § 27.006(a). We are to view the pleadings and evidence in the light most

favorable to the nonmovant. Kassab v. Pohl, 612 S.W.3d 571, 577 (Tex. App.—Houston

[1st Dist.] 2020, pet. denied). Whether the TCPA applies is an issue of statutory

construction, which we also review de novo. S&S Emergency Training Sols., Inc. v. Elliott,

564 S.W.3d 843, 847 (Tex. 2018).

KELLEY’S FIRST ISSUE

By his first issue, Kelley contends that the trial court erred in granting Satterlee’s

TCPA motion to dismiss.

Applicability of the TCPA to Kelley’s Claims

We begin our analysis with the first step of the three-step process under the TCPA:

whether Satterlee established that the TCPA applies to Kelley’s claims. Under the TCPA,

a party may file a motion to dismiss if a legal action is based on or in response to a party’s

exercise of the right of free speech, right to petition, or right of association. § 27.003(a).

Satterlee contends that Kelley’s claims against him are based on or in response to

Satterlee’s exercise of the right of free speech.

In determining whether a legal action should be dismissed, the court shall consider

the pleadings, evidence that could be considered in a traditional summary judgment, and

affidavits. § 27.006(a). The plaintiff’s petition is the “best and all-sufficient evidence of
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the nature of the action.” Hersh, 526 S.W.3d at 467. “The basis of a legal action is not

determined by the defendant’s admissions or denials but by the plaintiff’s allegations.” Id.

A defendant moving for dismissal need only show that the plaintiff’s legal action is based

on or in response to a communication made in connection with a matter of public concern;

not that the communication actually occurred. Id. “When it is clear from the plaintiff’s

pleadings that the action is covered by the Act, the defendant need show no more.” Id.

The phrase “matter of public concern” under the TCPA refers to matters of political,

social, or other concern to the community as opposed to purely private matters. Creative

Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 135 (Tex. 2019). Speech

deals with matters of public concern when it can be fairly considered as relating to any

matter of political, social, or other concern to the community. Snyder v. Phelps, 562 U.S.

443, 453, 131 S. Ct. 1207, 179 L. Ed. 2d 172 (2011). Public matters include, among other

things, commission of, prosecution of, and judicial proceedings relating to crime. Brady

v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017). A matter of public concern includes an

issue related to health, safety, or community well-being. ExxonMobil Pipeline Co. v.

Coleman, 512 S.W.3d 895, 900 (Tex. 2017).

In asserting his cause of action for defamation, Kelley contends, through his live

pleading, that “Defendants, acting in concert, defamed Plaintiff by making false

statements about Plaintiff’s character, personal history, employment history, and other

personal characteristics.” As to each of his other claims, his pleading makes allegations

against the defendants collectively and contends that each defendant is jointly and

severally liable for the damages caused. That Kelley claimed that Satterlee made

defamatory statements is evidenced by his statement in response to Satterlee’s motion
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to dismiss that, “Moving Defendants concede that the online statements were made by

them (except for Mr. Satterlee, whose defamatory statements will be revealed in

discovery).”

However, to be covered by the TCPA, these statements must be made in

connection with a matter of public concern. Statements attributed to the defendants

include an allegation that Kelley committed domestic violence toward his wife and child;

attempted to assault Capanear’s fiancée; installed cameras in a public amenity area to

spy on community members, including minor children; engaged in inappropriate behavior

with students, including those he taught; made racist or bigoted comments toward

students; and possesses a pedophilic attraction toward young boys. We agree with

Satterlee that Kelley’s pleadings allege that Satterlee made these communications and

that these communications were made in connection with a matter of public concern.

Allegations that a local public-school teacher had previously committed violent crimes

and/or acted inappropriately toward students constitute a matter of public concern.

In response to Satterlee’s TCPA motion to dismiss, Kelley essentially takes the

unusual position of arguing for us to liberally construe his petition as not presenting a

cause of action against Satterlee. In his appellate brief, Kelley argues that “[n]one of

Satterlee’s filings . . . identify any communications by Satterlee, and there is no impact on

Satterlee’s right to freedom of expression that would qualify him to move [for dismissal]

under the TCPA.” Kelley also contends that “Satterlee specifically conceded that he did

not make any Facebook comments and that there is no evidence, including the Petition,

of any comments or other statements that he made.” However, as Satterlee contends in

his brief, “Kelley cannot plead that Satterlee was responsible for making defamatory
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statements causing his alleged injury and then try to avoid the use of the TCPA by arguing

out of the other side of his mouth that because there were no statements [made] by

Satterlee[,] the TCPA does not apply.” The cases cited by Kelley are distinguishable in

that each of them involves a situation where the claims asserted did not allege that the

defendants made a statement. See Davis v. Weston, No. 03-22-00378-CV, 2024 Tex.

App. LEXIS 8457, at *20–21 (Tex. App.—Austin Dec. 6, 2024, no pet.) (mem. op.) (TCPA

does not apply to conduct); Lugo v. Sanchez, No. 03-21-00058-CV, 2021 Tex. App.

LEXIS 9222, at *13 (Tex. App.—Austin Nov. 12, 2021, pet. denied) (mem. op.) (TCPA not

applicable when plaintiff’s claims do not implicate defendant’s communications); Sullivan

v. Tex. Democratic Party, No. 03-19-00936-CV, 2021 Tex. App. LEXIS 2593, at *15–16

(Tex. App.—Austin Apr. 6, 2021, pet. denied) (mem. op.) (same); Encore Enters. v.

Shetty, No. 05-18-00511-CV, 2019 Tex. App. LEXIS 3431, at *9 (Tex. App.—Dallas Apr.

29, 2019, pet. denied) (mem. op.) (same). Here, Kelley’s claims that the “[d]efendants,

acting in concert, defamed Plaintiff by making false statements” clearly alleges that

Satterlee made the allegedly defamatory statements. And, as we decided above, these

communications were made in connection with a matter of public concern.

For the foregoing reasons, we conclude that Satterlee demonstrated that the legal

action brought against him by Kelley is based on or in response to his exercise of a

protected constitutional right.

Clear and Specific Evidence of Each Essential Element

Having determined that Satterlee met his burden to show that Kelley’s claims are

based on or in response to his free speech rights, we must now assess whether Kelley

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met his burden to present clear and specific evidence of a prima facie case of each

essential element of his claims against Satterlee.5 As all of Kelley’s claims depend on his

allegation that the defendants defamed him, we examine the evidence that Kelley

presented of each essential element of his defamation claim.

The elements of defamation are (1) the defendant published a false statement; (2)

that defamed the plaintiff; (3) with the requisite degree of fault regarding the truth of the

statement; and (4) damages resulted, unless the statement constitutes defamation per

se. D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 434 (Tex. 2017).

Kelley does not meet his burden to make a prima facie case for the first of these

elements: that Satterlee published a false statement. Kelley’s defamation claim simply

asserts that Satterlee, acting in concert with the other defendants “defamed [Kelley] by

making false statements . . . .” However, the specific allegations regarding Satterlee that

are contained in Kelley’s pleadings do not allege that he published any statement. 6 To

be actionable, the defamation must be attributed to the defendant. Western Mktg. v. AEG

Petro., LLC, 616 S.W.3d 903, 917–18 (Tex. App.—Amarillo 2021, pet. denied) (citing

Bedford v. Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam)). The lack of any

5 Once Satterlee makes an initial showing by a preponderance of the evidence that Kelley’s
defamation suit is based on his exercise of free speech, the trial court must dismiss the action unless Kelley
establishes a prima facie case for each essential element of the claim by clear and specific evidence.
§ 27.005(c); Youngkin, 546 S.W.3d at 679.

6 Kelley’s pleading alleges that Satterlee investigated Kelley’s personal and professional history in

an attempt to find any evidence to support each Defendant’s defamatory statements about Kelley, took
advantage of his wife’s employment with the Georgetown Police Department to access the Department’s
computers and databases to find information about the Villages of Berry Creek HOA board members (of
which Kelley was President), posed as an employer of Villages of Berry Creek HOA board members and
contacted those board members’ former employers and spouses for phony employment background
checks in order to uncover negative information about the board members, and contacted Kelley’s ex-wife
to uncover negative information about him. None of these specific allegations contend that Satterlee made
or published any statement about Kelley.
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statement by Satterlee is further evidenced by Kelley’s response to Satterlee’s motion to

dismiss, in which Kelley states that “[n]either the Motion [to dismiss] nor the

Supplement[al motion] identify any of Mr. Satterlee’s communications on which the

petition is based.” He goes on to contend that “[b]ecause Defendant Satterlee has failed

to identify any protected communication that he made that is the basis for the petition, the

Motion must be denied as to Defendant Satterlee.” However, this argument reverses the

burden. As the defendant, Satterlee can rely on the allegations made by Kelley to

establish that Kelley’s claims are based on or related to Satterlee’s exercise of his right

of free speech but he does not bear the burden to “identify any protected communication

that he made . . . .” (emphasis omitted). Rather, after Satterlee showed that the TCPA

applied to Kelley’s claims, it was Kelley who bore the burden to present clear and specific

evidence of each essential element of his claims. Nothing in Kelley’s pleading or evidence

identifies any allegedly defamatory statement made by Satterlee. In fact, in the hearing

on Satterlee’s attorney’s fees, Kelley admitted that, after taking Satterlee’s deposition,

“we don’t have a claim against him, and the case [against Satterlee] is over.” Because

Kelley has not identified any statement published by Satterlee, he likewise cannot

establish the remaining three elements of his defamation claim. Thus, we conclude that

the trial court did not err in granting Satterlee’s TCPA motion to dismiss.

Timeliness of Supplemental Motion to Dismiss

Kelley further raises the issue of the timeliness of the defendants’ supplemental

motion to dismiss. Assuming without deciding that the defendants, including Satterlee,

untimely filed their supplemental motion, Kelley contends that the affirmative defense of

truth was waived because it was not asserted by a timely filed pleading. Because we
10
conclude that Kelley does not meet his burden to present clear and specific evidence of

a prima facie case of each essential element of his claims against Satterlee, we need not

address the third step in the TCPA analysis: whether Satterlee has established an

affirmative defense or other ground on which he is entitled to judgment as a matter of law.

Conclusion

For the foregoing reasons, we conclude that the trial court did not err in granting

Satterlee’s TCPA motion to dismiss and overrule Kelley’s first issue.

KELLEY’S SECOND ISSUE

By his second issue, Kelley contends that the trial court abused its discretion in

awarding Satterlee $14,507.67 in attorney’s fees and $1,000 in sanctions under the

TCPA. However, a successful motion to dismiss under the TCPA requires the trial court

to grant the moving party “court costs and reasonable attorney’s fees incurred in

defending against the legal action” and allows that it may award “sanctions against the

party who brought the legal actions as the court determines sufficient to deter” future

actions that violate the TCPA. § 27.009(a). Beyond contending that Satterlee is not

entitled to attorney’s fees because his motion to dismiss should have been denied, Kelley

contends that Satterlee failed to prove the amount of reasonable and necessary

attorney’s fees and that the trial court erred in imposing sanctions against Kelley.

Attorney’s Fees

When, as here, the applicable statute mandates that the prevailing party shall

recover attorney’s fees, the award of fees is not discretionary. Hoelscher v. Kilman, No.

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03-04-00440-CV, 2006 Tex. App. LEXIS 1351, at *10 (Tex. App.—Austin Feb. 16, 2006,

no pet.) (mem. op.); see § 27.009(a)(1) (when TCPA motion to dismiss is granted, trial

court “shall award . . . reasonable attorney’s fees incurred in defending against the legal

action . . .”). “However, before a court can award attorney’s fees, the party must prove

that they are reasonable and necessary.” Rohrmoos Venture v. UTSW DVA Healthcare,

LLP, 578 S.W.3d 469, 487 (Tex. 2019); Hoelscher, 2006 Tex. App. LEXIS 1351, at *11

(citing Manon v. Tejas Toyota, Inc., 162 S.W.3d 743, 75 (Tex. App.—Houston [14th Dist.]

2005, no pet.). The reasonableness of the fees is generally a question of fact and rests

within the sound discretion of the trial court. Landa v. Rogers, No. 03-21-00097-CV, 2023

Tex. App. LEXIS 2069, at *25 (Tex. App.—Austin Mar. 30, 2023, no pet.) (mem. op.). The

party seeking attorney’s fees must prove the amount and reasonableness of the fees

sought, which must include documentation of the services provided, who provided them

and at what hourly rate, when they were performed, and how much time the work

required. Id. (citing El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 762–63 (Tex. 2012)). The

proponent of the award of attorney’s fees should first establish the lodestar amount: the

calculation of the reasonable hours spent on the case by counsel multiplied by a

reasonable hourly rate for the attorney and his staff. Rohrmoos Venture, 578 S.W.3d at

494. The lodestar amount is “presumptively reasonable.” Id. at 496. When a lawsuit

involves multiple claims or parties, the proponent of attorney’s fees must segregate

recoverable fees from those incurred by parties or on claims for which fees are not

recoverable. Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 143

(Tex. App.—Houston [14th Dist.] 2009, pet. denied). However, an estimate of the relative

time spent on recoverable versus nonrecoverable time may be sufficient to establish

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segregation of the fees sought. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314

(Tex. 2006). When evidence of attorney’s fees is clear, positive, and could have been

readily controverted but was not refuted by the party opposing the award of attorney’s

fees, the amount of attorney’s fees are established as a matter of law. Hoelscher, 2006

Tex. App. LEXIS 1351, at *12 (citing Ragsdale v. Progressive Voters League, 801 S.W.2d

880, 882 (Tex. 1990)). We review a trial court’s decision to grant or deny attorney’s fees

under an abuse of discretion standard, and we review the amount awarded under a legal

sufficiency standard. Id. at *9–10 (citing Allison v. Fire Ins. Exch., 98 S.W.3d 227, 262

(Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m. by agr.)).

In the present case, Satterlee presented evidence of the lodestar amount of his

attorney’s fees. Kelley did not object to Satterlee’s affidavit and itemization of his

attorney’s fees. This evidence was clear, positive, and could have been readily

controverted, but Kelley did not challenge this evidence by cross-examination of

Satterlee’s counsel or by other evidence.7 Consequently, the lodestar amount of

Satterlee’s attorney’s fees was established as a matter of law. See id. at *12 (“Evidence

of attorney’s fees that is clear, direct, and uncontroverted is taken as true as a matter of

law, especially where the opposing party had the means and opportunity of disproving

7 Kelley contends for the first time in his reply brief that he was afforded insufficient time to
controvert Satterlee’s counsel’s affidavit because Kelley did not receive it until the night before the hearing.
While Kelley’s counsel noted when the affidavit was received, he did not contend that the late receipt
prevented him from contesting the evidence. Nor did he request a continuance.

Also, for the first time in his reply brief, Kelley points to redactions contained in the billing records
submitted with Satterlee’s counsel’s affidavit as impugning whether these records are clear, positive, and
controvertible. Kelley did not make this argument to the trial court. Further, while Satterlee did not identify
the reason for the redactions at the hearing, on appeal, he explains that he “removed or reduced items that
were not recoverable.” A review of the records allows for a reasonable conclusion that this was the purpose
of the redactions and reductions. Further, Kelley acknowledges that these redacted entries were not
included in the total fees sought by Satterlee.
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the evidence but did not.”). Kelley also did not object to or contest Satterlee’s counsel’s

contention that the appropriate amount of Satterlee’s attorney’s fees is an apportionment

of one-third of the attorney’s fees charged to the three defendants represented by

Satterlee’s counsel.8 An estimate of attorney’s fees incurred on recoverable tasks is

sufficient for segregation. Chapa, 212 S.W.3d at 314. Kelley voiced no objection to

Satterlee’s evidence of the attorney’s fees he incurred in defending against Kelley’s suit

and Kelley presented no contrary evidence. We conclude that there was sufficient

evidence to support the trial court’s award of Satterlee’s reasonable and necessary

attorney’s fees in the amount of $14,507.67.

Sanctions

Sanctions are a subset of damages and costs that are awardable under the TCPA.

See § 27.009. A trial court may award sanctions it deems “sufficient to deter the party

who brought the legal action from bringing similar actions” in the future. § 27.009(a)(2).

This Court reviews sanction awards under an abuse of discretion standard. Serafine v.

Blunt, No. 03-23-00046-CV, 2024 Tex. App. LEXIS 5209, at *12 (Tex. App.—Austin July

24, 2024, no pet.) (mem. op.) (citing Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007)).

The trial court noted that sanctions were justified by Kelley’s admission in

pleadings and in open court that he had no evidence of any defamatory comments made

by Satterlee. The trial court acted within its discretion to sanction Kelley for bringing a

8 Contrary to Kelley’s contention in his brief, Satterlee’s counsel specifically stated at the hearing

regarding attorney’s fees that “there’s no way to segregate the work between at least my three defendants.
So[,] I’m asking the Court to award one-third of that amount [the lodestar amount for all three defendants],
which would be [$]14,507.67, to Mr. Satterlee.” Kelley voiced no objection to this approach and did not
argue before the trial court that Satterlee’s affidavit would allow for a more exacting segregation of fees.
14
defamation suit against Satterlee when Kelley could not identify any defamatory

statement made by Satterlee. As to the amount of the sanction, Satterlee requested

$50,000. However, the trial court awarded the significantly smaller sum of $1,000. The

trial court stated in its order granting sanctions that the $1,000 amount “is sufficient to

deter Kelley from bringing similar actions . . . .” Kelley has not established that the trial

court abused its discretion by imposing $1,000 in sanctions against him.

Kelley argues that Satterlee is not entitled to sanctions because he did not

specifically plead for them. However, the applicable statute provides that sanctions may

be awarded at the court’s discretion as a deterrence against the plaintiff bringing similar

suits in the future. § 27.009(a)(2). Kelley identifies no authority that requires a movant

under the TCPA to specifically request sanctions.

Conclusion

We conclude that Kelley has not established that the trial court abused its

discretion in awarding Satterlee $14,507.67 in attorney’s fees and imposing $1,000 in

sanctions against Kelley.

SATTERLEE’S CROSS-POINT

Satterlee filed a cross-appeal contending that the trial court abused its discretion

in not awarding him appellate attorney’s fees. Kelley’s sole response is that the trial court

erred in granting Satterlee’s motion to dismiss, so he was not entitled to appellate

attorney’s fees. We have previously decided that the trial court properly granted

Satterlee’s motion to dismiss.

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As previously discussed, because Satterlee successfully moved to dismiss

Kelley’s claims against him under the TCPA, the trial court was required to award

Satterlee “court costs and reasonable attorney’s fees incurred in defending against the

legal action . . . .” § 27.009(a)(1). The transferor court has held that when a party who is

entitled to attorney’s fees under an applicable statute presents uncontroverted evidence

of anticipated appellate attorney’s fees, it is an abuse of discretion for the trial court not

to award such fees. See Hoelscher, 2006 Tex. App. LEXIS 1351, at *15 (trial court

abused discretion by not awarding appellate attorney’s fees when mandated by statute

and uncontroverted evidence of fees presented); see also Lee v. Perez, 120 S.W.3d 463,

469–70 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (trial court abused discretion by

awarding no appellate attorney’s fees after receiving uncontested evidence of attorney’s

fees). “The party seeking attorneys’ fees bears the burden of proof and must supply

enough facts to support the reasonableness of the amount awarded.” Yowell v. Granite

Operating Co., 620 S.W.3d 335, 354 (Tex. 2020). Because contingent appellate fees

have not yet been incurred, the party seeking to recover these fees must provide expert

“opinion testimony about the services it reasonably believes will be necessary to defend

the appeal and a reasonable hourly rate for those services.” Id. at 355.

In the present case, because the trial court granted Satterlee’s motion to dismiss,

the trial court abused its discretion in failing to award him appellate attorney’s fees.

§ 27.009(a)(1); Hoelscher, 2006 Tex. App. LEXIS 1351, at *15; Lee v. Perez, 120 S.W.3d

463, 469–70. Satterlee supported his request for attorney’s fees with expert testimony in

the form of an affidavit from his attorney, who testified to his qualifications, experience,

and familiarity with the reasonable, usual, and customary attorney’s fees charged in

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“Williamson, Travis Counties, and surrounding counties for a case of this type.” He

testified to his hourly rate and the hourly rate of his associate and legal assistants. As to

contingent appellate fees, he stated that Satterlee will incur $12,000 in reasonable and

necessary attorney’s fees in the event of an appeal with an additional $6,000 if oral

argument is requested. He also concluded that Satterlee would incur an additional $6,000

in reasonable and necessary attorney’s fees to respond to a petition for discretionary

review (PDR), an additional $12,000 for a merits brief if the PDR is granted, and an

additional $12,000 if oral arguments are requested by the Texas Supreme Court.

Satterlee’s counsel’s affidavit was uncontroverted by Kelley.

While the affidavit provides evidence of his and his colleagues’ reasonable hourly

rates, it does not include any other facts to support the reasonableness of the contingent

appellate fees. For example, it lacks an estimate of the hours required in the event of an

appeal or any description of the work that responding to such an appeal would entail.

See Yowell, 620 S.W.3d at 355 (requiring evidence of reasonable hourly rate and services

party reasonably believes will be necessary to defend appeal). While Satterlee is entitled

to an award of appellate attorney’s fees, the evidence he presented to the trial court is

not sufficient to allow this Court to render judgment for those fees. Consequently, we

must remand this issue to the trial court to determine Satterlee’s reasonable and

necessary appellate attorney’s fees.

We sustain Satterlee’s cross-point that the trial court abused its discretion by failing

to award him appellate attorney’s fees. However, we conclude that the record does not

provide sufficient evidence for this Court to render an award of appellate attorney’s fees.

Consequently, we remand the case to the trial court for a determination of such fees.
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CONCLUSION

We overrule both of Kelley’s appellate issues and affirm the trial court’s dismissal

order. We also affirm the trial court’s order on attorney’s fees and sanctions. We remand

the case to the trial court for the limited purpose of determining Satterlee’s reasonable

and necessary appellate attorney’s fees.

Judy C. Parker
Justice

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