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Amini v. Spicewood Springs Animal Hospital, LLC

Court of Appeals of Texas, Third District, Austin

November 7, 2019

Nima Amini, Appellant
Spicewood Springs Animal Hospital, LLC; and Dr. Barak Benaryeh, Appellees


          Before Chief Justice Rose, Justices Triana and Smith


          Jeff Rose, Chief Justice.

         This appeal explores the application of the Texas Citizens Protection Act (TCPA) to a barking-dog dispute. See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011.[1] The appeal arises from a lawsuit filed against appellant Nima Amini by appellees Spicewood Springs Animal Hospital, LLC and Dr. Barak Benaryeh. Amini owns a condominium at the Neely's Canyon condominiums (NCC) near both the hospital's property and a strip of land owned by NCC and leased to the hospital. Starting in 2014, Amini began to complain about being disturbed by barking dogs. Benaryeh, the owner of the hospital, arranged to have a sound wall built, which allayed Amini's complaints for a few months. Amini then began to complain about noise related to garbage trucks picking up the hospital's trash. Amini complained to Benaryeh; other hospital staff members; NCC's property manager, Mike Hill; the City of Austin's zoning department; the City's online noise complaint system; and his City Council representative. The hospital and Benaryeh eventually sued Amini for tortious interference with an existing contract, business disparagement, and private nuisance, and Amini filed a motion to dismiss under the TCPA. See id. § 27.003. The trial court did not rule on Amini's motion, which resulted in its being deemed denied by operation of law, and Amini filed this interlocutory appeal. See id. § 27.008. As we explain below, we will reverse the denial of Amini's motion to dismiss and remand the case to the trial court for further proceedings.


         The TCPA is intended 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" while protecting a person's right to file a meritorious lawsuit for a demonstrable injury. Id. § 27.002; Hersh v. Tatum, 526 S.W.3d 462, 466 (Tex. 2017). Thus, a party, usually a defendant, may file a motion to dismiss the "legal action," showing by a preponderance of the evidence that the lawsuit against him is based on, relates to, or is in response to his exercise of his right of free speech, right to petition, or right of association. See Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 962-63 (former Tex. Civ. Prac. & Rem. Code §§ 27.003(a), .005(b)); Hersh, 526 S.W.3d at 466. If the movant shows that the TCPA applies, the trial court "shall dismiss" the legal action unless the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element" of each claim at issue, and it shall dismiss even in the face of a prima facie case if the movant establishes by a preponderance of the evidence a valid defense to the claim. See 2011 Tex. Gen. Laws at 963 (former Tex. Civ. Prac. & Rem. Code § 27.005(b)-(d)).

         "Exercise of the right of free speech" under the TCPA is "a communication made in connection with a matter of public concern." Tex. Civ Prac & Rem Code § 27001(3) As applicable to this appeal, a "matter of public concern" is an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace See 2011 Tex Gen Laws at 962 (former Tex Civ Prac & Rem Code § 27001(7)) Texas courts have repeatedly noted and discussed the incredible breadth of the language used in the TCPA See, eg, Adams v Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex 2018); Lippincott v Whisenhunt, 462 S.W.3d 507, 509 (Tex 2015); Porter-Garcia v Travis Law Firm, PC, 564 S.W.3d 75, 84-85 (Tex App-Houston [1st Dist] 2018, pet denied); Batra v Covenant Health Sys, 562 S.W.3d 696, 706 (Tex App-Amarillo 2018, pet denied); Cavin v Abbott, 545 S.W.3d 47, 63-64 (Tex App-Austin 2017, no pet); Garton v Shiloh Vill Partners, LLC, No 12-16-00286-CV, 2017 WL 6884451, at *3 (Tex App-Tyler Aug 23, 2017, no pet) (mem op); Serafine v Blunt, 466 S.W.3d 352, 365-380 (Tex App-Austin 2015, no pet) (Pemberton, J, concurring).


         Amini averred that when he bought his condo in 2012, he thought "the boarding facility at [the hospital] was chiefly indoors" and was not concerned about occasional animal noise. In 2013, he noticed "increased barking noise" in the early mornings and evenings to such a degree that it started to affect his sleep and his enjoyment of his home, and in early 2014, he emailed the hospital to complain. In September 2014, Benaryeh informed Amini that the hospital would build a sound wall to address the complaints, and when the wall was finished in November, Amini thanked Benaryeh, saying in an email that he had noticed a "significant reduction in the noise level."

         In early 2015, Amini started again being awakened throughout the night because the hospital had placed its dumpster on the land leased from NCC, [3] in an area where the sound wall did not reach, and its garbage collection "started consistently to occur . . . between the hours of 1:00AM and 5:00AM." In November 2015, Amini emailed Benaryeh to complain, copying NCC's property manager, Mike Hill, and the early morning noise stopped for several months. In about March 2016, Amini again heard "excessive dog barking" and noticed that the hospital had begun to exercise dogs on the leased land, where the sound wall did not reach. He also heard barking coming from an enclosed yard "less than 100 feet from" his condo.

         Amini averred that through the first half of 2017, he and appellees' attorney discussed the possibility of appellees buying Amini's condo. Amini said that although he "really did not want to sell," he agreed to "explore the option" because of his ongoing frustration. By June, however, it "became clear" that the parties could not agree on a price, and on June 9, 2017, Amini got a letter from appellees' attorney, which he characterized as "express[ing] disapproval with my voiced concerns about [the hospital's] use of the Leased property, claim[ing] incorrectly that I professed a unique sensitivity to sound, and express[ing] his displeasure for my refusal to accept Dr. Benaryeh's offer to purchase my home." That same month, Amini again emailed Hill and Benaryeh to state that "there were numerous dogs barking and creating excessive noise on the" leased land. In August, Amini emailed appellees' attorney and said in part, "Due to your threats I will protect myself by now filing a lawsuit against the HOA to address the [breach] of contract of the lease agreement." He also said that the hospital's real-estate broker should "start looking for commercial properties zoned for dog kenneling."

         According to Amini, the hospital resumed its early-morning trash collection in mid-2017. In early September 2017, Amini emailed Hill and Benaryeh that he believed that the hospital was in violation of its lease with NCC and again threatened legal action against NCC if the situation was not resolved. Benaryeh responded, asking Amini to meet to discuss possible solutions and explaining that he had contacted several trash companies; that commercial trash "is collected at night" because of the kinds of trucks used; and that although he could explore moving the dumpster, "it would be complicated." Benaryeh also said that the hospital was not breaking any ordinances and that the City had investigated at least one of Amini's complaints and found it to be "unjustified." Amini responded that he was not interested in a meeting; that he wanted "peace and quiet between the hours of 10pm-7am"; that a City code enforcement officer had told him to file a nuisance complaint rather than contacting the code department; that the NCC handbook prohibits loud noise on the property; that the late-night noise was "being generated on the property that Neely's Canyon owns"; and that he was being "forc[ed]" to sue NCC's homeowners' association (HOA).

         Amini averred that he was awakened by noise from the hospital's garbage collection about a week later, in early October 2017, and that he "allowed [his] frustration to get the best of [him]" and sent the same email-complaining that he had been woken up-eleven times to both Benaryeh and Hill at about 4:45 a.m. Later that day, he emailed Benaryeh, "The next time this happens I will drive down to your house and start honking my horn in the middle of the night while I am parked in the street so that you and your neighbors can get a taste [of] what I am dealing with. You have been warned." Two days later, Amini emailed Hill to say that the hospital's trash collection had occurred at 1:00 a.m. He reiterated his belief that the leased property was supposed to be used only as a parking lot and told Hill he would document each such occurrence "until the court date." At the end of October, Amini emailed Hill and Benaryeh again[4]-sending the same email multiple times-to report another early-morning trash collection. He complained about what he viewed as the hospital's ongoing violation of the lease and asked Hill to provide an explanation of "how this is not a violation of the lease." In November 2017, Amini climbed onto an NCC parking structure (where he apparently did not have permission to be) and videotaped a hospital employee while the employee was walking dogs on the leased property. The hospital moved its dumpster in November, and Amini averred that he had not been woken by noise from trash collection since.

         As for Amini's communications with the City of Austin, he complained of a zoning violation in June 2013 and then emailed the Zoning and Platting Commission in November 2013, explaining that since the hospital obtained City permission to operate a dog kennel in the last year, he had submitted "10 noise complaints . . . due to numerous dogs barking between 7-8 AM every single morning, including Saturdays and Sundays (they are barking right now as I type). Prior to the kennel this facility only operated as an animal clinic (which I think is appropriate). Since the changes the noise has become unbearable and it isn't fair for someone to not be able to sleep [past] 7 AM in their own home on the weekends." A City inspector determined that there were no code violations at the hospital's property. Amini contacted the City again in mid-2017, complaining in June and July about overnight garbage collection. A City employee went to the hospital, observed that the dumpster and its location were "compliant," and asked the hospital to arrange to have its trash collected after 6:30 a.m. In November and December 2017, Amini filed complaints that the hospital was violating the City code by exercising dogs outside rather than keeping them "totally within a building." Amini averred that he also visited the Zoning Office on several occasions and that he was told by City employees "that dogs were not allowed to be outside at [the hospital] and that I should file a complaint with" the City and that "a sound study is an option to pursue with the City." Amini also complained to his City Council representative.

         In November 2017, the hospital sued Amini for tortious interference with an existing contract, business disparagement, and private nuisance. Amini filed a motion to dismiss under the TCPA, asserting that the Act applied because appellees' claims against him were based on his exercise of his rights to petition and free speech and that his complained-of communications were related to issues of health and safety; issues of economic, environmental, and community welfare; and a service in the marketplace. See Tex. Civ. Prac. & Rem. Code §§ 27.001, .003. The hospital then filed an amended petition adding Benaryeh as a plaintiff, dropping its claims for tortious interference and disparagement, and asserting claims for private nuisance on behalf of both the hospital and Benaryeh. Amini filed a supplemental motion to dismiss addressing the amended petition.

         Appellees responded, arguing that the TCPA is unconstitutional and that they could establish as "affirmative defenses" to Amini's motion to dismiss: quasi-estoppel, because Amini accepted the benefits of the sound wall; and unclean hands, in the form of "bad faith claims, negotiation by duress, and harassment and revenge." Appellees also insisted that Amini's motion to dismiss was "of no procedural effect" as to their superseded petitions and that the TCPA could not be applied against their abandoned claims for tortious interference and business disparagement. As for their live pleading, appellees argued that Amini had not shown that the TCPA applied to their claims for private nuisance, that Amini's conduct was not protected speech, and that even if the TCPA did apply, they could establish a prima facie case for each essential element of their claims. Appellees also filed a TCPA motion to dismiss Amini's motion to dismiss, seeking at least in part to "[d]emonstrate[e] the unreasonableness" of the TCPA and "the absurd and purpose-frustrating breadth of its application." The trial court did not rule on Amini's or appellees' motions to dismiss, resulting in their being deemed denied by operation of law. See id. § 27.008. Only Amini appealed.


         The primary issues we must address in this appeal are whether the TCPA applies to appellees' live claims, whether it applies to appellees' abandoned claims, and, if it applies, whether appellees presented a prima facie case for each essential element of their claims.[5]

         Application of the TCPA to abandoned claims

         Amini argues that his motion to dismiss applied to all of appellees' claims, including those omitted from their live pleading, and that appellees may not "escape" the TCPA by simply dropping two of their original claims. Appellees, on the other hand, contend that Amini has made contradictory arguments, arguing on appeal that his motion to dismiss is an affirmative request for legal relief that survived appellees' nonsuiting of two causes of action while arguing in the trial court that his motion was not "a procedural vehicle for the vindication of a legal claim." Appellees assert that Amini's motion to dismiss was of no effect against the abandoned claims and that he cannot recover attorney's fees related to those claims, regardless of whether appellees presented a prima facie case of their essential elements.

         The nonsuit of claims challenged in a TCPA motion to dismiss does not "entirely moot" the TCPA motion because the movant may "continue to pursue their requests for attorney's fees incurred in defending those claims prior to their voluntary dismissal, as well as for the sanctions the Act would prescribe." Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 293 (Tex. App.-Austin 2018, pet. denied); see McDonald Oilfield Operations, LLC v. 3B Inspection, LLC, 582 S.W.3d 732, 752 (Tex. App.-Houston [1st Dist.] 2019, no pet.) (quoting CTL/Thompson Tex., LLC v. Starwood Homeowner's Ass'n, 390 S.W.3d 299, 300 (Tex. 2013)); Gaskamp v. WSP USA, Inc., ___ S.W.3d___, No. 01-18-00079-CV, 2018 WL 6695810, at *9 (Tex. App.-Houston [1st Dist.] Dec. 20, 2018, no pet. h.); Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *13 (Tex. App.-Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.); Rauhauser v. McGibney, 508 S.W.3d 377, 381 (Tex. App.-Fort Worth 2014, no pet.), overruled on other grounds by Hersh, 526 S.W.3d at 467.

         Appellees also argue that because they dropped their disparagement and tortious interference claims, as opposed to nonsuiting their lawsuit altogether, the TCPA should not be applied to those claims. Although we might agree that "the policy of deterrence of the filing of non-meritorious lawsuits" would be better served by allowing a party facing a TCPA motion to amend its pleadings based on "the subsequent recognition of facts," the TCPA is not written to allow a party to escape its attorney's fee provisions by amendment or nonsuit, as, for instance, is the case with a motion to dismiss a baseless cause of action. See Tex. R. Civ. P. 91a (party may file motion to dismiss on grounds that claim has no basis in law or fact, and nonmoving party may nonsuit claim and avoid operation of rule and assessment of attorney's fees and costs). We hold that appellees' abandonment of two of their claims did not affect Amini's right to seek attorney's fees under the TCPA as to those claims. See McDonald Oilfield, 582 S.W.3d at 752 ("3B Inspection and the individual employees had an absolute right to nonsuit any or all of their claims, but their decision to nonsuit does not affect McDonald Oilfield's right to continue to pursue independent claims for affirmative relief." (emphasis added)); Gaskamp, 2018 WL 6695810, at *9-10 ("Appellants' motion was not 'moot' but remained pending as to WSP USA, Inc.'s claims even after those claims were nonsuited."). Thus, appellees' abandonment of their claims for tortious interference and business disparagement did not bar Amini from seeking TCPA remedies as to those claims. We next consider whether the TCPA applies to appellees' claims against Amini.

         Does ...

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