       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, Appellees




              FROM COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
     NO. C-1-CV-17-010712, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                           MEMORANDUM OPINION


              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


       1
          The TCPA was amended in the 2019 legislative session, but those amendments do not
apply to this lawsuit, which was filed before the amendments’ effective date. See Act of May 17,
2019, 86th Leg., R.S., ch. 378, §§ 11, 12, 2019 Tex. Gen. Laws 684, 687 (amendments to TCPA
apply “only to an action filed on or after” September 1, 2019).
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



                                                2
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 § 27.001(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 § 27.001(7)). Texas courts have repeatedly noted and

discussed the incredible breadth of the language used in the TCPA. See, e.g., 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, P.C., 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



       2
           Our recitation of the facts is taken from the parties’ pleadings, motions, and affidavits.
                                                   3
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


       3
         The lease provides that the land, described as “a paved parking area,” could be used by
the hospital “for a parking lot and a driveway . . . and for no other purpose.” As we will explain,
Amini complained repeatedly about the hospital’s use of the property, which he asserted was in
violation of its lease with NCC.
                                                 4
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

                                                5
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


       4
         Amini said he also included some of the hospital’s staff members on the email in the
hope that telling someone else “would cause something to change.”
                                                 6
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

                                               7
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




       5
          Appellees also argue that the TCPA is unconstitutional and that its unconstitutionality
“validat[es] the trial court’s denial of Amini’s motion.” However, the denial of Amini’s motion
by operation of law cannot be viewed as a determination on appellees’ challenge to the
constitutionality of the overall statutory scheme, and we will not consider their constitutional
arguments in this interlocutory appeal. Cf. Abatecola 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 constitutional challenge when denying motion
to dismiss, and appellate court could not address that challenge in interlocutory appeal from
denial of TCPA motion); Hearst Newspapers, LLC v. Status Lounge Inc., 541 S.W.3d 881, 894
(Tex. App.—Houston [14th Dist.] 2017, no pet.) (in interlocutory appeal from denial of TCPA
motion, appellate court lacked jurisdiction to consider separate order denying motion to declare
TCPA unconstitutional).
                                                 8
                          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.

                                                9
               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 the TCPA apply?

               All of appellees’ claims—tortious interference with a contract, business

disparagement, and private nuisance—arise out of Amini’s complaints about noise emanating



                                                10
from the hospital and, relatedly, the hospital’s operations and use of the land it leased from NCC.

They asserted that Amini had made repeated and “vociferous” noise complaints despite City

inspectors checking on the complaints and never citing the hospital for any violations; that he

“publishe[d] and air[ed] his grievances” “[v]ia hundreds of emails and phone calls, video

footage, meetings, conversations and other communications”; and that he emailed Hill and

NCC’s HOA to threaten legal action if the HOA did not cancel the lease with the hospital.

Appellees characterize Amini’s behavior as “abusive, threatening, and harassing” and contend

that their claims are related to this “tortious conduct,” not to his exercise of his constitutional

rights. Amini, on the other hand, argues that his communications related to matters of public

concern because they involve “issues of health and safety, along with economic, environmental,

or community welfare,” explaining that they related to his and his neighbors’ mental and

emotional health and to appellees’ interference with NCC resident property rights and the overall

welfare of the NCC community. He also argues that his contacting the City was an exercise of

his right to petition.

                Despite appellees’ characterization of Amini’s behavior as “tortious,” their claims

arise from Amini’s campaign of making noise complaints to Benaryeh, other hospital staff, the

NCC homeowner’s association and board of directors, and the City of Austin. In his emails,

Amini stated that the noise was disturbing his sleep and enjoyment of his property and that other

neighbors had also been “experiencing the same disturbance” by barking dogs and had been

woken “in the middle of the night for quite some time now” by the garbage collection. He also

sought assistance from the City in solving issues he believed arose out of the hospital’s violation

of noise or zoning ordinances. This case is similar to the facts as discussed by our sister court in

Garton, 2017 WL 6884451, at *4-5, in that appellees’ claims are based on facts “broader than

                                                11
the alleged verbally abusive statements.” Although Amini grew so frustrated that he allegedly

used “inappropriate statements and conduct,” the “underlying basis which prompted [his] actions

was a matter of public concern.” See id. At heart, appellees complain of Amini’s repeated

emails and complaints about the noise, regardless of the appropriateness of his language.

               Given the broad language of the TCPA, we conclude that Amini showed that the

conduct on which appellees base their claims—his repeated complaints that he and his neighbors

were being woken over and over again by late-night noise from the hospital—was related to

community well-being and, potentially, to health and safety and, therefore, was made in

connection with a matter of public concern.         See former Tex. Civ. Prac. & Rem. Code

§ 27.001(7). Except under very limited circumstances, the First Amendment protects speech,

including speech that someone finds annoying or even abusive.          See Erznoznik v. City of

Jacksonville, 422 U.S. 205, 209-10 (1975) (First Amendment limits government from censoring

speech, even when it “offends our esthetic, if not our political and moral, sensibilities”);

Operation 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.”); Commission for Lawyer Discipline v. Benton, 980 S.W.2d 425, 446

(Tex. 1998) (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 falling

within only a few very narrow categories of speech to lack significant First Amendment

protection.”). And, in the context of the first step of our TCPA analysis, asking whether the

TCPA applies in the first place, we do not consider whether the communications were

defamatory, harassing, or otherwise actionable.       See Elite Auto Body LLC v. Autocraft

Bodywerks, Inc., 520 S.W.3d 191, 204-05 (Tex. App.—Austin 2017, pet. dism’d) (whether

                                               12
communication was improper and thus actionable is not relevant in first part of TCPA analysis);

Garton, 2017 WL 6884451, at *6 (although defendant’s “method and manner [of communicating

her grievances] could be viewed as inappropriate,” her statements “were made in the course of

communicating a matter of public concern, which falls under the protection of the TCPA” for

purposes of determining 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 may offer proof of unprotected speech by a defendant as part of” establishing

its 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 relate to free speech because they were false and defamatory and

thus not constitutionally protected,” but whether statements were defamatory “is reviewable in

the second part” of TCPA analysis). Amini also showed that his contacting the City to make

noise or zoning complaints was related to the exercise of his 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); Holcomb

v. Waller County, 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.). Amini thus demonstrated by a preponderance of the evidence

that appellees’ claims, both abandoned and live, are based on, related to, or in response to his

exercise of his right to free speech or his right to petition and that the TCPA applies, and the

burden shifted to appellees to establish by clear and specific evidence a prima facie case for each

essential element of each claim. See Tex. Civ. Prac. & Rem. Code § 27.005(b), (c); Hersh,

526 S.W.3d at 468.



                                                13
                                        Prima facie case

               Amini established that the TCPA applies to appellees’ claims. Appellees were

therefore required to present clear and specific evidence establishing a prima facie case for each

essential element of their claims of tortious interference with a contract, business disparagement,

and private nuisance. 6 See Tex. Civ. Prac. & Rem. Code § 27.005(c).


Tortious interference with existing contract

               The elements of tortious interference with an existing contract are: (1) an existing

contract subject to interference, (2) and a willful and intentional act of interference with the

contract (3) that proximately caused the plaintiff’s injury and (4) that caused actual damages or

loss. Prudential Ins. Co. of Am. v. Financial Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).

A defendant may negate liability by showing that his conduct was privileged or justified. Id.

at 77-78. “To prevail on a tortious interference claim, a plaintiff must present evidence that the

defendant interfered with a specific contract”—that “some obligatory provision of a contract has

been breached.”     Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc.,

441 S.W.3d 345, 361 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) (quoting Funes v.

Villatoro, 352 S.W.3d 200, 213 (Tex. App.—Houston [14th Dist.] 2011, pet. denied)).

               In their response to Amini’s TCPA motion, appellees presented the following

argument as to the second element—willful and intentional interference:




       6
          As we explained earlier, despite appellees having dropped their claims for tortious
interference and business disparagement, the potential for 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.
                                                14
       The Plaintiff [the hospital] can meet its burden to prove willful and intentional
       interference. Because the proclaimed purpose of the litigation was an attempt to
       get the HOA to enforce his colorable right to enforcement of contractual
       provisions, if it is true as Plaintiffs’ allege and can demonstrate, that the
       statements and conduct of Defendant go beyond the rightful exercise of those
       TCPA-protected rights into violative conduct, a reasonable fact finder could
       consider evidence of the wrongful conduct of Defendant against [the hospital], a
       fellow Member, sufficient to constitute breach of the contract by contravention of
       the mutual assent between Members to resolve differences under the contract by
       the means specified therein. Furthermore, the Members of the HOA share duties
       to one another and the common interests of the HOA organization as indicated by
       the Defendants himself and the HOA is in turn responsible and liable for the
       actions of Members as against other Members. A reasonable inference could be
       drawn that by violating the fiduciary, interest-oriented, and good faith dispute
       resolution duties arising out of the contract, that the contract was breached to [the
       hospital’s] injury.


       [HOA attorney] Connie Heyer’s affidavit also establishes that in response to bad
       faith, intentionally and knowingly false statements by Defendant, the HOA was
       required to engage in investigations related to the complaint in compliance with
       its duty to Defendant as a Member causing inconvenience, delay, and expense and
       therefore injury to [the hospital], another Member. This is yet another example of
       the minimum quantum of evidence by which a reasonable inference that, because
       Defendant’s independently wrongful conduct resulted in the breach of a duty
       arising out of a contractual relationship by making the HOA responsible for
       taking actions in the name of one Member which were detrimental to another
       Member when the complaining Member was acting in bad faith and with intent to
       cause injury (i.e. motivated by frustration), the contract between [the hospital] and
       the HOA was injuriously interfered with by the Defendant.


(Record citations omitted.)

               Although appellees seem to assert that the hospital is a member of the HOA, the

evidence in the record does not reflect that fact. And, regardless of whether Amini intended to

harass Heyer or members of the HOA, 7 such action cannot be relied upon by appellees in their



       7
         Heyer averred that she had exchanged numerous emails with Amini in her capacity as
the HOA’s attorney; that Amini had sent “duplicative emails to the Neely’s Canyon HOA and
his representatives” and made “numerous phone calls to the association and its representative
despite a request that he not do so”; that Amini told Heyer that he would continue to contact her
                                                15
claims against Amini. Finally and most importantly, the record does not reflect that NCC’s lease

with the hospital was terminated or was renegotiated to the hospital’s detriment. Appellees did

not establish a prima facie case of each essential element of tortious interference, and the trial

court therefore erred in denying Amini’s motion to dismiss as to that claim.


Business disparagement

               To prevail on a business disparagement claim, which is similar to a defamation

claim, the plaintiff must establish that (1) the defendant published false and disparaging

information about the plaintiff’s commercial interests, (2) with malice, and (3) without privilege,

and (4) that the derogatory publication resulted in special damages to the plaintiff. In re Lipsky,

460 S.W.3d 579, 591-92 (Tex. 2015); Waste Mgmt. of Tex., Inc. v. Texas Disposal Sys. Landfill,

Inc., 434 S.W.3d 142, 155 (Tex. 2014).

               Appellees asserted that Amini “engaged in publication of disparaging words” by

making “duplicative reports and complaints to various bodies” despite knowing that his earlier

complaints had been “categorically refused” because “all relevant authorities considered [the

hospital] to be in compliance with all regulations or duties.” They further asserted that Amini

made “several untrue statements,” including to hospital employees, claiming the hospital was

violating lease, code, or zoning restrictions.        Appellees acknowledged that Amini never

mentioned the quality of the hospital’s veterinary services but insisted that:




and the HOA until he received “an update with corrective measure or an action plan” or “an
adequate response in writing”; that despite her request that Amini cease communications with
her, he emailed her “a lengthy response, asserting his right to submit as many complaints
regarding [the hospital] as he wishes”; and that she believed Amini “intended to annoy or harass
me and/or other HOA representatives until he received a response he determined to be
favorable.”
                                                 16
       the known false allegation that an animal medical service provider is in violation
       of relevant local and/or state authority regarding regulations of animal care
       facilities or property use is disparaging in the field of its practice even though it
       does not specially degrade the provision of its primary services because it
       demonstrates lax regulatory compliance in a field where regulatory compliance is
       essential to that practice.


In essence, appellees seem to argue that by complaining to Benaryeh, hospital employees, Hill,

Heyer, and the City about the hospital’s noise and use of the leased land, Amini disparaged the

hospital’s overall business practices and, by extension, its professional reputation.

               A claim for business disparagement “does not seek to redress dignitary harms to

the business owner, but rather redresses aspersions cast on the business’s commercial product or

activity that diminishes those interests.”    Lipsky, 460 S.W.3d at 591.        The complained-of

statements must be defamatory. Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 728

(Tex. App.—Houston [14th Dist.] 2013, pet. denied), disapproved of on other grounds by Lipsky,

460 S.W.3d at 588, 591; MKC Energy Invs., Inc. v. Sheldon, 182 S.W.3d 372, 377 (Tex. App.—

Beaumont 2005, no pet.); American Energy Servs., Inc. v. Union Pac. Res. Co., No. 01-98-

01264-CV, 2001 WL 953736, at *9 (Tex. App.—Houston [1st Dist.] Aug. 16, 2001, no pet.) (not

designated for publication); Delta Air Lines, Inc. v. Norris, 949 S.W.2d 422, 427 (Tex. App.—

Waco 1997, writ denied). Appellees were therefore required to provide clear and specific

evidence that Amini published defamatory information about the hospital’s commercial product

or activity that diminished the hospital’s commercial interests. See Lipsky, 460 S.W.3d at 591;

MKC Energy, 182 S.W.3d at 377. On this record, however, there is no evidence from which a

fact finder could conclude that Amini’s complaints somehow defamed or impugned the

hospital’s commercial product, activity, or reputation.




                                                 17
               Nor did appellees establish a prima facie case as to damages. In their response to

Amini’s TCPA motion as to the element of special damages, appellees asserted:



       First, there is no requirement that special damages be specifically enumerated,
       especially at the early dismissal stage immediately following pleading. . . . Proof
       of lost sales, trade, or dealings is not a requirement but merely a series of
       examples of pecuniary loss; pecuniary loss includes any demonstrable financial
       injury proximately caused by the violative activity. A reasonable fact finder
       evaluating [the hospital’s] evidence on its face could reasonably infer that
       Amini’s complaints inducing the creation of the wall were motivated by the same
       malice and proximately caused by the leverage he wrongfully obtained in
       negotiations with [the hospital] by knowingly making repeated complaints already
       adjudicated by the respective exclusive authorities as baseless.


               Although appellees seem to assert that their building of the sound wall should be

considered special damages, the conduct they allege to be wrongful—Amini’s “vociferous,”

“duplicative,” and “harassing” complaints about noise and the 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 complaints and that he only started to complain anew after the hospital started using areas

of the leased land that were not shielded by the sound wall. “Bare, baseless opinions do not

create fact questions” and are not “a sufficient substitute for the clear and specific evidence

required to establish a prima facie case under the TCPA.” Lipsky, 460 S.W.3d at 592. Instead,

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

“general averments of direct economic losses and lost profits, without more.” Id. at 593. Here,




       8
          Amini complained in 2014 about being woken up by barking but then ceased his
complaints for about a year after the wall was built. His complaints resumed in 2015, when the
garbage collection began to disturb his sleep and the hospital began to exercise dogs in an area
beyond the reach of the wall. In 2017, the frequency of his emails to Benaryeh and Hill
escalated and he resumed filing complaints with the City.
                                                18
as in Lipsky, the record is devoid of any specific facts illustrating how Amini’s alleged remarks

about the hospital’s noise or code or zoning violations caused any special damages. See id.

               Appellees did not carry their burden of bringing forth a prima facie case of at least

two elements of business disparagement, and the trial court therefore erred in not granting

Amini’s TCPA motion as to that claim.


Private nuisance

               Initially, we note that “nuisance is not a cause of action, but a type of legal

injury.” Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605, 607 n.2 (Tex. 2017) (citing

Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 594-95 (Tex. 2016)); see also

Crosstex, 505 S.W.3d at 594-95 (“the term ‘nuisance’ does not refer to the ‘wrongful act’ or to

the ‘resulting damages,’ but only to the legal injury—the interference with the use and

enjoyment of property—that may result from the wrongful act and result in the compensable

damages”); Dealer Comput. Servs., Inc. v. DCT Hollister Rd, LLC, 574 S.W.3d 610, 621-22

(Tex. App.—Houston [14th Dist.] 2019, no pet.) (“nuisance does not itself constitute wrongful

conduct or cause of injury; rather, nuisance is a type of injury,” and plaintiffs should thus allege

“intentional conduct or negligence with respect to” alleged nuisance injuries); St. Anthony’s

Minor Emergency Ctr., L.L.C. v. Ross Nicholson 2000 Separate Prop. Tr., 567 S.W.3d 792, 799

& n.8 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“A defendant can be liable for

creating a nuisance based on negligence or other culpable conduct.”); Bolton v. Fisher,

528 S.W.3d 770, 778 (Tex. App.—Texarkana 2017, pet. denied) (plaintiff sued for nuisance, but

“[b]ecause nuisance is not a cause of action, these separate claims cannot stand”; although “the

nuisance, or legal injury, alleged in Bolton’s petition could have given rise to a cause of action,


                                                19
such a cause of action was not” pled). Thus, because appellees did not plead an actual cause of

action, their claim for “private nuisance” cannot stand. See Bolton, 528 S.W.3d at 778.

               Even if we interpret their pleadings as asserting an 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 nuisance “is a condition that substantially

interferes with the use and enjoyment of land by causing unreasonable discomfort or annoyance

to persons of ordinary sensibilities attempting to use and enjoy it.” Crosstex, 505 S.W.3d at 593

(quoting Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003)); see also Bolton,

528 S.W.3d at 778 (“A private nuisance affects an individual or a small number of individuals

rather than the public at large.” (quoting Mathis v. Barnes, 377 S.W.3d 926, 930 (Tex. App.—

Tyler 2012, no pet.))).    In evaluating whether an interference “is ‘substantial’ and causes

‘discomfort or annoyance’ that is ‘unreasonable,’” so as to amount to a legal injury, we apply an

objective standard. Crosstex, 505 S.W.3d at 594-95, 599.

               Although a defendant may cause a nuisance injury by interfering with “a wide

variety of the plaintiffs’ interests in the use and enjoyment of their property,” see id. at 596

(“It may, for example, cause physical damage to the plaintiffs’ property, economic harm to the

property’s market value, harm to the plaintiffs’ health, or psychological harm to the plaintiffs’

‘peace of mind’ in the use and enjoyment of their property.”), we have not found cases in which

emails or similar communications have been held to so substantially interfere with a plaintiff’s

use and enjoyment of its property as to be a nuisance. Nor have appellees cited any such cases.

               Our survey of nuisance cases reflects situations in which a defendant is found to

have caused a nuisance by causing flooding on the plaintiff’s property, see, e.g., Barnes v.

Mathis, 353 S.W.3d 760, 763-64 (Tex. 2011); emitting noxious odors, see, e.g., Natural Gas

                                                20
Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 154 (Tex. 2012); discharging water onto the

plaintiff’s land, see, e.g., Tennessee 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., Schneider

Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 269-70 (Tex. 2004). Essentially, the common

thread through Texas nuisance jurisprudence is that the defendant has invaded the plaintiff’s

property by some physical means, creating a “condition” that substantially interferes with the

plaintiff’s use and enjoyment of its land. 9 See Crosstex, 505 S.W.3d at 593, 595-600; Schneider

Nat’l, 147 S.W.3d at 273-77 (discussing various types of nuisances in discussing temporary and

permanent nuisances); Serafine v. Blunt, No. 03-16-00131-CV, 2017 WL 2224528, at *5 (Tex.

App.—Austin May 19, 2017, pet. denied) (mem. op.) (“private-nuisance claims typically involve

an invasion of the plaintiff’s property by light, sound, odor, or a foreign substance,” and

“aesthetic” nuisance claims are not recognized).

               Appellees accused Amini of creating a nuisance by his repeated emails to

Benaryeh, Hill, and others related to the hospital and NCC and his repeated complaints to the

City, which resulted in multiple investigations. Even assuming that such conduct can rise to the

level of causing a nuisance injury, appellees had the burden of showing clear and specific

evidence that Amini’s conduct interfered with appellees’ use and enjoyment of their property in a


       9
           In asking whether a defendant has caused a nuisance injury, the supreme court has
instructed us to consider 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 which
others in the area are using their land similarly; the “social utility of each property’s usage”; the
likelihood that the defendant’s conduct will interfere with the plaintiff’s use and enjoyment of its
land; “the magnitude, extent, degree, frequency, or duration of the interference and resulting
harm”; “the relative capacity of each party to bear the burden of ceasing or mitigating the usage
of their land”; the timing of the conduct that created the conflict; the defendant’s motive in
causing the interference; and the interests of the community and the public at large. Crosstex N.
Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 600 (Tex. 2016).
                                                 21
substantial and unreasonable way. See Crosstex, 505 S.W.3d at 595, 599. Although Amini’s

conduct might have annoyed and even inconvenienced appellees, when considered under the

applicable objective standard, there is simply no evidence that the effect of Amini’s behavior

was “such as would disturb and annoy persons of ordinary sensibilities, and of ordinary tastes

and habits.” Id. at 596-99 (quoting Sherman Gas & Elec. Co. v. Biden, 123 S.W. 119, 120 (Tex.

1909)). Appellees continued to operate the animal hospital, there was no evidence that the

hospital lost employees or customers, and although Benaryeh averred that he was concerned that

Amini knew where he lived and would harass him at home, he did not provide evidence that

Amini’s emails substantially and unreasonably interfered with Benaryeh’s use and enjoyment of

his home. We hold that appellees did not present a prima facie case that Amini’s conduct rose to

the level of causing a nuisance injury. The trial court thus erred in failing to grant Amini’s

TCPA motion as to appellees’ private nuisance claims.


                         “Affirmative defenses” to Amini’s TCPA motion

               Appellees assert that they can establish two “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.” They argue that because Amini’s motion to dismiss is a plea for affirmative relief, it is

a “pleading” subject to the assertion of an affirmative defense under the rules of civil

procedure, 10 and insist that because the TCPA “does not abrogate or lessen any other defense,



       10
           See Tex. R. Civ. P. 94 (“In pleading to a preceding pleading, a party shall set forth
affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality,
injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute
of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.”).
                                                 22
remedy, immunity, or privilege available under other constitutional, statutory, case, or common

law or rule provisions,” see Tex. Civ. Prac. & Rem. Code § 27.011(a), appellees may assert

affirmative defenses to his motion to dismiss.

               Although appellees’ argument is novel, it is unpersuasive. The TCPA is intended

to encourage and safeguard the exercise of citizens’ constitutional rights, id. § 27.002, and we

are instructed to construe the act “liberally to effectuate its purpose and intent 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 dismissal even if the plaintiff carries its prima-facie-case

burden. See id. § 27.005(d). It does not, however, provide that the plaintiff may assert an

affirmative defense against a defensive TCPA motion. Indeed, it would stymie the TCPA’s

intended purpose if appellees, who did not meet their burden of establishing a prima facie case of

their claims, could claim “affirmative defenses” to bar Amini from seeking TCPA relief.

Further, we disagree that Amini’s so-called “acceptance” of “the benefit” of the sound wall—

appellees’ early attempt to abate the noise problems—somehow barred him from making later

complaints when the noise resumed due to appellees’ activities in an area beyond the reach of the

wall and, moreover, barred him from seeking TCPA remedies when sued for his renewed

complaints. We also disagree with appellees’ circular argument that Amini’s ongoing campaign

of making complaints amounted to “unclean hands” such that he cannot mount a TCPA defense

when sued for that very conduct. If the trial court premised its failure to grant Amini’s TCPA

motion on appellees’ assertion of their “affirmative defenses,” such a decision was erroneous. 11



       11
          Having determined that Amini established that the TCPA applied and that appellees
did not carry their burden of showing a prima facie case of each element of each claim, we need
not consider whether Amini established his own asserted affirmative defenses.
                                                 23
                                              Sanctions

                Finally, we turn to appellees’ motion for sanctions, in which they argue that

Amini made false statements to this Court and the trial court in an attempt to “improperly

exclude evidence vital and material to” appellees’ arguments.

                Amini and appellees filed their briefs in June and August 2018, respectively.

In Amini’s brief, he stated, “Plaintiffs provided Amini with an affidavit from Heyer and a second

affidavit from Benaryeh, but both are absent from Plaintiffs’ filed response in the Clerk’s

Record.” In his reply brief, filed in early September, Amini reiterated his argument that the

“Heyer affidavit is not part of the clerk’s record, and the Court should not consider it.”

On September 12, appellees sent a letter to the trial court clerk asking for a supplemental clerk’s

record containing Heyer’s affidavit and Benaryeh’s declaration and explaining that those

documents were filed in the trial court as exhibits to appellees’ response to Amini’s TCPA

motion but omitted from the clerk’s record. Amini objected to the inclusion of those exhibits in

the appellate record, both in this Court and in the trial court, stating that “the trial court’s records

show Appellees did not file those two exhibits with Appellees’ response to Amini’s motion to

dismiss” and “did not otherwise submit the exhibits to the trial court before it denied Amini’s

motion to dismiss by operation of law.”

                Appellees then filed a motion for sanctions, asserting that Amini’s letters

objecting to the supplementation of the record were demonstrably false, filed in bad faith, and an

attempt to gain an unfair advantage through deceit. They argue that Amini “actually knows” that

the two documents were filed with appellees’ TCPA response but omitted from the clerk’s record

due to clerical error and that Amini was citing to a version of the clerk’s record “he knows to be

faulty and inaccurate” to give us an “incomplete and false version of the trial court record.”

                                                  24
Appellees use words like “egregious,” “opportunistically and dishonestly,” and “subterfuge” to

describe Amini’s conduct related to the omitted documents. Amini has responded, stating that

his objection letters “were accurate” and made in good faith. He notes that although he had

pointed out the documents’ omission from the record in his briefing, appellees did not seek to

have the record supplemented before filing their brief and instead attached a copy of Heyer’s

affidavit in their appendix and cited to that document throughout their brief. 12

               We have reviewed the parties’ filings related to sanctions, the clerk’s records

(both original and supplemental), and the reporter’s record from a hearing on the parties’

motions to dismiss and motion to strike. We note that the record before us demonstrates

significant gamesmanship even by TCPA standards, including by appellees in their filings

related to how the TCPA should be applied, 13 and we refuse to participate in such behavior.

Having considered the issues fully, we deny appellees’ motion for sanctions.


                                         CONCLUSION

               We have held both that Amini carried his burden of showing that the TCPA

applied to all of appellees’ claims and that appellees did not carry their burden of showing a


       12
          It is true that appellees referred to Heyer’s affidavit only through citations to their
appendix, whereas many of their other citations are to documents as included in the clerk’s
record. However, appellees also cited to the 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 affidavit is
not especially noteworthy.
       13
           As we have noted, appellees filed in the trial court a “Motion to Dismiss the
Defendant’s Motion to Dismiss Under the TCPA, Under the TCPA.” In addition, appellees filed
in this Court a motion to dismiss Amini’s appeal under the TCPA, asserting that the appeal was a
legal action related to their exercise of their rights to petition and free speech. We denied that
motion to dismiss the appeal, explaining that the TCPA does not authorize an appellate-level
motion to dismiss. See Amini v. Spicewood Springs Animal Hosp., LLC, 550 S.W.3d 843, 845-
46 (Tex. App.—Austin 2018, no pet.). As the legislature seems to have acknowledged by its
recent changes to the Act, at some point the TCPA circular firing squad has to stop.

                                                 25
prima facie case of at least one essential element of each claim. We therefore reverse the trial

court’s denial of Amini’s motion to dismiss by operation of law and render judgment granting

his motion. Because the issues of attorney’s fees and sanctions under the TCPA remain, we

remand the cause to the trial court for further proceedings consistent with this opinion and the

TCPA. See Tex. Civ. Prac. & Rem. Code § 27.009.



                                            __________________________________________
                                            Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Triana and Smith

Reversed and Remanded

Filed: November 7, 2019




                                              26
