       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-19-00234-CV


                               Dr. Damon C. O’Gan, Appellant

                                                v.

                                      Scott Ogle, Appellee


              FROM COUNTY COURT AT LAW NO. 1 OF TRAVIS COUNTY
     NO. C-1-CV-18-010445, THE HONORABLE ERIC SHEPPERD, JUDGE PRESIDING



                           MEMORANDUM OPINION


               Scott Ogle, pro se, sued Dr. Damon C. O’Gan for theft of his cell phone under the

Texas Theft Liability Act (TTLA). See Tex. Civ. Prac. & Rem. Code § 134.002 (providing civil

cause of action for theft). O’Gan filed a Texas Citizens Participation Act (TCPA) motion to

dismiss Ogle’s claims, asserting that the lawsuit was baseless and brought in response to a

motion to quash that O’Gan filed in a separate suit Ogle brought seeking to depose various

people to investigate an alleged slander claim. See id. § 27.003.1 The trial court granted O’Gan’s

motion in part as to Ogle’s claims for intentional infliction of emotional distress and unjust



       1
          All citations in this opinion to the TCPA are to the version in effect before the
September 2019 amendments became effective. See Act of May 21, 2011, 82d Leg., R.S.,
ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961–64 (current version at Tex. Civ. Prac. & Rem. Code
§§ 27.001–.011), amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–3, 5, 2013
Tex. Gen. Laws 2499, 2499–500 (the version at issue in this opinion); see also Act of May 17,
2019, 86th Leg., R.S., ch. 378, §§ 1–12, 2019 Tex. Gen. Laws 684, 687 (amending TCPA and
providing that suit filed before amendments become effective “is governed by the law in effect
immediately before that date”).
enrichment but denied it as to the TTLA claim and did not award O’Gan any attorney’s fees or

costs. We reverse the portion of the trial court’s order denying O’Gan’s request for attorney’s

fees and costs incurred in defending against the dismissed claims and remand for a determination

of fees and costs under section 27.009. See id. § 27.009. We affirm the remainder of the trial

court’s order.


                                          BACKGROUND

                 Ogle alleged in his petition that he has had two cell phones stolen at or near

his law office in the two years before his suit. He claimed that the “exact location” of his first

stolen phone, as identified through an app called “LookOut,” is currently in the Kyle Police

Department, “near the back of the building.” He alleged that an officer with the department “has

confirmed that Ogle’s cellphone is not in the building” but that the officer “won’t swear to it

because ‘Ogle is not a judge.’”

                 Regarding his second stolen phone, Ogle alleged that


       Plaintiff noticed his cell phone not in his vehicle as he left his office. After
       circling the block back to his law office, Ogle entered his office again, and
       searched for his cell phone, again using his “LookOut” App. This time, Plaintiff’s
       cell phone was located at “The Nines Grooming Center” . . . three houses down
       from Plaintiff’s law office[.]

       Plaintiff walked to the barber shop, and saw Defendant walking briskly to his
       vehicle located in the rear of the building. Defendant ignored Plaintiff’s “hellos”,
       “howdy”, and “where is my cellphone?” comments made during Defendant’s
       haste to enter his vehicle. Ogle returned to his office, and the LookOut location
       of his cellphone had relocated to the exact location of Defendant’s vehicle which
       was the only vehicle in the parking lot. Plaintiff then stood in the parking lot as
       Defendant was attempting to flee, and recorded O[’G]an’s license plate number.


                 Ogle filed an affidavit with the trial court to support his claims. In addition to the

above assertions, Ogle averred that he

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


               Ogle sued O’Gan for violation of the TTLA, intentional infliction of emotional

distress, and unjust enrichment. He sought attorney’s fees and exemplary damages under the

TTLA. See id. § 134.005 (allowing for person who has sustained damages resulting from theft to

recover attorney’s fees, court costs, and up to $1000 in additional statutory damages).

               In his TCPA motion to dismiss, O’Gan asserted that Ogle “initially sought to

depose . . . O’Gan in a Guadalupe County lawsuit” and that “[w]hen . . . O’Gan moved to quash

the deposition, [Ogle] responded by filing this lawsuit” within 48 hours. O’Gan contended that

Ogle’s petition in the Guadalupe County lawsuit “does not name any defendants, but identifies

persons that [Ogle] wants to depose in order to investigate what [Ogle] claims to be a slander

claim against a member of a ‘fake church’ involved in ‘nefarious activities.’” O’Gan attached to

his motion a certified copy of Ogle’s petition in the Guadalupe County lawsuit and an email that

Ogle sent to O’Gan’s counsel just after O’Gan filed his motion to quash. In the email, Ogle

stated, “I am willing to reduce the number of objections you seem to have [to the subpoena for

deposition in the Guadalupe County lawsuit] by simply filing suit against O’Gan in Small Claims

Court here in Travis County.” The day after Ogle sent the email, he filed the present lawsuit.

               O’Gan attached to his motion his affidavit, in which he averred that he went to a

barber shop called “The Nines” in April 2017 and that during his haircut an unknown man

entered the lobby of the shop insisting that his cell phone was there. After the man left, the

owner locked the shop’s door. After O’Gan exited the shop and began approaching his car, the



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unknown man began yelling at him to get his attention, but O’Gan “did not engage” him because

the man was being “aggressive and loud.” Instead, O’Gan “entered [his] car to leave” and had to

wait “20-30 seconds until [the man] stepped out” from in front of his car so that he could leave.

                O’Gan averred that he received a call from a detective with the Austin Police

Department a few days after the incident, who told him that “he assumed” Ogle’s claim that

O’Gan stole his phone was “bogus” but that he “needed to call to hear [O’Gan’s] side of the

story” and that “he had had previous dealings with Mr. Ogle and did not believe [he] was

credible.” Over the next few weeks, Ogle “called [O’Gan’s] office numerous times speaking

rudely to [his] office manager,” claiming that O’Gan had stolen his cell phone. About a year and

a half after the barber shop incident, O’Gan was served with the subpoena for deposition in

Ogle’s Guadalupe County lawsuit, and about a month later he was served with a copy of the

petition in the present suit.


                                           DISCUSSION

                On appeal O’Gan complains that the trial court erred in not dismissing Ogle’s

entire suit and in failing to award him attorney’s fees, costs, and sanctions under the TCPA. He

contends that Ogle failed to establish a prima facie case for the TTLA claim.


TCPA dismissal procedure

                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 demonstrable injury. Id. § 27.002. To that end, the act permits a party to file a motion to

dismiss a “legal action” against him if it is based on, relates to, or is in response to his exercise of

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his right of free speech, right to petition, or right of association. See id. § 27.003(a). Courts

review TCPA motions using a three-step analysis. Youngkin v. Hines, 546 S.W.3d 675, 679

(Tex. 2018). First, the party moving for dismissal must show by a preponderance of the evidence

that the TCPA applies to the legal action against it. Tex. Civ. Prac. & Rem. Code § 27.005(b).

If the movant meets that burden, the nonmovant must establish by clear and specific evidence a

prima facie case for each essential element of its claim. Id. § 27.005(c).

               “The words ‘clear’ and ‘specific’ in the context of this statute have been

interpreted respectively to mean, for the former, ‘unambiguous,’ ‘sure,’ or ‘free from doubt’

and, or the latter, ‘explicit’ or ‘relating to a particular named thing.’” Hawxhurst v. Austin’s

Boat Tours, 550 S.W.3d 220, 230 (Tex. App.—Austin 2018, no pet.) (quoting In re Lipsky,

460 S.W.3d 579, 590 (Tex. 2015) (orig. proceeding)). A prima facie case is “the ‘minimum

quantum of evidence necessary to support a rational inference that the allegation of fact is true.’”

Lipsky, 460 S.W.3d at 590 (quoting In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223

(Tex. 2004) (orig. proceeding) (per curiam)).          Collectively, these elements require that the

“plaintiff must provide enough detail to show the factual basis for its claim.”          Bedford v.

Spassoff, 520 S.W.3d 901, 904 (Tex. 2017) (per curiam).             If the nonmovant satisfies that

requirement, the burden shifts back to the movant to prove each essential element of any valid

defenses by a preponderance of the evidence. Tex. Civ. Prac. & Rem. Code § 27.005(d). “In

determining whether a legal action should be dismissed under [the TCPA], the court shall

consider the pleadings and supporting and opposing affidavits stating the facts on which the

liability or defense is based.” Id. § 27.006(a).

               In this appeal, Ogle does not dispute that O’Gan established by “a preponderance

of the evidence” that his TTLA claim falls under the TCPA—i.e., that it is a “legal action” that is

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based on, related to, or in response to at least one of the protected categories of expressive

activity defined by the act. Instead, Ogle maintains that the trial court properly denied in part

O’Gan’s motion because he met his burden under section 27.005(c) of establishing by clear and

specific evidence a prima facie case for each essential element of the challenged claims. We

review de novo whether Ogle carried his burden.2 See Long Canyon Phase II & III Homeowners

Ass’n, Inc. v. Cashion, 517 S.W.3d 212, 218 (Tex. App.—Austin 2017, no pet.).


Theft

                 The TTLA defines “theft” as “unlawfully appropriating property or unlawfully

obtaining services as described by [various sections of the] Penal Code.” Tex. Civ. Prac. &

Rem. Code § 134.002(2). As applicable here, the elements of a cause of action for civil theft are:

(1) the plaintiff had a possessory right to the property; (2) the defendant appropriated the

property (3) without the owner’s effective consent; and (4) the plaintiff sustained damages as a

result. See Tex. Penal Code § 31.03; Tex. Civ. Prac. & Rem. Code § 134.002. O’Gan contends

that Ogle has failed to establish a prima facie case as to elements two and four.

                 Ogle relies on pleaded facts and circumstantial evidence to establish his prima

facie case, which is permitted under the TCPA provided the evidence is clear and specific and

would be sufficient as a matter of law to establish a given fact if not rebutted or contradicted.

See Lipsky, 460 S.W.3d at 590. Circumstantial evidence is “indirect evidence that creates an

inference to establish a central fact,” id., and it may be used to establish any material fact, as long

as the material fact can be reasonably inferred from the known circumstances and transcends

mere suspicion, see Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001).


        2
            O’Gan did not assert any defenses to the TTLA claim in his TCPA motion.
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                The relevant direct and circumstantial evidence in Ogle’s petition and affidavit

distills to the following:


        •   Ogle’s “LookOut app” initially indicated that his missing cell phone was in the barber
            shop.

        •   Ogle then saw O’Gan walking briskly from the barber shop to his vehicle
            parked in the barber shop’s parking lot.

        •   O’Gan’s vehicle was the only vehicle in the lot at the time.

        •   O’Gan ignored Ogle’s attempts to engage him in conversation.

        •   After he was rebuffed by O’Gan, Ogle again checked for his phone’s location
            on the “LookOut app,” which indicated that the phone was in the “exact
            location” of O’Gan’s vehicle.

        •   O’Gan drove away.


This evidence meets the “clear and specific” standard because it is unambiguous and explicit.

See Hawxhurst, 550 S.W.3d at 230. While minimal, it nonetheless amounts to a sufficient

quantum from which a factfinder could make the reasonable inferences that O’Gan appropriated

Ogle’s cell phone (element two of a theft claim) and that Ogle suffered damages as a result

(element four of a theft claim). Ogle alleged enough detail to show the factual bases of the

challenged elements of his theft claim—that O’Gan removed Ogle’s cell phone from the barber

shop, took it to his car, and drove away with it. Cf. Lipsky, 460 S.W.3d at 590–91 (noting that

in defamation case, evidence establishing “the facts of who, where, and what was said, the

defamatory nature of the statements, and how they damaged the plaintiff should be sufficient to

resist” TCPA motion).




                                                 7
               We conclude that Ogle met his burden to establish a prima facie case for theft

under the TTLA. Accordingly, we overrule O’Gan’s first issue and hold that the trial court

properly denied his TCPA motion to dismiss as to the TTLA claim.


Attorney’s fees

               In his second issue, O’Gan correctly contends that, even if the trial court properly

denied his motion as to the TTLA claim, it erred in failing to award him attorney’s fees and costs

for the claims that it dismissed. See Tex. Civ. Prac. & Rem. Code § 27.009 (“If the court orders

dismissal of a legal action under this chapter, the court shall award to the moving party . . . court

costs, reasonable attorney’s fees, and other expenses incurred in defending against the legal

action[.]”); D Magazine Partners, L.P. v. Rosenthal, 529 S.W.3d 429, 442 (Tex. 2017) (holding

that trial court must award reasonable attorney’s fees for each claim that trial court dismissed,

even if it did not dismiss all claims); Serafine v. Blunt, No. 03-16-00131-CV, 2017 WL 2224528,

at *7 (Tex. App.—Austin May 19, 2017, pet. denied) (mem. op.) (same). Accordingly, we sustain

O’Gan’s second issue.


                                         CONCLUSION

               We reverse the portion of the trial court’s order denying O’Gan’s request for

attorney’s fees and costs incurred in defending against Ogle’s claims of intentional infliction of

emotional distress and unjust enrichment and remand this cause for a determination of fees and

costs to which O’Gan is entitled under section 27.009 of the TCPA. See Tex. Civ. Prac. & Rem.

Code § 27.009. We affirm the remainder of the trial court’s order.




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                                            __________________________________________
                                            Thomas J. Baker, Justice

Before Justices Goodwin, Baker, and Kelly

Affirmed in Part; Reversed and Remanded in Part

Filed: January 15, 2020




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