      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO.03-18-00081-CV



                                  Shakeel Mustafa, Appellant

                                                 v.

                                   Tyler Pennington, Appellee


 FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 26TH JUDICIAL DISTRICT
     NO. 17-1060-C26, HONORABLE DONNA GAYLE KING, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellant Shakeel Mustafa sued Tyler Pennington, the amicus attorney appointed to

assist a trial court in resolving a custody dispute between Mustafa and Asim, his ex-wife. Mustafa’s

petition for relief alleges Pennington failed to satisfy his obligations under the Family Code,

allegedly giving rise to claims of defamation, negligence, and breach of contract. Mustafa

subsequently non-suited his defamation and negligence claims, and the district court granted

Pennington’s motion to dismiss the contract claim under the Texas Citizens Participation Act

(TCPA). See Tex. Civ. Prac. & Code §§ 27.001–.011. Mustafa now appeals from the dismissal

order. We will affirm.


                                        BACKGROUND

               Mustafa’s wife filed for divorce in 2007. The merits of the divorce and custody

dispute are not before this Court, but we will summarize the custody proceedings to establish the
context of Mustafa’s claims against Pennington and evaluate the district court’s dismissal of

those claims.


The Underlying Custody Dispute

                In early 2016, Mustafa sued for modification of an order naming Mustafa and Asim

joint managing conservators of the children and granting Asim the exclusive right to designate their

primary residence. Mustafa’s petition sought to maintain the joint managing conservatorship but to

designate Mustafa as the conservator with the exclusive right to designate the children’s primary

residence. Asim filed a counterpetition seeking to dissolve joint conservatorship and have Asim

named the sole managing conservator.

                The suit was brought in a Williamson County court at law, which had acquired

continuing exclusive jurisdiction over the children through a prior custodial challenge brought by

Mustafa.    See Tex. Fam. Code § 155.001 (“[A] court acquires continuing, exclusive

jurisdiction . . . on the rendition of a final order.”). That court appointed Pennington as amicus

attorney to investigate the best interest of the children pursuant to Section 107.005 of the Family

Code. During his initial two-month investigation, Pennington interviewed school officials and a

counselor and observed the children with Mustafa and with Asim. When Mustafa provided

photographs of an apparent injury to the older child’s arm, complaining that the stepfather was

responsible, Pennington recommended the children begin seeing a therapist specializing in

adolescent crisis. After several sessions with the children, the therapist provided Pennington with

an affidavit stating that Mustafa might be pressuring the children—especially the older child—to

come and live with him and that this pressure was resulting in unusual behavior by the older child.

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Based on the therapist’s belief that Mustafa’s unsupervised access to the children might harm the

children’s physical or emotional health and frustrate the judicial process, Pennington obtained an

order limiting Mustafa’s access to the children until the case could be resolved on the merits.

                The custody dispute was tried to jury a month after the enforcement hearing. The jury

heard testimony reflecting Mustafa’s longstanding attempts to pressure the children into leaving their

mother and his repeated efforts to impede the judicial process. The pediatric therapist testified that

Mustafa had tried to record the confidential sessions between the therapist and the children. He

explained his conclusion that Mustafa might have persuaded the children to fabricate allegations of

abuse in hopes of increasing his own access to them. The older child, testifying at trial, admitted that

he had injured his own arm and confirmed that Mustafa had told him not to be honest with the

therapist, but could not remember whether he had ever accused his stepfather of causing the injury.

He also admitted to feeling “uncomfortable” on the witness stand and “nervous” about what Mustafa

might say following his testimony that he wanted to live with his mother and loved his stepfather.

After four days of testimony and two hours of deliberation, the jury unanimously found that Asim

should be appointed sole managing conservator of the children and that the existing joint managing

conservatorship should be dissolved. The court rendered a final order reflecting the jury’s verdict

and designating Asim as sole managing conservator.

                Mustafa filed a motion for new trial, a motion to interview the children, a motion to

set aside orders, a request for findings of fact and conclusions of law, and an “objection to visiting

judge.” The motions were denied by operation of law. He appealed the final order to this Court,

which dismissed the appeal for want of prosecution “after multiple delays and extensions of time.”



                                                   3
See Mustafa v. Asim, No. 03-17-00702-CV, 2018 WL 4190804, at *2–3, (Tex. App.—Austin

Aug. 31, 2018 (pet. filed).


Mustafa’s Suit Against Pennington

                  While the appeal was pending, Mustafa sued Pennington in Williamson County

district court, alleging that Pennington had “egregiously breached his statutory duties promulgated

by §107.003 and §107.005 of the Texas Family Code.” Mustafa then pleaded counts of “breach of

implied-in-fact contract, breach of implied-in-law contract, breach of express contract, defamation,

and negligence.” The petition’s appendix included the motion for temporary orders filed by

Pennington in the underlying custody dispute, the affidavits filed in support of that motion, and

Pennington’s post-trial motion to quash Mustafa’s attempts to depose the pediatric therapist that

testified at trial.

                  Pennington filed a motion to dismiss under Section 27.002 of the Civil Practice and

Remedies Code, which allows a party to move for dismissal “[i]f a legal action is based on, relates

to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of

association . . . .” Mustafa filed a “nonsuit with prejudice of the defamation claim,” which included

a stated intent to “nonsuit[] and abandon[] any claims invoking the Texas Citizens Participation

‘Anti-Slapp’ Act.” He continued to litigate his contract theories and sought discovery on those

claims and on the TCPA motion, see Tex. Civ. Prac. & Rem. Code § 27.006(b), seeking to depose

his older child and Pennington. After a hearing on the motion and the requested discovery, the

district court denied Mustafa’s discovery request and dismissed Mustafa’s remaining claims with

prejudice “pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code,” awarding

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Pennington $14,516.62 in attorney’s fees and expenses. See id. § 27.009(a)(1) (requiring award of

costs, fees, and expenses to successful moving party). The order included conditional awards of fees

and expenses should Pennington prevail on appeal. Mustafa then perfected this appeal.


                                           DISCUSSION

               Mustafa raises two issues on appeal.1 First, he contends the district court erred by

granting the motion to dismiss, arguing that Pennington failed to show the contract claims related

to activity protected under the TCPA and that Mustafa satisfied his burden to make out a prima facie

case of breach. Second, he alleges the district court abused its discretion by denying his motion for

limited discovery under Chapter 27 of the Civil Practice and Remedies Code. Mustafa’s arguments

are not persuasive, and we find no error by the district court.


Dismissal of Mustafa’s Claims

               The Texas Legislature enacted the TCPA “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 and, at the same time, protect the rights of

a person to file meritorious lawsuits for demonstrable injury.” Id. § 27.002. “Section 27.003 allows

a litigant to seek dismissal of a ‘legal action’ that is ‘based on, relates to, or is in response to a




       1
           Mustafa frames his arguments as four points of error, but we construe these, in substance,
as two legal issues. See Gene Hamon Ford, Inc. v. David McDavid Nissan, Inc., 997 S.W.2d 298,
304 n.9 (Tex. App.—Austin 1999, pet. denied) (consolidating points of error for discussion); Niess
v. State, No. 03-11-00213-CR, 2012 WL 2383300, at *1 (Tex. App.—Austin June 21, 2012, no pet.)
(“Though Niess raises these arguments in thirteen separate points of error, for convenience we have
grouped the points of error into four legal issues on appeal.”).

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party’s exercise of the right of free speech, right to petition, or right of association.’” Serafine

v. Blunt, 466 S.W.3d 352, 356–57 (Tex. App.—Austin 2015, no pet.) (quoting Tex. Civ. Prac. &

Rem. Code § 27.003(a)). “The Act imposes the initial burden on the movant to establish by a

preponderance of the evidence ‘that the legal action is based on, relates to, or is in response to the

party’s exercise of . . . the right to petition.’” Id. (quoting Tex. Civ. Prac. & Rem. Code

§ 27.005(b)). “The Act then shifts the burden to the nonmovant, allowing the nonmovant to avoid

dismissal only by ‘establish[ing] by clear and specific evidence a prima facie case for each essential

element of the claim in question.’” Id. (quoting Tex. Civ. Prac. & Rem. Code § 27.005(c)). “The

Act is to ‘be construed liberally to effectuate its purpose and intent fully,’ but it ‘does not

abrogate or lessen any other defense, remedy, immunity, or privilege available under other

constitutional, statutory, case, or common law or rule provisions.’” Id. (quoting Tex. Civ. Prac. &

Rem. Code § 27.011)).


               Protected Activity

               Mustafa first contends the district court erred by granting Pennington’s motion to

dismiss because Mustafa’s claims do not relate to any activity protected by the TCPA. To determine

whether a claim involves protected activity, a court must look to the pleadings and any supporting

or opposing affidavits. Tex. Civ. Prac. & Rem. Code § 27.006; Hersh v. Tatum, 526 S.W.3d 462,

467 (Tex. 2017). Because Mustafa only challenges the district court’s disposition of his contract

claims, we limit our discussion to those claims. See Tex. R. App. P. 38.1, 47.1.

               Mustafa’s claims of breach are related to Pennington’s right to petition the courts.

That right is defined, as relevant here, as “a communication in or pertaining to . . . a judicial

                                                  6
proceeding.” Tex. Civ. Prac. & Rem. Code § 27.001(4)(A)(i). In support of the claims, Mustafa

alleged that Pennington “failed to conduct an investigation to the extent necessary to determine the

best interests of the child,” “failed to review copies of the child’s records,” “failed to, within a

reasonable time after the appointment [as amicus], interview each person who has significant

knowledge of the child’s history,” and “failed to encourage settlement.” Mustafa contends that

because these allegations involve an ostensible failure to communicate rather than a statement

actually made, his claims cannot, as a matter of law, relate to a “communication” for the purpose of

the TCPA. The record reveals that Pennington interviewed each parent and stepparent, school

officials, two licensed counselors, and both children, and that he reviewed the children’s academic

and medical records. He then conveyed his conclusions to the court in a series of filings and oral

statements. Thus, Mustafa’s allegation of a “failure to communicate” is in substance a criticism of

Pennington’s communication during the pre-trial proceedings, the trial itself, and the post-trial

hearings.2 Those communications relate to a judicial proceeding, and Pennington was therefore

exercising his right to petition the court. See id. Because “it is clear from the plaintiff’s pleadings

that the action is covered by the Act,” Hersh, 526 S.W.3d at 467, Pennington satisfied his initial

burden to show Mustafa’s claims related to protected activity.




       2
         See Tex. Civ. Prac. & Rem. Code § 27.001(1) (defining “communication” as “the making
or submitting of a statement or document in any form or medium . . .”). We need not decide today
whether an alleged failure to communicate will never constitute a “communication” for the purposes
of the TCPA.

                                                  7
               Prima Facie Case

               Because Pennington satisfied his burden, Mustafa could only avoid dismissal by

establishing, through clear and specific evidence, a prima facie case on each element of his claim.

See Tex. Civ. Prac. & Rem. Code § 27.005(c). The elements of breach of contract are: (1) the

existence of a contract between the parties, (2) performance or tendered performance by the plaintiff,

(3) a breach of the contract by the defendant, and (4) damages caused by the breach. See USAA Tex.

Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018); Plotkin v. Joekel, 304 S.W.3d 455,

476–77 (Tex. App.—Houston [1st Dist.] 2009, pet. denied) (“‘The elements of a contract, express

or implied, are identical.’” (quoting University Nat’l Bank v. Ernst & Whinney, 773 S.W.2d 707, 710

(Tex. App.—San Antonio 1989, no writ))).

               Mustafa cannot satisfy his burden with respect to the first element of his claims of

breach of an express or implied-in-fact contract. Although there is no representation agreement

between Mustafa and Pennington, Mustafa argues that an express or implied contract exists in the

court’s appointment of Pennington as amicus attorney and its order that Mustafa compensate

Pennington for his services. Mustafa, however, has not cited any authority supporting his position

that an amicus attorney owes contractual duties to a parent based on the attorney’s statutory

obligations under the Family Code or a court order requiring a parent to pay the attorney’s fees. To

the contrary, an amicus attorney is “an attorney appointed by the court . . . to assist the court in

protecting a child’s best interest rather than to provide legal services to the child.” See Tex. Fam.

Code § 107.001(1), Thus, the court’s orders are not evidence that Pennington agreed to represent




                                                  8
Mustafa or his children. Id.; see also id. § 107.005; Zeifman v. Nowlin, 322 S.W.3d 804, 808–09

(Tex. App.—Austin 2010, no pet.).

                Nor has Mustafa produced any evidence that might satisfy his burden with respect

to his claim of breach of a contract implied at law. These claims, also known as “quasi-contract”

claims, are rooted in an obligation owed to the plaintiff that reason and justice require the courts to

enforce. See Joekel, 304 S.W.3d at 476–77. Yet an “amicus attorney is appointed to assist the court,

not to represent the child or either of the parents,” and “it is the trial court, not the parties, to whom

the amicus attorney is responsible for the limited purposes delineated in the statute.” Zeifman,

322 S.W.3d at 808. (citing O’Connor v. O’Connor, 245 S.W.3d 511, 515 (Tex. App.—Houston

[1st Dist.] 2007, no pet.)). Because Pennington’s obligations in the custody proceedings were owed

to the county court at law and not to Mustafa, he cannot make out a prima facie case of breach of

implied-at-law contract and therefore cannot satisfy his burden to avoid dismissal. See Tex. Civ.

Prac. & Rem. Code § 27.005(c). We therefore need not consider the merits of any affirmative

defenses Pennington pleaded below and overrule Mustafa’s first issue on appeal.


Discovery

                Mustafa contends the district court should have granted his motion for discovery

under Section 27.006 of the Texas Civil Practice & Remedies Code, which allows the court to permit

limited discovery on a showing of good cause when a TCPA motion to dismiss is pending. We

review discovery orders for an abuse of discretion. In re Elliott, 504 S.W.3d 455, 459 (Tex.

App.—Austin 2016, orig. proceeding). Here, even assuming the district court abused its discretion

by denying Mustafa’s motion for discovery, that abuse would not have affected the final judgment

                                                    9
dismissing all claims with prejudice because Mustafa has no viable claims against Pennington. We

therefore need not address Mustafa’s challenge to the discovery ruling. See Tex. R. App. P. 44.1(a)

(allowing reversal only where error “probably caused the rendition of an improper judgment” or

“probably prevented the appellant from properly presenting the case to the court of appeals”), 47.1

(requiring courts of appeals to render decisions “as brief as practicable”); Landry’s, Inc. v. Animal

Legal Def. Fund, 566 S.W.3d 41, 68 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (holding the

TCPA “does not authorize the trial court to permit discovery” if plaintiff cannot make out prima

facie case for each essential element of claim). We overrule Mustafa’s second issue.


                                           CONCLUSION

                  Having overruled appellant’s two points of error, we affirm the judgment of the

district court.



                                                       ____________________________________
                                                       Edward Smith, Justice

Before Justices Goodwin, Baker, and Smith
 Concurring Opinion by Justice Goodwin

Affirmed

Filed: April 24, 2019




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