Court of Appeals of Texas, Third District, Austin
Dr. Damon C. O'Gan, Appellant
Scott Ogle, Appellee
COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY NO.
C-1-CV-18-010445, THE HONORABLE ERIC SHEPPERD, JUDGE
Justices Goodwin, Baker, and Kelly.
J. Baker, Justice.
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. 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.
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.'"
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.
filed an affidavit with the trial court to support his
claims. In addition to the above assertions, Ogle averred
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
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).
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
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" ...