Maldonado v. Franklin

          From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2017-CI-24167 Honorable Rosie Alvarado, Judge Presiding

          Rebeca C. Martinez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice.

          MEMORANDUM OPINION

          Liza A. Rodriguez, Justice.

         In this 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

         Participation Act ("TCPA").^[1] 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 opinion.

         Background

         Trenton 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.

         During 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.

         Motion to Dismiss Under Texas Citizens Participation Act

         The 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 parts. Id.

         The 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. op.).

         In 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.

         On 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).

         Timeliness of Maldonado's Anti-SLAPP Motions to Dismiss

         We 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).

         The 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 claim were:

(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] reputation;

(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 ...