### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 18
- 00272
- CV

Nima Amini, Appellant

v. Spicewood Springs Animal Hospital, LLC; and Dr. Barak Benaryeh, Appellee s

FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUN TY NO. C
- 1
- CV
- 17
- 010712 , THE HO NO R ABLE ERIC SHEPPERD, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
This appeal explores the application of t he Texas Citizen s Protection Act (TCPA) to a barking

- dog d ispute. S ee Tex. Civ. Prac . & Rem. Code §§ 27.001

- .011

. 1 The appeal a ris es f ro m a lawsuit filed against appellant Ni ma Amini by a ppellees Spicewood Springs Animal Hospital, LLC and Dr. Barak Benaryeh

. Amini owns a condo minium at the Neely’s Canyon condo miniums (NCC) near both the hospital ’ s property and a strip of land owne d by N CC and leased to the hospital

. Starting in 2 014, Amini began t o complain about being disturbed by barking dogs

. Benar yeh , the owner of the hosp ital , arranged to have a sound wall built , which allayed Amini ’ s complaints for a few months

. Amini then b egan t o complain about noise related

1 The TCPA was a mended in the 201 9 leg islative se ssion, but thos e amendments do not apply to this lawsuit, which was filed before th e amendments ’ effe ctive date. See Act of May 17 , 2019, 86 t h Leg., R.S., ch. 378, § § 11, 12 , 2019 Tex. Gen. La w s 684, 687 ( amendmen ts to T CP A apply “ only to an action fil ed on or after ” September 1, 2019).2 to garbage trucks picking up the hospital ’ s trash . Amini complain ed to Be narye h ; other hospital staff members; NCC ’ s propert y manager, Mike Hill ; the City of Austin ’ s zoning department; the City ’ s online noise compla int sy st em; and his C it y Council represen tative

. The hospital and Benaryeh eventually sued Amini for tortious interference with an existing contract , bu siness disparagement , and p rivate nui sance , and A mini filed a motion to dismiss under the TCPA

. See id

. § 27

. 0 03

. The trial court did not rul e on Amini ’ s motion , w hich result ed i n its being deemed denied by oper ation of law , and Ami ni filed this interlocutory appeal

. See id . § 27.008

. As we explain below, w e will reverse the denial of Amini ’s motion to dismis s and remand t he case to the trial court for further pro ceedings.

ST A N DARD OF RE VIEW The TCPA is intended to “ encourage an d safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in gov ernmen t to the maximum extent permitted by law ” while protecti ng a pe rson ’ s right to file a meritorious lawsuit for a demonstrable inj ury. Id . § 27.00 2; Hersh v. Tatum , 526 S.W.3d 462, 466 (Tex. 2017)

. Thus, a par ty , usually a defendant, may file a motio n to d i s miss the “ legal action, ” show ing by a preponderance of the evidence that the lawsuit agains t him is based on, relates to, or is in response to his exerc ise of his right of f ree speech , right to petition, or right of association

. See Act of May 21, 2011, 8 2nd Leg., R.S., ch. 341, § 2, 2011 Te x. Gen. Laws 961, 962

- 63 (f

ormer Tex. Civ. Prac. & Rem. Code § § 27 .003( a) , .005(b) ) ; Hersh , 52 6 S.W.3d at 466. I f the movant shows that the TCPA appl ies , the trial court “ shall dism iss ” the legal action unless the

no nm ovant “ establishes by clear and specific evidence a prima facie case for each essential element ” of each clai m at issue , and it shall dism iss even in the face of a prima facie case if the3 movant establishes by a preponderance of the evidence a val i d defe ns e to the claim

. See 2011
Te x. Gen. Laws at 963 (f ormer Tex. Civ. Prac. & Rem. Code § 27 .005 ( b)

- ( d ) )

. “Exe r cise of the right of free speech ” under the TCPA i s “a communication made in connection with a matter of public concern. ” Tex. Civ. Prac. & Rem. C ode § 27.001(3).
A s applicable to this appeal, a “ma tter of public concern ” i s an issue rela ted to health o r safety; environmental, economic, or community we ll

- being; the government; a public official or public figure; or a good, product, or serv ice in th e marketplace. See 2011 Tex. Gen. Laws at 962 ( f

ormer Tex. Civ . Prac. & Rem. Code § 27.001(7)). Texas court s have repeatedly noted and discussed the incredible breadth of the language used in the TCPA

. S ee , e.g. , Adams v. Starside Custom Builde rs, LLC , 5 47 S.W.3d 890, 894 (Tex. 2018) ; Lippincott v. Whisenhunt , 462 S.W.3d
50 7, 509 (Tex. 2015) ; P orter

- Garcia v. Travis Law Firm, P.C. , 564 S.W.3d 75, 84

- 85 (Tex. App.

— Houston [1st Dist.] 2018 , pet. denied ) ; Batra v. Cove nant Health Sys. , 562 S.W.3d
6 96, 706 ( T ex. App.

— A marillo 2018 , pet. denied ) ; Cavin v. Abbott , 545 S.W.3d 47, 6 3

- 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. ) ; Se rafine v. Blunt , 46 6 S.W.3d 352, 365

- 3 80 (Tex. App.

— Austin 2015 , no pet. ) (Pembe rto n, J., concurring)

.
FAC T U AL SUMMARY 2
Amini averred that when he bought his condo in 2012 , he thou ght “ the boarding facil ity at [the hospital] was chiefly indo ors ” and wa s not c on ce rned about o ccas ional animal noise

. In 2013 , he noticed “ increased bar king noise ” in the early morning s and evenings to such a degree that it started to affe ct his sleep a nd his enjoyment of his home , and i n early 2014, he

2 Our recitation of the facts i s taken from th e parties ’ pl ea dings , motions, and affidav its

.4 e mailed the hospital to comp la in . I n S eptember 2014, Benaryeh informed Amini that th e hospital woul d b ui ld a sound wall to address the complaints , a nd when the wall was finished in November, Amini thanked Benaryeh , say ing in an email that he had not iced a “ significa nt reduct io n in t he n oise leve l

. ”
I n early 2015, Amini start ed again being awaken ed throug hout the night because
t he hospital had placed its dumpster on the land l eased from NCC , 3 in an area where the so und wall did not reach , and its garbage collection “ started consiste nt ly to o ccur
. . . between the hours of 1:0 0AM and 5:00AM. ” In November 2 0 15, Amin i emailed Benaryeh to complai n , cop yi ng NCC ’ s property manager, Mike Hill , a nd the early morning noise stoppe d for several months.
In about March 2016, Amini again hear d “ ex c es sive dog barking ” and noticed that the hosp ital had begun to exercis e do gs on the leased land , where the sound wall did not reach . He also heard barking coming from an encl osed yard “less tha n 100 feet fro m ” his condo

. Amini averred that through th e f i rst half of 2017, he and appellees ’ attorney discussed the possibilit y of appellees buying A mini ’ s condo. Amini sa id that although he “ re ally did not want to sell , ” he agree d to “ explore the option ” because of his ongoing frustration

. B y Ju ne , howe ve r, i t “ beca me clear ” th at the part ies could not agree on a price , and o n June 9,
201 7, Amini got a letter from appellee s ’ att orney , which he characterized as “ express [ ing] disapproval with my voiced concer ns about [the hospital ’ s] use of the Leas ed prope rt y ,

c l aim[ing] incorrectly that I pr of essed a uni q u e sens itivity to sound, and express[ing] his displeasure for my refus al to accept Dr. Ben ar ye h ’ s off er to purchase my ho me. ” That s ame

3 The lease pro vid es that the land , des cribed as “ a paved parking a rea , ” co uld be used by the h os pital “for a par k ing lot a n d a driveway . . . and for no other purp ose
. ” As we will explain, Amini complained repeatedly abou t the h ospital ’ s use of the property , which he a sserted was in violation of its lease with NCC

.5 month, Amini again emailed Hill and Benarye h to state that “ there we re num e rous dogs barking and creating exc essive noise on the ” leased land

. In August, Amini emailed appellee s ’ attorney and sa id in part , “ Due to your threat s I will protect myself by now filing a lawsuit against the HOA to address the [breach] of contr ac t of t h e lease agreement

. ” He also said that the hospital ’ s real

- es tate br oker should “ start looking for commercial pro p erties zoned for dog kenneling. ” According to Amini , t he hospital resumed its early

- morning trash c ollection in

m id

- 2017

. I n early S eptem b er 2017, Amini emailed Hill and Benary eh that he believed that the hospital was in violati on of its lease with NC C and again threat en ed le gal action against NCC if the situation was not res olved

. Benarye h responded , ask ing Amini to meet to discu ss possib l e sol u tions and expl ain ing that he had contacted several tr ash companies ; that commercial tra sh “ is

co llected at night ” because of the kinds of trucks us ed ; and that although he c ould explore moving the dumpster , “it would be complicated

. ” Benar ye h also s aid t h at the hospital was not b reaking any ordinances and that the City h ad investigated at least one of Amini ’s compla int s and found it to be “ un ju stified. ” Amini respo nded that he was not interested in a meeti ng ; that he wanted “ peace and quie t bet ween the h o urs of 10 pm - 7am ” ; that a City code enforce ment officer had told him to file a nuisa nce complaint rather than cont acting the code department ; that the NCC handbook prohibits loud noise on the pr operty ; that the late

- night noise was “ being
ge nera ted o n the p roperty that Neely ’ s Canyon owns ” ; and th at h e was being “ forc [ ed] ” to s ue NCC ’ s homeowner s ’ association (HOA )

. Amini aver red that he was awakened by noise from the hospital ’ s garbage collection about a week later , in early O c tober 20 1 7, a nd that h e “ al l owed [his] frustration to get the best of [him ] ” and sent the same e mail

— com plaining th at he had been woke n u p

— eleven times to bo th Benaryeh and Hill at about 4:45 a.m. Later that day, he emailed Be nary eh , “ T he6 nex t time this happens I will drive d o wn to your house and start honki ng my horn in the middle of the night while I am parked in th e street so that you a nd your neighbors can get a taste [of] what I am dealing with. You hav e been warned. ” Two days later, Amini emailed Hill to s ay that the h o spita l ’s trash collection had occurred at 1:00 a.m. He reiterat ed his belief that t he leased property was supp osed to be used only as a parking lot and told Hill he would document each such occurrence “until the court date. ” A t the end of O c tober , Amini email e d Hill and Benaryeh again 4

— send ing the same email multiple times

— to repo rt an other ea rly

- morning trash collectio n
. He complain ed about what he viewed as the hospital’s ongoing violation of the lease and ask ed Hill to provide an explanatio n of “ how th i s is no t a violation of the lease

. ” I n November 2017, Amini climbed onto an NCC parking structure (where he appa ren tly did not have permission to be) a nd videotape d a hospital employee while the employee was walking dogs on the leased propert y . T he hosp i t al mov e d its dumpster in November , and Amini averred that he had not been woken by noise from trash collection sinc e. As for A mini ’ s communications with the City of Austin, he complained of a zoning violation in June 2013 and then emailed t he Zoning an d Pla tt i n g Commission i n November 2013 , explaining that since the hospital obtained City p ermission to operate a dog ke nnel in the last year , he had submitted “ 10 noise complaints

. . . due to numerous dogs barking b etween 7

- 8 AM ever y single mo rning, incl u d ing Sa t urdays and Sundays (they are barking right now as I ty pe). Prior to the ken nel this facility only operated a s an animal clinic (which I think is appropriate). Since the changes the noise has become unbearab le and it isn ’ t fair for som eone to
not b e able to sleep [pas t ] 7 AM in their own home on the weekends

. ” A City inspector

4 A m ini said he also included so me of the hospital ’ s staff membe rs on the email in the h ope that telli ng someone else “would cause something to change. ”7 determined that there were no code violations at the hospital ’ s prope rty

. Am ini contact ed 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

“ compl iant, ” and asked the hos pital to arrange to have its trash c ollect ed after 6:30 a.m. In November and Dece mber 2017 , Ami ni filed com p lai n ts that the h ospital was violating the Ci ty code by exercising dogs out s ide rather than keeping the m “ totally wi thin a bu ilding. ” Amini averred that he also visited the Zoning Of fice on several occasions and that he was told by City employees “ that dogs w e re not a llowe d to be outside at [the hospital ] and that I should file a

com plaint wi th ” the C ity and that “ a sou nd study is an option to pursue with the City. ” Amini also complained to his C i ty C o uncil representative

. In November 2017, t h e hospital s u ed Amin i for to rtious interference with an existing contract , bu siness disparageme nt , and private nuisance

. Amini f iled a m otion to dismiss under the TCPA , asserting that the A ct applied be cause appellees ’ clai ms against him were ba sed on his exercise of his rig h t s to p etition and free spe ech and that his complained

- of communications were related to issues of health and safety ; issu es of economic, env iro nmental, and community welfare ; and a service in the marketplace

. See Tex. Civ. Prac. & Rem. Code § § 2 7

. 001, . 0 0 3

. Th e hospital then filed an amend ed petition add ing Benaryeh as a plaintiff , drop p ing its claims for tortious interfer ence and disparagement, and assert ing claims for private nuisance on behalf of both the hospital and Benaryeh

. Amini filed a supplem e ntal mo tion to dismis s addressing the am ended petition

. Appellees responded , arguing that the TCPA is unconstit utional and that they could establish as “ affirm ative defenses ” to Amini ’ s motion to di smiss : quasi

- est oppel , because
A mini accepted t h e benefi t s o f the sound wall ; and uncl ean hand s , in the form o f “ bad faith8 claims, negotiation by dur ess, and haras sment and reven ge
. ” Appellees also insisted th at Amini ’ s motion to dismiss was “ of no procedural effect ” as to their supersede d petitions and that the T CP A could not be applied agai nst t heir abandoned claims for tort ious interference and busi ness disparag e ment . As for th eir live pleading, app ellees argued that Amini had not shown
tha t the TC PA applied to their claims for private nuisance, that Amini ’ s c o nd uct was not protected spee ch , an d that even if the TCPA did apply, they could establish a prima facie case fo r each es sential element of their claims. Appellees also filed a TCPA motion to dismi ss Amini’s motion to dismiss , see king at least i n part to “ [d ]emonstrate[e] the unreasonablen ess” of the TCPA and “the absurd and purpose

- frustrating breadth of i ts a pplication.” The trial court did not rul e on Amini ’ s or appellees ’ motion s to dismiss , resulting i n their being deemed den ied by
oper atio n of law

. Se e id . § 27.008

. O nly Amini appe al ed

.

DI SCU SSION The primary issues we must address in this appeal are whether the T C PA applies to appellees ’ live claims, whether it applies to appel lees ’ abandon ed claims , and , if i t applies , whether appellees prese n te d a pr i ma facie case for each essential el ement of t heir claims. 5

5 A ppellee s al so argue that the TCPA is uncon stitu tiona l and that it s unconstitutional ity

“ validat [es] the tri al court ’ s denial of Amin i ’ s m otion

. ” Howev er , th e denia l of Amini ’ s motion by operatio n of la w cannot be viewed as a determination on appellees ’ challenge to the constitutionality of the overall stat utory scheme , and w e will not consider their constit uti onal arguments in thi s in te rlocutory appeal

. Cf. Ab ateco la v. 2 Savages Concrete Pumping, LLC , No

. 14

- 17

- 00678

- CV, 2018 WL 3118601, at *15 (Tex. App.

— Houston [ 14th Dist.] June 26, 2018 , pet. denied ) ( mem. op.) ( trial court did not rule on constit utiona l c hall enge when denying mot io n to dismiss , and appellate c o urt could not address that chall enge i n interlocutory appeal from denial of TC PA mot ion ); Hearst Newspa pers, LLC v. Status Lounge Inc., 541 S.W. 3d 881, 894 (Tex. App.

— Houston [14th Dist

. ] 2017 , no pe t. ) ( in interlocutory app ea l from denial of TCPA motion, appellate court l acked ju risdiction to consider separate order den ying motion to dec lare TCPA unconstit utional)

.9 Application of th e TC PA to abandon ed claims Amini argue s th at his motion to dismiss applied to all of appellees ’ cl aims, including those omitted from their live pleading , a nd that appe l le es may not “ escape ” the TCPA by simply drop ping two of their original claims

. Appellees , on the other hand, co ntend that
Amini has made contradictory a rguments , arg uing on appeal that hi s motion to dismiss is an affirmative request for l egal relief tha t s ur vive d appelle es ’ n onsuiting of two ca uses of action while arguing in the trial court that his motion was no t “ a procedural veh icle for the vin dication of a legal claim

. ” Appellees assert that Amini ’ s motion to dismiss was o f no effect aga i nst the

a

band o ne d claims and that he cann ot r ecover attorney ’ s fees related to th os e c laims , regardless of whethe r appel lees prese nted a prima facie case o f the ir essential elements

. T he nonsuit of claims challeng ed in a TCPA m otion to di smiss does not “ entirely
moot ” t he TCP A motion because t h e mo vant may “ continue to pursue their requests for attorney’s fees incu rred in defending those claims prior to their vo luntary dismissal, as well as for the sanctions the Act would prescribe. ” Crai g v. Tejas Prom o tions, L L C , 55 0 S.W.3d 287, 293 (Tex. Ap p.

— Au stin 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 pe t. ) (qu oting
CT L /Thompso n Tex., LLC v. Starwood Homeo wner ’ s Ass ’ n , 3 90 S.W.3d 2 99, 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

- C V, 20 18 WL 3118601 , at *13 (T ex. App.

— Houston [14th Dist.] June 26, 2018, pet. denied) (me m. op.) ; Rauhau ser v. McGibney , 508 S.W.3d 377, 381 (Tex. App.

— Fort Worth 2014, no pet.), overruled on other grou nds by Hersh , 526 S.W

. 3d at
4 6 7

.10 Appellees also argue that because they dropp e d their disparagement and tor ti ous interference claims , as opposed to no nsuiting their lawsuit altog ether, the TCPA should not be applied to those claims. Although we might agree that “ the polic y of det e rrence of the filing of

non - meritorious l awsuits ” wo uld be bet ter served by allowing a party facing a TCPA motion to amend its pleadings base d on “ the subsequent recogni tion of facts , ” the TCPA is not written to allow a party to esc ape its attorne y ’ s fee p rovisions by amendment or nonsuit, as, fo r 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 non moving party
may non s uit claim and avoid operation of rule and assessment of attorney ’ s fees and costs)

. We hold that ap pellees ’ abandonment of two of their claims did not affect Amini ’ s right to see k attorney ’ s fees under the TCPA as to those cl aims. See McDonald O i lfie ld , 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 in dependent claims for a ffirmati v e relief

. ” (emphasis added) ) ; Gask amp , 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 ’ ab andon ment of their claims for to r tious in t erference and b usiness disparag ement did not ba r Amini fro m seeking TCPA remedies as to those claims. We next consider whe ther the TCPA applies to appellees ’

c laims against Amini.

Does the TCPA apply? A ll of a ppellee s ’ clai ms

— to rtious interfe r ence with a contract , business disparage ment , and privat e nuisance

— a r ise out of Amini ’ s complain ts about noise em an ating11 from the hospital and, relatedly, the hospital ’ s operations and use of the land it leased from NCC

. T hey asserted that Ami n i had made repeated and “ v o ci ferous ” noise complain ts despite Cit y i nspectors c he ck ing on the complaints a nd never c it ing the h o spital for any vi olati ons ; that he

“ publishe[d] and air [ ed ] his grievan ces ” “ [v]ia hundreds of emails and phone calls , video
f oo tage, meetings, conversat i on s and o t her comm unications ” ; and that he emailed Hi ll and
NCC ’ s HOA to threaten lega l action if the HOA d id not cancel the lease with the hospital

. A ppellees charact erize Am ini ’ s behavior as “ abusive, threatening, and har assi ng ” and contend
that thei r c laims ar e related to this “ tortious con duc t , ” not to hi s exercise of his constitutional rights

. Amini , on the other hand, argues that his communication s related to matter s of public

concern because they involve “issues of h ealth and s afety, along with ec o nomic, en v ironmental, or community welf ar e ,” explaini ng that they related to his and his neighbors’ mental and emotional health and to appellees ’ inter feren ce with NCC resident property rights and the overall welfare of the N CC communi ty . He also argues t hat his c o ntact ing the City was an exer cis e of his ri gh t to p etition. Despite appellees ’ characteri zation of Amini ’ s behavior as “ t ortious, ” their claims arise from Amini ’ s campaign of making noise co mplaints to Benar yeh, other h ospi tal staff, the
NC C h o m eowner ’ s association and boa r d of direc to rs , and the Ci ty of Austin. In his emails , Amini stated that the noise was distu rbing his sleep and enjoyment of his property and that other neighbors had also been “ experienc ing the same distu rbance ” by barking d ogs and h a d been woken “ in the middle of t he night fo r q uite some time now ” b y the garbage collection

. H e also sought assis tance from the City in solving issues he believed ar ose out of the hospital ’ s violation of noise or zoning ordin ances. This case i s s imilar t o the f acts as discussed by ou r sister cour t i n Garton , 2017 WL 6884451 , at *4

- 5 , in tha t ap pellees ’ claims are based on facts “ broader than12 the al leged ve rbally abusive statements

. ” A lt hough Amini grew so frustrated that he all egedly used “ ina p propr iate st atements and conduct , ” the “ un derlying ba sis which pro mpted [his] actions
was a matter of public concern. ” See id. At heart, appellees complain of Amini ’ s repeated emails and complaints ab out the n oise , regardless of the a ppropriateness of h i s languag e
. Given the broad language of th e TCPA, w e concl ude that Amini showed that the conduct on which appellees ba se their claims

— his repeated comp l aints that he and his neighbors were being wo ken over and over again by late

- night noise from the hos p ital

— w as r e lated to community well

- being a nd , potenti ally, t o health and safety and, therefore , was made in connectio n with a matter of public concern

. See former Tex. Civ. Prac. & Rem. Code § 27.00 1 (7 )

. Except under very lim ited circu mstances, t he First Amendment protects speech, including spee ch that som eone finds annoying or even abusive

. See Erznoznik v. City of Jacksonville , 422 U.S. 205, 209

- 10 (1975) (First Amendment limits government from cen soring speech, even when it “ offe n ds our esthetic, if n o t our pol i tical and moral, sensibilities ” ); Operatio n Rescue

- Nat ’ l v. Planned Parenthood of Hous

. & Se. Tex

. , Inc. , 975 S.W.2d 546, 555 (Tex. 1998) ( “ Speech is protected even when the subject or manner of expression is uncomfortable

. ” ) ; C ommis s ion for Law y er Discip l ine v. Benton , 980 S.W.2d 425, 446 (Tex. 1 998) (Gonzales, J., dissenting) ( “ The Supreme Court ’ s First Amendment analysis has generally started with a presumption that all speech is protected. It has found expression fallin g within only a few ve r y narrow c ategories of speech to lack sig nificant Fi rst A mendment protection. ” ) . And, in the context of the first step of our TCPA an alys is , asking whether the TCPA applies in the first place , we do not consider whether the commu n ic ations were defamatory , harassin g , or otherwise actionable

. See Elite Auto Body LLC v. Autocraft Bodywerks, Inc. , 520 S.W.3d 191, 20 4

- 0 5 (Tex. App.

— Austin 2017 , pet. dism ’ d ) ( whether13 communication was improper and th us actionab le is not relevant in first part of TCPA analysis ) ; Garton , 2 017 WL 6884451, at *6 ( a lthough defendant ’ s “ method and manner [of communicating her gr ievances ] could be viewed as inappropriate, ” her statements “ were made in the course of communicating a matter of public concern, which falls under the protec t ion of th e TCPA ” for
purposes of determin ing whether TCPA applies ) ; Rauhauser , 508 S.W.3d at 384 n.4 ( “ proof of protected speech is not part of a defendant ’ s initial burden under section 27.005(b) of the TCPA; instead, a plaintiff ma y offer proof of unpro t ected spe e ch by a defendant as part of ” e stablishing
it s prima facie case ); Kinney v. BCG Attorney Search, Inc. , No. 03

- 12

- 00579

- CV, 2014 WL 1432012, at *5 (Tex. App.

— Austin Apr. 11, 2014 , pet. denied ) (mem. op.) ( “ BCG contends that Kinney ’ s statements do not relat e to free speech because they we re false an d defamatory and thus not constitutionally protected , ” but w hether statements were defamatory “ is reviewable in the second part ” of TCPA analysis )

. Amini also showed that h is conta ct ing the City to make noise or z oning complain ts was related to t he exerci se of h is right to petition

. See Tex. Civ. Prac. & Rem. Code § 27.001(4) ; State ex rel. Best v. Harper , 562 S.W.3d 1 , 13 (Tex. 2018) ; Ho lcomb v. Walle r Co unty , 546 S.W.3d 833, 839

- 40 (Tex. App.

— Houston [ 1st Dist. ] 2018, pet. denied ) ; Ramsey v. Lynch , No. 10

- 12

- 00198

- CV, 2013 WL 1846886, at * 1

- 2 (Tex. App.

— Waco May 2, 2013 , no pet. ) (mem. op.)

. A mini t hus demonstrated by a pre p onderance of the evidence
that a ppellees ’ claims , both a bandoned and live, are based on, related to , or in response to h is

exer cise of his righ t to free speech or his right to petition and that the TCPA applies , and the burden shifted to appellees to es ta blish by clear and specific evidence a prima facie case for each essential elem e nt of eac h claim. See Tex. Civ. Prac. & Rem. Code § 27.0 0 5(b) , ( c ) ; Hers h , 526 S.W. 3d at 468

.14 P rima facie case Amini established that the TCPA applies to appellees ’ claims

. A ppellees were therefore required to present clear and s pecific e vidence esta blishing a p rima facie case for each

essen tial elemen t of their claim s of tor tious i n terference with a contract, business disparagement, and private nu isance

. 6 See Tex. Civ. Prac. & Rem. Code § 27 .005(c).

T

ort ious interference with existin g cont ract
T he element s of tortious interference wit h an existing contract a re : (1 ) an existing

co ntract subject to i nterference, (2) and a willful a nd inte ntional act of interference with the
contract (3) that proximately caus ed the plaintiff ’ s injury and (4) that c a used act ua l d amages or loss. Prudential I ns. Co . of Am. v. Fin anci al Review S ervs ., Inc. , 29 S.W.3d 74, 77 (Tex. 2000)

. A defendant may neg ate lia bility b y showing that his conduct was privileged or justified

. Id

. at 77

- 78. “To prevail on a torti ous in t erference c la im, a plaintiff must present evide nce th at the defendant interfe red with a speci fic contract ”

— that “ some obligatory provision o f a contract has been breached. ” Bet ter Bus. Bureau of Metro. Hous

. , Inc. v. J ohn Moore Servs., Inc. , 441 S. W.3d 3 45, 361 (Tex

. App.

— Housto n [1st Dist. ] 2013 , pet. deni ed ) (quoti ng Funes v.
Vi llatoro , 352 S.W .3d 200, 213 (Tex

. App.

— Houston [14th Dist.] 2011, pet. denied) )

. In t heir response to Am i ni ’ s TCPA motion, a ppellees presen ted the following argument as to the second elem en t

— willful and intentional int er ference :

6 As we explained earl ier, d es pite appelle es having dropped their claims for torti ous interference and business d isparagement, the potential fo r Amini to recover attorney’s fees related to those claims requires us to analyze his TCPA motion as to those claims, in addition to appellees’ live claims for private nuisance.15 The Plaintiff [the ho s p ital ] can meet its burden to p rove willful and inten tional interference. B ecause t he proclaimed purpose of the litigation was an attempt to get t he HOA to enforce his colorable right to enfo rcement of co nt ract ual provis ions, if it is true as Plainti ffs ’ allege and can demo nstrate, tha t the statements and c onduct of Defendant go beyond t he ri ghtful exercise of those TCPA

- protecte d rights into violative conduc t, a reasonable fact finder co uld c onsider evide nc e of the wrong ful conduct of Defe ndant against [the hospital], a fel low Member, sufficient to cons ti tu te breach of the contra ct by co ntravention of the mutual assent between Me m bers to resolve differences u nder the contract by the means spec ified there in

. Furthermore, t he Members of the HOA share duties to one another and the common interests of the HOA org a nization as indicated by the Defendants himself and the HOA i s in turn responsible and liable for the actions of Members as against othe r Members. A re asonable infer ence could be drawn that by violating the fidu cia ry, interest

- ori ented , and good fa ith dispute resolu tion duti es arising out of the contract, that the contract was breached to [the hospital’s ] injury.
[HOA attorney] Conn ie Hey er ’s affida vit a lso establishe s that i n r esponse to bad faith, intentionally an d knowingly fals e statements by Defendant , the HOA was requi red to engage in investigations related to the complaint in compliance with its du ty to Defendant as a Member c ausing inconvenience , delay, and exp ense and th erefore injury to [the hospital] , anot her Member. Thi s is yet another example of the minimum q uantum of evidence by which a reasonable inference that, because Defendant ’s independ ently wrongful conduct res ulted in the breach of a duty arising o ut of a con tractual relationship by making the HO A responsible fo r taking actions in the name of one Membe r which were detrimental to another Member when the complaining Member was acting in bad faith and with intent to cause injury (i.e. m ot ivated by frus tration), t he contract between [the hos pital ] and the HOA was inj uriously interfered with by the Defendant

. ( Record citation s omitted.) Although appellees se em to assert that the hospital i s a member of the HOA, th e evidence in the rec ord d oes not reflec t that fact

. And , regardless of whether Amini in tended to ha rass Heyer or members of the HOA , 7 such action cannot be relied upon by appellees i n their

7 Heyer averred t hat she had exchanged numerou s emails with Amini in her capac ity as the HOA’s attorney; that Amini had sent “duplicative emails to the Neely ’ s Can y on HO A and his rep resentatives” and made “numerous phone ca lls to the association a nd its representative desp ite a request that he not do so ”; that Amini tol d Heyer that he would continue to contact her16 claims against Amini. Finally and most importantly, t he record does not r eflect that NC C ’ s lease with t he hospital was terminated or was ren ego tiated to the hosp ita l ’ s detriment. Appellees did not establish a prima facie case of eac h essential elemen t of tortious interference , and the tri al
court ther efore erred in denying Ami ni ’ s motion to d ismiss as to t hat claim.

B usiness disparageme nt To preva il on a busin ess disparagement claim, which is similar to a defamation claim, the plaintif f must establish that (1) the defendant publishe d fa lse a nd disparaging informati on about t he plaintiff ’ s c ommercial inte rests , (2) with malice, and (3) without privi lege, and (4) that the d ero gatory pub lication resulted in special da mages to the plaintiff

. In re Lipsky , 460 S.W.3d 579, 591

- 92 (Tex. 2015) ; Waste Mgmt. of Tex

. , Inc. v. Texas Dis posal Sys. Lan df ill,
Inc. , 434 S.W.3d 142 , 155 (Tex. 2014 )

. Appellees a sserted that Am ini “ engaged in publication of disparaging word s ” by
mak ing “ dup lic ativ e reports and compla int s to various bodies ” despite know ing that his earlier complaints had be e n “ cate goricall y refused ” becau se “ all rel evant authorities cons idered [the ho spital] to be in compliance with all regulations or duties. ” They further asse rted that Amin i made “ several untrue statement s , ” including to hospital employee s , claiming the ho s pital was viola ti ng lease, code , or zoning restrictio ns
. Appellees acknowl edged that Amini never mention ed the qualit y of the hospital ’ s veterinar y services but insisted that :

and the HOA until he received “an upda te with corrective measure or an action plan” or “an adequate response in writing”; that despite he r request that Amini ceas e co mmunications with her, he e mailed her “a len gthy response , asserting his right to submit as many complaints regarding [the hosp ital] as he wishes”; and that she believed Amini “intended to annoy or har ass me and/or other HOA representatives until he re ceiv ed a response he determin ed to be favorable. ”17 the known false allegation that an a nima l medical service provider is in violat ion of rele vant l oca l and/or st ate authori ty re gardin g regulations of anima l care facilities or property use is disparaging in the field of its p ra cti ce even though it d oes not specially degrade the provision of its p rimary services becaus e it dem onstrates lax regulatory c ompliance in a field wher e regulato ry compliance is essent ial to that practice

. In essence, a ppellees seem to argue that by complaining to Bena ryeh, hospital employees, Hill, Heyer, and the City about the ho spital ’ s noise and use of the le ase d land, Amin i disparaged the hospital ’ s overall business practices and, by extension, its profession al reputation

. A cla im for busin ess disparagement “ does not seek to redress dignitary harms to the b usiness ow ner, but rather redresses aspersions ca st on the busin es s ’ s commercial product or activit y that diminishes those i nterests

. ” Lipsky , 460 S.W.3d at 5 91

. T he complained

- of statements must b e defamatory. Rehak Creative Servs., Inc. v. Witt , 4 04 S.W.3d 716, 728 (Tex. App.

— Houston [14th Dist.] 201 3 , pet. denied ) , disapproved o f on other grou nds by Lipsky , 460 S.W.3d at 5 88, 591 ; MKC Energy Inv s
. , Inc. v. Sheldon , 182 S.W.3d 372, 377 (Tex. App.

— Beaumont 2005 , no pet. ) ; Am erican Energy Servs., Inc . v. Union Pac. Res. Co. , No. 01

- 98

- 01264

- CV, 2001 WL 953736, at *9 ( Te x. App.

— Houst on [1st Dis t

. ] Aug. 16, 2001 , no pet. ) (not d esignated for publicatio n ) ; Delta Air Lines, Inc. v. Norris , 949 S.W.2d 422, 427 (Tex. App.

— Waco 1997 , writ denied )

. A ppellees were therefore requ ired to provide clear and specific evidence that Am ini publi shed defamatory inf ormation about the hospital ’ s commercial prod uct or activit y that d imi nished the hospital ’ s comme rcial interests

. S ee Lipsky , 460 S.W.3d at 5 91 ; MKC Energy , 182 S.W.3d at 3 77

. O n this record, however, t here i s no evidence fro m which a fact finder cou ld conclude that Amini ’ s comp laints some how defamed or impugned the hospital’s commercial product , activity , or reputation.18 Nor did app ellees establish a prima facie cas e as to damages

. In their response to
Amini ’ s TCP A motion a s to the eleme nt of speci al damages , appel lees a sserte d :

First, there is no requirement t hat special damages be specifically enumerated, especially at the early dismissal stage immediately followi ng pleading.

. . . Proof of lost sales, trad e, or dealings is not a requi remen t but merely a series of examples o f pecuniary loss; pecuniary loss in cludes any demonstrable financial injury proximat ely caused by the violative activity. A reasonable fact f inder evaluating [the hospital ’s] evidence on its face could r easonably in fer t hat Am ini’s complaints inducing the creation of the wall were motivate d by the same malice and proximately caused by the leverage he wrongfully obtained in negotiations with [th e hospital] by knowingly making repeated comp laint s already ad

judicated by the respec tive exclusive authorities as baseless.
Although appellees see m to asser t that their building of the sound wall should be considered special damages, the conduct they al lege to be wrongful

— Amini ’ s “ vociferous , ”

“ du plicative , ” a nd “ har assing ” c o mplaints a bout noise and t h e hospital ’ s use of the leased land

— occurred after the wall was built

. 8 Indeed, Amini averred that the building of the wall abated his
initial co mplaints and that he only started to complain anew af ter the hospita l starte d usin g areas of the leased land th at were not shielded by the sound wall. “ B are, basel ess opinions do not create fact questions ” and are not “ a sufficient substitute for the clear and sp ecific evidence required to establish a prima f acie case und er the TCPA. ” Lipsky , 46 0 S.W.3 d at 592 . Instead,

an assertion of damages “ must be based on de monstrable facts and a reasoned basis ” rather than

“ general averment s of direct economic losses a nd lost profits, without more

. ” Id

. at 593. Here,

8 Amini com plained in 201 4 about being woken up by barking but then ceased his complaints for about a year after the wall was built . H is complaints resume d in 2015 , when the garb age collection began to dis turb his sleep and the hospit al began to ex ercis e dogs in an area beyond the reach of the wall . I n 2017, the f requency of his emails to Ben ar y eh and H ill escalated and he resumed filing complaints with th e City

.19 as in L i ps ky , the recor d is devoid o f an y specific facts illus trating how Amini ’ s alleged remarks about the hos pital ’ s noise or code or zo ning violations caused an y special damages. See id.
A ppellees did not carry thei r burden of bringing for th a prima facie case of at leas t
t wo el ements of business disparagement, and the trial co urt therefore erred in n ot grant ing
Amin i ’ s TCPA motion as to that claim.

P rivate nu isance Initially , we note that “ nuisance is not a c ause of action, but a type of leg al injury

. ” Town of Dish v

. At mos Energy Corp. , 519 S.W.3d 605, 607 n.2 (Tex. 201 7) (citing
Crosstex N. Tex

. Pip eline, L. P. v. Gardiner , 505 S.W.3d 580, 59 4

- 95 (Tex. 2016) ) ; see also
C

rosstex , 505 S.W.3d at 594

- 95 ( “ t he t e rm ‘ nu isance ’ does not refer to the ‘ wrongful act ’ or to the ‘ re sulting dam ages, ’ but only to the legal inj ury

— the interference with the use and enjoyment of property

— that may result from the wrongful act and result in the compe nsable damages ” ); Dealer Com put

. Servs., Inc. v. DCT Hollister Rd, LLC , 5 7 4 S.W.3d 610, 62 1

- 2 2 (Tex. Ap p.

— Houston [ 14th Dist. ] 2019 , n o pet. ) ( “ nuisance does not itself constitute wrongf ul

con duct or cause of injury; rather, nuisance is a type of injury , ” and plaintiff s should thus a llege

“ intentional conduct or negligence with respect to ” al le ge d nuisance inj ur ies ); St. Anthony ’ s Minor Emergency Ctr., L.L.C. v. Ross Nicholson 2000 Separa te Prop. Tr. , 567 S.W.3d 792, 799
& n .8 (Tex. App.

— Houston [14th Dist.] 2018 , pet. denied ) ( “ A def endant can be liable for creating a nuisance b ased on neglig en ce or other c ulpable conduct. ” ) ; Bolton v. Fisher , 52 8 S.W.3d 770, 77 8 (Tex. App.

— Texa rkana 2017 , pet. denied ) ( pla intiff sued f or nuisance , but

“ [b] ecause nuisance is not a cause of action, the se separate claims cannot stand ” ; although “ t h e nuisance, or l eg al injury, alleged in Bolto n’s pe tition could have given rise to a cause of action,20 such a cau se of action was not ” ple d )

. Thus, because appellees did not plead an actual cause o f action , the ir claim for “ private nuisance ” cannot stand. See Bolton , 5 28 S .W.3d at 77 8.
E ven if we interpret their pl eading s as asserting a n actionable claim of negligent

or intentional conduct giving rise to a nuisance injury, appellees have not presented a prima facie case that they suffered such an injury

. A private nuis an ce “ is a c o ndition that substantially
int erferes wi th the use and enjoyment of l and by causing unreasonable discom fort or annoyance to persons of or dinary sensibilities attempting to use and e njoy it.” Crosstex , 505 S.W.3d at 59 3 (quoti n g Holubec v. Bra nd enberger , 1 11 S.W.3d 32, 37 (Tex. 2 003) ) ; see also Bolto n , 528 S.W.3 d at 778 ( “ A priv ate nuisance affects an individual or a small number of individuals rather than the public at large

. ” ( quoting M athis v. Barnes , 377 S.W.3d 926, 930 (Te x . App

. — Tyler 2 01 2, no pet.) ) )

. In evaluating whether a n int erference “ is ‘ substantial ’ and causes

‘ dis comfort or annoyance ’ that is ‘ unreasonable , ’ ” so as to amount to a legal injury, we apply an objective standard

. Crosstex , 505 S.W.3d at 59 4

- 9 5 , 599

. Al though a def en dant may ca use a nuisa nce injury by interfer ing wi th “ a wide variety of the plaintif fs ’ interests in the use and enjoyment of their property , ” see id

. at 596 ( “ It may, for example, cause physical damage to t he plaintiffs ’ property, econ o mic h arm to the
p ro perty ’ s mar ket value, harm to the plaintiffs ’ health, o r psychologica l harm to the p laintiffs ’

‘ peace of mind ’ in the use and enjoyment of their property

. ” ) , we have not found cases in which email s or simi lar communications have been he l d t o so subst anti al ly inte rfer e with a plaintiff ’s use and enjo yment of it s property as to be a nuisance

. Nor ha ve appellees cited any such cases. Our survey of nuisance cases reflect s sit uations in which a def endant is found to have ca used a nuisanc e by ca using floodi ng on the pla intiff ’s property , see, e.g. , Barnes v.
Mat his , 353 S.W.3d 760, 763

- 64 (Tex. 2011); emitting noxious o dors , see, e.g. , Nat ural Gas21 Pipeline Co. of Am. v. Justiss , 397 S.W.3d 150, 154 ( Tex. 2012) ; discharging wa ter onto the
p l aintif f

’s land, se e, e.g. , Tenn essee Gas Transmission Co. v. Fromme , 269 S .W.2d 336, 338 ( Tex. 1954) ; or invading the plaintiff ’s land with dust, noise, or bright lights , see, e.g. , Schn eider
Nat ’l Carriers, Inc. v. Ba tes , 147 S.W.3d 264, 26 9

- 70 (Tex. 200 4 )

. Essentially, t he common thr ead through Texas nuisance jurisprudence is that the defendant ha s invad ed the plaintiff ’s property by some physical means , creat ing a “ condition ” that subst antially interferes w ith the plaintiff ’ s use and enjoyment of its la nd

. 9 See Cr os stex , 505 S.W.3d at 593, 595

- 600 ; Schn eider
Nat ’l , 147 S.W.3d at 27 3

- 7 7 (discussing various types of nuisances in discussi ng temporary and permanent nuisance s ) ; Serafine v. Blunt , No. 03

- 1 6

- 00131

- CV, 2017 WL 2224528, at *5 (Tex. App.

— A u stin May 19, 2017 , p et. denied ) ( mem. op.) ( “ private

- nuisance claims typic ally involve an invasion of th e plaintiff ’ s property by light, sound, odor, or a foreign substance , ” and

“ aesthetic ” nuisance claims are not recogni zed )

. A ppellees accu sed Amini o f creating a nuisan ce by his repeated emails to
Benar yeh, H ill, and other s related to th e hospital and NCC an d his repeated c omplain ts to the City, which result ed in mult iple investigations

. Even a ssuming that such conduct can rise to the level of caus ing a nuisance injury , a ppel lees had the bur den of showing clear and specific evidence that Am ini ’ s conduct interfere d with appellees ’ use and enjoyment of their property in a

9 In asking whet her a defendant has caused a nu isance injury, the suprem e court has instruc ted us to con sider factors such as: the character and nature of the neighborhood; the parties’ land usage and social expectations; the location of each party ’s land; the extent to w hich others in the area are usi ng their land similarly; th e “social utility of each prop erty’s usage”; the likelihood that the defendant’s conduct will interfere with the plaintiff’s use and enjoyment of its land; “the magnitude, ex tent, degree, frequency, or duration of the interfe renc e and resulting harm”; “t he relative capacit y of each par ty to bear the burden of ceasing or mitigating the usage of their land”; the timing of the conduct that created the conflict; the d efendant’s mo tive in causing the inte rference; and the interests of the community and the pub li c at large. Cros stex N. Tex

. Pip eline, L. P. v. Gardiner , 505 S.W.3d 580, 600 (Tex. 2016)

.22 substantial and unreasonable way
. See Cros stex , 505 S.W.3d at 595, 599. A lthough A mini ’ s conduct mig ht hav e annoyed and eve n in co nvenienced appelle es , w hen conside red under the applicable objective standar d, there is simply no evidence that the effect of Amini ’ s behavior

was “such as would distur b and annoy persons of ordinary sensibil i ties, and of ordin ar y ta stes and habi ts.” Id

. at 59 6

- 99 (quoti ng Sherman G as & Elec. Co. v . Biden , 123 S.W. 119, 120 (Tex.
1 909) )

. Appellees con tinued to operate the animal hospital , there was no evidence that the hospital lost employees or customers, and althoug h Benaryeh a verr ed t ha t he wa s concerned that Amini knew where he lived and would harass him at home, he did not pro vide ev idence that
Amini ’ s emails substan tially and un reasonably inter fered with Benary eh ’ s use and enjoyment of
hi s home

. W e hold that app e llees did not pr esen t a prima f acie case that Amini ’ s conduct ros e to the level o f causing a nuisance inj ury. The trial court thus erred in failing to grant Amini ’ s TCPA motion as to app ellees ’ private nuisance cla ims.

“ A

ffirmative defenses ” to Amini ’ s TC PA motion Appe ll ee s assert that they can establish two “ affirm ativ e defenses ” to Am ini ’ s motion to di smiss : quasi

- est oppel , because Amini accepted the benefits of the sound wall , and uncl ean hand s in the form o f “ bad faith claims, negotiation by dur es s, and harassment and

re ven ge
. ” T hey argue that because Amini ’ s motio n to dismiss is a plea for affirmative relief, it is

a “ pleading ” subject to the as sertion of an affi rmative defense under the rules of civil procedure , 10 and insi st that because the TC PA “ does not abrogat e or lessen a ny other defens e,

10 See Tex. R. Civ. P. 94 (“In pleading to a preceding pleading, a party shall set forth affirmatively acc ord and satisfactio n, arbit rati on and award, assumption of risk, contributo ry negligence , discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, re lease, res judicata, sta tute of frauds, sta tute of limi tations, waiver, and any ot her matter consti tuting an avo idance or affirmative defense.”).23 remedy, immunity, or privilege available un der other constitutional, statutory, case, or common law or rule provisions , ” see Tex. Civ. Prac. & Re m. Code § 27.011(a), appellees may ass e r t affirmative d ef enses to his motion to dismiss.
Al though app elle es ’ argument is novel, it is unpersuasive. The TCPA is intended
to encourage and safe guard t he exercise of citizens ’ constitutional rig hts, i d . § 27.002, and we are instructed to co ns tru e the act “ libera ll y to effectuate its pur pose and inte nt fully , ” id

. § 27.011(b). Section 27.005(c) addresses the assertion of an affirmative defense , explaining that such a defense may be grounds for dismissa l even if the plaintiff carrie s its pri m a - fac ie

- case burden

. Se e id . § 27.005( d ). It does not, how ever, pro v ide that the plaintiff may assert a n

a ffirmative def ense against a defensive TCPA motion

. I ndeed , i t would stym ie the TCPA ’ s inten ded purpose if appe lle e s, who did not me e t their burden o f establishing a pri ma facie case of their cl aims, could c lai m “ affirmat ive defenses ” to bar Amini from see k ing TCPA relief

. Further, we dis agree that Amini ’ s so - called “ accept ance ” of “ the benefit ” o f the sound wall

— appellees ’ early attempt to abate th e noise problems

— someh ow barred him from making later compla in ts when the noise resumed due to appell ees ’ activities in an area beyond the reach of the wall and, moreover , barred him from seeking TCPA remedies when sued for his re ne wed complaints

. W e also d is agree with appelle es ’ circular argument tha t A mini ’ s ong oing campaign of making complaints amount ed to “ un cle an hands ” such that he cannot mount a TCPA defense when sued for that very conduct. I f the tr ial court premised its failure to grant Amini ’ s TCP A motion on appe l lees ’ a ssertion of their “ af firmative def e nses , ” such a decision was err oneous. 11

11 H aving determined that Amini established that the TCPA applied and that appellees did not carry their bu rden of showing a prima faci e case of each element of e ach claim, we need not consid er whether Amini es t ablished his own asserted affirmative defenses.24 S

anctions F inally, we turn to appellees ’ motion for sanc tions , in which they argu e that Amini made fals e statements to this C ourt and the trial court in an at tempt to “improperly

e xclude evide nce v ital and ma terial to” app ellees’ arguments. Amini and appellees fi led their brie fs in June and August 2018 , respectively

. In Amini ’s brief, he state d , “Plaint iffs provided Amini with an affidavit from Heyer an d a second affidavit from B en aryeh, but both are absent fro m Plaintiffs ’ file d response in the Clerk ’s Record. ” In his reply brief, filed in early September, Amini reiter ated his argument that the “Heyer aff idavit is not part of the cl er k ’s record, and th e C ourt shoul d not consid er it. ”
On September 12 , a ppellee s s ent a letter to the trial court cl erk asking for a supplemental clerk ’s record containing Heyer ’ s affidavit and Benaryeh ’ s declaration a nd expl aini ng that those documents w ere filed in the trial co urt as exhibits to appe ll ees’ response to Amin i ’s TCPA

m oti on but omi tted from the cl erk’s record. Amini objected to the i n clu sion of those exhibits in the appellate record , both in this Court and in t he trial court , stating that “ the trial c ourt’s rec ord s show Appellees did no t file those two exhibi ts with Ap pel lees’ response to Amini’s motion to dismiss ” and “ did not otherw ise submit the exhibits to the trial court before it denied Amini’s motio n to d ismiss by operation of law

. ” Appellees then filed a motion for sanctions, a ss ert ing that Amini’s l etters obj ect ing to the supplement ation of the record we re de monstrably false , filed i n bad faith, and an attempt to gain an unfair advantage through deceit . They arg ue that Amini “actually knows” that the two documents were filed w it h appellees’ TCPA res pon se but omi tted from the clerk’s record due to cleric al er ror and tha t Amin i was citing to a version of the clerk’s record “he knows to be faulty and inac curate” to giv e us an “inco mplete and false v ersion of the trial court record .”25 Appellees use words l ike “egr egio us,” “opportunistically and dishonestly,” and “sub terfuge ” to describe Amini ’ s cond uct related to the omitted documents. Amini has responded, s ta ting that his objection letters “ were accurate ” and ma de in good faith. He no te s that although h e had pointed out the documents ’ omission from t he record in his briefing , app ellees did not seek to have the record supplemented before filing their brief and instead attached a copy of Heyer ’ s affidavit in th eir appendix and cited to t ha t document throug h out their br ief

. 12
We have reviewed the parties ’ filings related to sanc tions , the c lerk ’ s record s ( both original and s upplement al ), and the rep orter ’ s recor d fro m a hearing on the parties ’ motions to dismiss a n d motion to strike

. We no te that the recor d before us d emonstrates significant ga mesmanship even by TCPA standards, including by appellees in their filings

re lated to how the TCPA should be applied , 13 a nd we refuse to part ic ipate in such behavior

. Havi ng considered the issues ful ly , we deny appelle es ’ m otion fo r sanctions.

CONCLUSION We have held both that Amini carried his burden of showing that the TCPA applied to all of appellees ’ claims and that a ppellees did not carry t heir burden of showing a

12 It is true that appellees referred to Heyer’s affidavit only through citations to their appendix, whereas many o f their other citation s are to documents as inclu ded in the clerk’s record. H ow ever, appelle es also cited to th e appendix version of at least one document that was included in the clerk’s record, and so their citing to the appendix version of Heyer’s af fi davit is not especiall y noteworthy.
13 A s we have note d , appelle es filed in the t rial court a “ Motion to Di smiss the Defendant ’ s Motion to Dismiss Un der the TCPA, Under the TCPA

. ” In addition, appellees filed in this Court a motion to dismiss Amini ’ s ap peal under the TCP A , ass ert ing that the appeal was a leg al action related to thei r exercise o f t he ir rights t o petiti on and free speech. We denied t hat motion to dismiss the appeal , explaining that the TCPA does not authorize an appellate

- level motion to dismiss. See Amin i v. S picewood Springs Animal Hos p., L LC , 550 S.W.3d 84 3 , 845

- 4 6 (Tex. App.

— Au sti n 2018, no pet.). A s the legislature seems to have acknowledged by its recent changes to the A ct, a t some po int the TCPA circular firing squa d has to stop

.26 pr im a facie case of at least o ne essential elemen t of each c la im. We therefore re verse the trial

c ourt ’ s deni al of Amini ’ s motion to dismiss by operation of law and render judgment granting his motion. B ec ause t he issue s of attorney ’s fees and sanctions un der the TCPA remain , w e

rema nd the cause to the trial court for further pro ceedings consisten t with this opinion and the
TCPA. See Tex. Ci v. Prac. & Rem. Code § 27 .009.

_________________________________ _________ Jeff Rose, Chief Justice Before C hief Justice Rose , J ustic es Triana and Smith Reversed a nd Remanded Filed: Novemb er 7, 2019