Court of Appeals of Texas, Fourth District, San Antonio
the 225th Judicial District Court, Bexar County, Texas Trial
Court No. 2017-CI-24167 Honorable Rosie Alvarado, Judge
C. Martinez, Justice Irene Rios, Justice Liza A. Rodriguez,
A. Rodriguez, Justice.
interlocutory appeal, Margarita Maldonado challenges the
denial of her motions to dismiss the claims brought against
her by neighbors Trenton and Karina Franklin. Maldonado's
motion to dismiss and amended motion to dismiss were filed
pursuant to the Texas Citizens
Act ("TCPA"). See Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.001-.011. We affirm the denial of
Maldonado's motions to dismiss and remand to the trial
court for further proceedings in accordance with this
and Karina Franklin moved into the home located at 403 Aster
Trail in the Stonewall Ranch Subdivision of San Antonio,
Texas in September 2017. Margarita Maldonado lives in the
home immediately behind the Franklins' house and can see
into the Franklins' backyard from her house. Shortly
after the Franklins moved in, Maldonado began complaining
directly to the Franklins and in online posts on a
neighborhood forum about the way the Franklins treated their
dog - leaving it outside 24 hours a day, seven days a week.
Specifically, Maldonado was upset that the Franklins left
their dog outside all day and night regardless of the
weather. Maldonado stated she could hear the dog's
repeated whining and howling inside her own home and the
dog's crying kept her awake at night and caused her
emotional distress during the day. Maldonado contacted the
homeowners association for the neighborhood, which has a
covenant proscribing noisy animals, but it declined to take
any action. Without naming the Franklins, Maldonado posted
comments online expressing her concern about the health and
welfare of "[her] neighbor's" dog, complaining
about having to listen to the crying dog "next door,
" and urging people in the neighborhood not to mistreat
their dogs by leaving them outside in the heat without access
to shade or cool water. In response, Mr. Franklin identified
himself as the neighbor Maldonado was referring to and he
entered the conversation on the Next Door website; at some
point, he and Maldonado exchanged direct messages about the
dog. Maldonado also posted an email referencing the Franklins
and their dog on the neighborhood's email group, along
with a photograph showing the dog in a small fenced side area
of the backyard where the air conditioning units are located.
At one point, Maldonado placed a dog bed in the dog's
side yard with a card stating it was a gift for the dog. The
Franklins acknowledged the bed with a thank you card. In
December 2017, the Franklins filed suit against Maldonado for
invasion of privacy by intrusion on seclusion, alleging she
was engaged in a "campaign of systematic
harassment" over the "alleged mistreatment of their
dog." They also requested injunctive relief against her.
May and June of 2018, while the lawsuit was pending,
Maldonado called Animal Control Services (ACS) several times
to report that the Franklins' dog was outside without
shade even though the heat index was over 100 degrees. An ACS
officer responded to each call and found no actionable
neglect or abuse. Maldonado acknowledges the ACS officers
told her there was nothing they could do. In June 2018,
Maldonado picketed for five days by walking along the
neighborhood sidewalks, including in front of the
Franklins' home, carrying signs that said "Heat
index 100", "Bring the dog in, " and "If
you're hot they're hot." The Franklins called
the police and sought to have Maldonado arrested, but she was
not. The Franklins subsequently amended their petition to add
claims for slander, defamation, intentional infliction of
emotional distress, and trespass. The trial court granted a
temporary injunction against Maldonado after a hearing in
August 2018, but the injunction order was vacated as void on
appeal. See Maldonado v. Franklin, No.
04-18-00589-CV, 2019 WL 451735 (Tex.App.-San Antonio Feb. 6,
2019, no pet.) (mem. op.). Maldonado filed an Anti-SLAPP
motion and amended motion to dismiss the Franklins'
claims as targeting her First Amendment rights. The trial
court held a hearing on the motions, but did not rule within
thirty days; the motions were therefore denied by operation
of law. Tex. Civ. Prac. & Rem. Code Ann. §§
27.005(a), 27.008(a). Maldonado appealed.
to Dismiss Under Texas Citizens Participation Act
TCPA was enacted to "encourage and safeguard the
constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in government to
the maximum extent permitted by law and, at the same time,
protect the rights of a person to file meritorious lawsuits
for demonstrable injury." Tex. Civ. Prac. & Rem.
Code Ann. § 27.002; see In re Lipsky, 460
S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (noting the
TCPA protects citizens who "petition or speak on matters
of public concern from retaliatory lawsuits that seek to
intimidate or silence them"). Toward that purpose, the
statute provides for the expedited dismissal of a legal
action that is "based on, relates to, or is in response
to" a defendant's exercise of the First Amendment
rights to free speech, petition, or association unless the
plaintiff establishes a prima facie case for each claim. Tex.
Civ. Prac. & Rem. Code Ann. §§ 27.003(a),
27.005(c). Courts are required to construe the TCPA liberally
in order to give full effect to its purpose and intent.
Id. § 27.011(b); see Youngkin v.
Hines, 546 S.W.3d 675, 680 (Tex. 2018). "[W]e
construe [a] statute's words according to their plain and
common meaning, unless a contrary intention is apparent from
the context, or unless such a construction leads to absurd
results." Youngkin, 546 S.W.3d at 680 (quoting
City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26
(Tex. 2008)). The legislative intent is determined by
considering the statute as a whole, rather than as isolated
filing of a motion to dismiss under the TCPA triggers a
burden shifting mechanism which ensures that legal actions to
which the TCPA applies have merit and are not brought
"to intimidate or silence" those who exercise First
Amendment rights listed in the statute. In re
Lipsky, 460 S.W.3d at 584; Robert B. James, DDS,
Inc. v. Elkins, 553 S.W.3d 596, 602-03 (Tex.App.- San
Antonio 2018, pet. denied). A party moving for dismissal
under the TCPA bears the initial burden to show by a
preponderance of the evidence that the legal action against
her is "based on, relates to, or is in response to"
the exercise of either: (1) the right to free speech; (2) the
right to petition; or (3) the right of association. Tex. Civ.
Prac. & Rem. Code Ann. §§ 27.003(a), 27.005(b);
see S & S Emergency Training Sols., Inc. v.
Elliott, 564 S.W.3d 843, 847 (Tex. 2018) (movant's
initial burden is to show the TCPA applies to the legal
action). If the movant makes this showing, the burden shifts
to the respondent to establish by "clear and specific
evidence a prima facie case for each essential element of the
claim in question." Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(c); see S & S, 564 S.W.3d at 847.
If the respondent fails to satisfy this burden, his claim
against the movant must be dismissed. Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(b), (c); see S & S,
564 S.W.3d at 847. If the respondent successfully establishes
that the claim has merit, then the burden shifts back to the
movant to establish by a preponderance of the evidence each
essential element of any valid defense. Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(d). If the movant satisfies this
burden, the trial court must dismiss the legal action.
Id. Dismissal of a legal action under the TCPA is
with prejudice to the refiling of the legal action. See
LegacyTexas Bank v. Harlan, No. 05-18-00039-CV, 2018 WL
2926397, at *5 (Tex.App.-Dallas June 7, 2018, no pet.) (mem.
determining whether the parties have met their respective
burdens, the court considers the pleadings and any supporting
and opposing affidavits stating the facts on which the
liability or defense is based. Tex. Civ. Prac. & Rem.
Code Ann. § 27.006(a); see In re Lipsky, 460
S.W.3d at 587; see also Rio Grande H2O Guardian v. Robert
Muller Family P'ship Ltd., No. 04-13-00441-CV, 2014
WL 309776, at *3 (Tex.App.-San Antonio Jan. 29, 2014, no
pet.) (mem. op.) (stating that "[u]nlike other types of
cases where pleadings are not considered evidence, section
27.006 of the Act, which is entitled 'Evidence, '
expressly provides . . . the court shall consider the
pleadings" as evidence in determining whether the legal
action should be dismissed). The trial court does not hear
live testimony on a TCPA motion to dismiss. In re
Lipsky, 460 S.W.3d at 587.
appellate review, the court conducts a de novo evaluation of
the trial court's ruling on the motion to dismiss. S
& S, 564 S.W.3d at 847; Herrera v. Stahl,
441 S.W.3d 739, 741 (Tex.App.-San Antonio 2014, no pet.)
(appellate court reviews each step of the TCPA analysis de
novo). In reviewing the denial of a motion to dismiss under
the TCPA, we view the pleadings and evidence in the light
most favorable to the non-movant. Elkins, 553 S.W.3d
at 603. If resolution of the case also raises issues of
statutory construction, we review those de novo as well.
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895,
899 (Tex. 2017).
of Maldonado's Anti-SLAPP Motions to Dismiss
begin by determining whether Maldonado's Anti-SLAPP
motion and amended motion to dismiss were timely filed with
respect to any of the Franklins' claims. Section
27.003(b) requires a motion to dismiss under the TCPA to be
filed no later than the sixtieth day after the date of
service of the "legal action." Tex. Civ. Prac.
& Rem. Code Ann. § 27.003(b). The statute defines a
"legal action" as "a lawsuit, cause of action,
petition, complaint, cross-claim, or counterclaim or any
other judicial pleading or filing that requests legal or
equitable relief." Id. § 27.001(6).
Franklins filed their original petition asserting a single
cause of action for invasion of privacy by intrusion on
seclusion and seeking a temporary injunction against
Maldonado on December 29, 2017. The factual allegations
asserted in support of the injunction and invasion of privacy
(a) Openly posting false statements on a neighborhood
bulletin board website, Next Door, in an attempt to incite
anger from among neighbors and harm the Franklin's [sic]
(b) Privately messaging both Plaintiffs, chastising them for
their ways, lifestyle, etc.;
(c) Approaching and interrogating the Plaintiffs' minor
son while he was walking the family dog;
(d) Posting comments on the neighborhood website which makes
it obvious that she continually observes Plaintiffs and
intrudes on their seclusion and right to privacy;
(e) Screaming at Trenton Franklin while he exits ...