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O'Gan v. Ogle

Court of Appeals of Texas, Third District, Austin

January 15, 2020

Dr. Damon C. O'Gan, Appellant
Scott Ogle, Appellee


          Before Justices Goodwin, Baker, and Kelly.


          Thomas J. Baker, Justice.

         Scott Ogle, pro se, sued Dr. Damon C. O'Gan for theft of his cell phone under the Texas Theft Liability Act (TTLA). See Tex. Civ. Prac. & Rem. Code § 134.002 (providing civil cause of action for theft). O'Gan filed a Texas Citizens Participation Act (TCPA) motion to dismiss Ogle's claims, asserting that the lawsuit was baseless and brought in response to a motion to quash that O'Gan filed in a separate suit Ogle brought seeking to depose various people to investigate an alleged slander claim. See id. § 27.003.[1] The trial court granted O'Gan's motion in part as to Ogle's claims for intentional infliction of emotional distress and unjust enrichment but denied it as to the TTLA claim and did not award O'Gan any attorney's fees or costs. We reverse the portion of the trial court's order denying O'Gan's request for attorney's fees and costs incurred in defending against the dismissed claims and remand for a determination of fees and costs under section 27.009. See id. § 27.009. We affirm the remainder of the trial court's order.


         Ogle alleged in his petition that he has had two cell phones stolen at or near his law office in the two years before his suit. He claimed that the "exact location" of his first stolen phone, as identified through an app called "LookOut," is currently in the Kyle Police Department, "near the back of the building." He alleged that an officer with the department "has confirmed that Ogle's cellphone is not in the building" but that the officer "won't swear to it because 'Ogle is not a judge.'"

         Regarding his second stolen phone, Ogle alleged that

Plaintiff noticed his cell phone not in his vehicle as he left his office. After circling the block back to his law office, Ogle entered his office again, and searched for his cell phone, again using his "LookOut" App. This time, Plaintiff's cell phone was located at "The Nines Grooming Center" . . . three houses down from Plaintiff's law office[.]
Plaintiff walked to the barber shop, and saw Defendant walking briskly to his vehicle located in the rear of the building. Defendant ignored Plaintiff's "hellos", "howdy", and "where is my cellphone?" comments made during Defendant's haste to enter his vehicle. Ogle returned to his office, and the LookOut location of his cellphone had relocated to the exact location of Defendant's vehicle which was the only vehicle in the parking lot. Plaintiff then stood in the parking lot as Defendant was attempting to flee, and recorded O['G]an's license plate number.

         Ogle filed an affidavit with the trial court to support his claims. In addition to the above assertions, Ogle averred that he

used the "Lookout" application on another device to determine the physical location of [his] missing phone [and that] GPS coordinates showed the phone to be located in [the] barber shop. [After his encounter with O'Gan upon his departure from the barber shop, ] the "Lookout" application geolocated [Ogle's] cellular phone to the parking lot wherein Defendant's vehicle was the sole vehicle present.

         Ogle sued O'Gan for violation of the TTLA, intentional infliction of emotional distress, and unjust enrichment. He sought attorney's fees and exemplary damages under the TTLA. See id. § 134.005 (allowing for person who has sustained damages resulting from theft to recover attorney's fees, court costs, and up to $1000 in additional statutory damages).

         In his TCPA motion to dismiss, O'Gan asserted that Ogle "initially sought to depose . . . O'Gan in a Guadalupe County lawsuit" and that "[w]hen . . . O'Gan moved to quash the deposition, [Ogle] responded by filing this lawsuit" within 48 hours. O'Gan contended that Ogle's petition in the Guadalupe County lawsuit "does not name any defendants, but identifies persons that [Ogle] wants to depose in order to investigate what [Ogle] claims to be a slander claim against a member of a 'fake church' involved in 'nefarious activities.'" O'Gan attached to his motion a certified copy of Ogle's petition in the Guadalupe County lawsuit and an email that Ogle sent to O'Gan's counsel just after O'Gan filed his motion to quash. In the email, Ogle stated, "I am willing to reduce the number of objections you seem to have [to the subpoena for deposition in the Guadalupe County lawsuit] by simply filing suit against O'Gan in Small Claims Court here in Travis County." The day after Ogle sent the email, he filed the present lawsuit.

         O'Gan attached to his motion his affidavit, in which he averred that he went to a barber shop called "The Nines" in April 2017 and that during his haircut an unknown man entered the lobby of the shop insisting that his cell phone was there. After the man left, the owner locked the shop's door. After O'Gan exited the shop and began approaching his car, the unknown man began yelling at him to get his attention, but O'Gan "did not engage" him because the man was being "aggressive and loud." Instead, O'Gan "entered [his] car to leave" ...

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