FROM
COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY NO.
C-1-CV-17-010712, THE HONORABLE ERIC SHEPPERD, JUDGE
PRESIDING
Before
Chief Justice Rose, Justices Triana and Smith
MEMORANDUM OPINION
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.
STANDARD
OF REVIEW
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).
FACTUAL
SUMMARY[2]
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.
DISCUSSION
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
...