REVERSE and REMAND, and Opinion Filed December 4, 2024
In The Court of Appeals Fifth District of Texas at Dallas No. 05-24-00053-CV
ZANE M. RAPHAEL, Appellant V. CAMDEN DEVELOPMENT, INC., Appellee
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-23-01385
MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Molberg Zane Raphael appeals from the denial by operation of law of his motion to
dismiss under the Texas Citizens Participation Act. He contends he established that
appellee Camden Development, Inc.’s counterclaims for breach of contract and
tortious interference are based on or in response to his exercise of the right to
petition, and that Camden failed to establish by clear and specific evidence a prima
facie case for each essential element of the two claims. Because we conclude the
trial court erred in failing to dismiss the breach of contract counterclaim, we reverse
and remand in this memorandum opinion. See TEX. R. APP. P. 47.4. Background
Raphael alleged in his original petition that he was a resident at a Camden-
owned apartment complex, beginning July 1, 2022. Three weeks after moving in,
his truck was stolen from the residential parking lot, and he reported the theft to
Camden and the Dallas Police Department. Raphael informed Camden it did not
have adequate security, cameras “or any other reasonable measures to prevent
similar incidents as well as protect its residents and their property,” but he alleged,
Camden failed to take reasonable responsive measures. He alleged that, from
August through November 2022, garage break-ins, theft, and property damage
became routine, and Raphael’s garage was broken into at least three times, resulting
in the loss of thousands of dollars of property. Raphael reported each incident to
Camden, which told him to take protective measures, such as locking his garage
door. Despite Raphael taking every reasonable measure he could to protect his
property, he alleged that Camden’s negligence and failure to abide by its obligations
subjected him to repeated break-ins. Based upon these allegations, Raphael asserted
claims for negligence, DTPA violations, breach of contract, common law
fraud/fraudulent inducement, and negligent misrepresentation.
Camden answered and raised several affirmative defenses, including waiver
and release. On September 21, 2023, Camden also filed counterclaims, asserting
that Raphael’s claims were “all expressly covered under the lease,” and it had to
–2– incur attorney’s fees defending against the claims. Camden alleged the parties
agreed in Raphael’s lease that Camden (1) “is not liable to Plaintiff for any injury,
damage, or loss caused as a result of any problem with the performance of any
security-related mechanism”; (2) “did not make any representation or warranty that
any security-related mechanism would not be compromised, circumvented, or
malfunction, or would prevent loss by burglary, theft, or other criminal conduct”;
and (3) “is not responsible for Plaintiff’s personal property (including any vehicles)
resulting from criminal acts of others.” Camden alleged Raphael further agreed in
the lease to maintain renter’s insurance to protect his property and to waive any
insurance subrogation rights or claims against Camden related to losses to his
property. Camden also alleged Raphael encouraged other tenants to take legal action
against Camden that would be a breach of these other tenants’ contracts.
Camden asserted a claim for breach of contract, because, it argued, “as a result
of filing of Plaintiff’s Original Petition, Plaintiff has breached and defaulted on the
contractual lease agreement by seeking damages from defendant for losses covered
by plaintiff’s renter’s insurance, in direct breach of plaintiff’s contractual
agreement.” Camden alleged the breach resulted in damages “in the form of
attorney’s fees and court costs and expenses, as well as loss of the benefits of the
contract(s),” totaling at least $49,000. Based upon its allegation that Raphael
solicited other tenants to take legal action against it, Camden asserted a claim for
–3– tortious interference with contractual relations. Camden sought attorney’s fees
under Chapter 38.001 of the civil practice and remedies code and the “default
provision” of the lease.
A few days after filing its original counterclaims, Camden filed a first
amended counterclaim in which it dropped its tortious interference with contractual
relations cause of action.
On November 6, 2023, Raphael filed a motion to dismiss pursuant to the
TCPA. Raphael contended Camden’s counterclaim was based on or brought in
response to his right to petition because, he argued, it was based on and brought in
response to his original petition. Raphael further argued Camden could not establish
a prima facie case for breach of contract because there was no evidence Camden
performed its contractual obligations, Raphael breached his obligations, or Camden
suffered any damages due to the breach. Regarding this latter point, Raphael
contended attorney’s fees are not recoverable as actual damages, and Camden had
therefore failed to even allege it suffered damages resulting from any breach.
On November 30, 2023, Camden filed a second amended counterclaim and a
response to Raphael’s TCPA motion to dismiss. The second amended counterclaim
differed from its predecessor by including a statement that damages resulting from
Raphael’s breach included “loss of employee manhours related to the naturally
flowing consequences of Plaintiff’s breach,” or alternatively, nominal damages. In
–4– its response to the motion to dismiss, it argued the TCPA did not apply to its breach
of contract claim because the parties “specifically contracted that plaintiff waived
claims against defendant for plaintiff’s personal property.” Camden also argued it
presented evidence establishing a prima facie case for each essential element of
breach of contract.
On December 4, 2023, Raphael filed a reply to Camden’s response to his
motion to dismiss, arguing, among other things, that Camden “has not even
attempted to establish a prima facie case for its tortious interference claim” and had
failed to establish a prima facie case for its breach of contract claim.
After a hearing on the TCPA motion, the trial court did not rule on the motion
within thirty days following the hearing, so it was denied by operation of law.
See TEX. CIV. PRAC. & REM. CODE §§ 27.005(a), 27.008(a). This interlocutory
appeal followed.
Discussion
“The [TCPA] protects citizens who petition or speak on matters of public
concern from retaliatory lawsuits that seek to intimidate or silence them.” In re
Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding) (citing TEX. CIV. PRAC.
& REM. CODE § 27.001–.011) (footnote omitted). Its purpose “is 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
–5– law and, at the same time, protect the rights of a person to file meritorious lawsuits
for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002.
Under the TCPA, a party may file a motion to dismiss a legal action “based
on” or “in response to a party’s exercise of the right to free speech, right to petition,
or right of association[.]” Id. § 27.003(a). A three-step decisional process follows.
First, the trial court must dismiss the legal action “if the moving party demonstrates
that the legal action is based on or is in response to: (1) the party’s exercise of: (A)
the right of free speech; (B) the right to petition; or (C) the right of association; or
(2) the act of a party described by Section 27.010(b).” Id. § 27.005(c).
Second, the court “may not dismiss a legal action under this section if the
party bringing the legal action establishes by clear and specific evidence a prima
facie case for each essential element of the claim in question.” Id. § 27.005(c). This
prima facie standard requires the nonmovant to bring forth “only the minimum
quantum of evidence necessary to support a rational inference that the allegation of
fact is true.” In re E.I. DuPont de Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)
(orig. proceeding) (internal quotation marks omitted). Prima facie evidence is
evidence that will suffice as proof of a fact in issue; “[i]n other words, a prima facie
case is one that will entitle a party to recover if no evidence to the contrary is offered
by the opposite party.” Serafine v. Blunt, 466 S.W.3d 352, 358 (Tex. App.—Austin
2015, no pet.). “Clear and specific” evidence is unambiguous, free from doubt, and
–6– explicit; “the term ‘clear and specific’ pertains to the quality of evidence required to
establish a prima facie case,” while “the term ‘prima facie case’ pertains to the
amount of evidence necessary for a plaintiff to carry its minimal factual burden to
support a rational inference establishing each essential element of a claim.” See
Marble Ridge Cap. LP v. Neiman Marcus Grp., Inc., 611 S.W.3d 113, 122 (Tex.
App.—Dallas 2020, pet. dism’d).
Finally, the court must dismiss the legal action if the movant “establishes an
affirmative defense or other grounds on which the moving party is entitled to
judgment as a matter of law.” TEX. CIV. PRAC. & REM. CODE § 27.005(d).
“Legal action” under the TCPA “means a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal, declaratory, or equitable relief.” Id. § 27.001(6). “Exercise of the
right to petition” means, among other things, a communication in or pertaining to a
judicial proceeding. Id. § 27.001(4). “‘Communication’ includes the making or
submitting of a statement or document in any form or medium, including oral, visual,
written, audiovisual, or electronic.” Id. § 27.001(1). Judicial proceeding means an
actual, pending judicial proceeding. Levatino v. Apple Tree Cafe Touring, Inc., 486
S.W.3d 724, 728 (Tex. App.—Dallas 2016, pet. denied). A communication
“pertaining to” a judicial proceeding does not include anticipated or potential future
judicial proceedings. Id. “To trigger the TCPA’s protection, the ‘legal action’ must
–7– be factually predicated on the alleged conduct that falls within the scope of the
TCPA’s definition of the exercise of the right to petition.” Sorkin v. P.T. Atlas Mfg.,
L.L.C., No. 05-21-00657-CV, 2022 WL 780444, at *3 (Tex. App.—Dallas Mar. 15,
2022, pet. denied) (mem. op.). Exercise of the right of free speech means “a
communication made in connection with a matter of public concern.” TEX. CIV.
PRAC. & REM. CODE § 27.001(3). Matters of public concern include statements or
activities regarding “a matter of political, social, or other interest to the
community[,]” or “a subject of concern to the public.” Id. § 27.001(7). But “[a]
private communication made in connection with a business dispute is not a matter
of public concern under the TCPA.” Erdner v. Highland Park Emergency Ctr., LLC,
580 S.W.3d 269, 276 (Tex. App.—Dallas 2019, pet. denied).
When the text of the TCPA dictates the outcome of a case, we review the trial
court’s ruling de novo. Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591
S.W.3d 127, 132 (Tex. 2019). In our review, we consider “the pleadings, evidence
a court could consider under Rule 166a, Texas Rules of Civil Procedure, and
supporting and opposing affidavits stating the facts on which the liability or defense
is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a); Dyer v. Medoc Health Servs.,
LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied).
In construing the TCPA, we must determine and give effect to the
Legislature’s intent. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25
–8– (Tex. 2003). The best guide to what lawmakers intended is the enacted language of
a statute, “which necessarily includes any enacted statements of policy or purpose.”
Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). Moreover, we determine
legislative intent from considering an act as a whole rather than its parts in isolation.
City of San Antonio, 111 S.W.3d at 25. We construe the statute’s words “according
to their plain and common meaning, unless a contrary intention is apparent from the
context, or unless such a construction leads to absurd results.” City of Rockwall v.
Hughes, 246 S.W.3d 621, 625–26 (Tex. 2008) (citations omitted). We “may not
judicially amend a statute by adding words that are not contained in the language of
the statute.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 508 (Tex. 2015).
Tortious interference claim
At the outset, we address the parties’ disagreement as to whether Raphael
sought to dismiss under the TCPA Camden’s nonsuited tortious interference claim.
As described above, Raphael only raised Camden’s breach of contract counterclaim
in his motion to dismiss and did not address the tortious interference claim until he
filed a reply to Camden’s response to his motion to dismiss. Accordingly, we
conclude Raphael’s complaints relating to the tortious interference claim are not
properly before us. See TEX. R. APP. P. 33.1(a)(1). Even supposing Raphael’s reply
to Camden’s response could be construed as an additional TCPA motion to dismiss,
it was not timely as a motion to dismiss given that it was filed later than the sixtieth
–9– day after the date of service of the original counterclaims. See TEX. CIV. PRAC.
& REM. CODE § 27.003(b) (“A motion to dismiss a legal action under this section
must be filed not later than the 60th day after the date of service of the legal action.”).
We overrule Raphael’s issues as to the tortious interference claim.
Breach of contract claim
We now turn to Camden’s sole remaining cause of action, breach of contract.
Raphael argued in the trial court, and now on appeal, that this claim is based on or
in response to his exercise of the right to petition because it is based on the filing of
his original petition against Camden. We agree. As described above, Camden
alleged Raphael breached the contract “as a result of filing of [his] Original Petition”
because the contract, it argued, precluded such a suit.
We conclude Raphael has demonstrated that the counterclaim—a legal
action—is based on Raphael’s exercise of the right to petition—his filing a petition.
See TEX. CIV. PRAC. & REM. CODE § 27.001(6) (legal action includes a
counterclaim), § 27.001(1), (4) (exercise of right to petition includes making or
submitting a statement or document in a judicial proceeding); LaCore Enters., LLC
v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, at *6 (Tex. App.—Dallas Mar.
23, 2023, no pet.) (mem. op.) (petition is communication in judicial proceeding); see
also Johnson v. Windsong Ranch Cmty., Ass’n, Inc., No. 02-23-00385-CV, 2024 WL
725523, at *3 (Tex. App.—Fort Worth Feb. 22, 2024, no pet.) (mem. op.)
–10– (concluding breach of contract counterclaim was based on or in response to movant’s
exercise of right to petition when counterclaiming party alleged movant triggered
contract’s indemnification provision and breached the contract by filing suit).
Despite this, Camden argues the TCPA cannot apply to its breach of contract
claim because Raphael waived his right to file such a suit in the contract. It points
in particular to section 9(d) of the contract:
Protection of Resident’s Property. Owner is not responsible for, and will not provide fire or casualty insurance for, the personal property (including any vehicles) of Resident or Occupants of the Unit. Neither Owner nor Owner’s managing agent shall be liable to Resident, other Occupants of the Unit or their respective guests for any damage, injury or loss to person or property (furniture, jewelry, clothing, etc.) from fire, flood, water leaks, rain, hail, ice, snow, smoke, lightning, wind, explosions, interruption of utilities, the criminal acts of others or other occurrences unless such damage, injury or loss is caused exclusively by the negligence of Owner. Owner has no duty to remove ice, sleet, or snow from any areas within the Community. Resident assumes all risks with respect to, and Resident is required to secure insurance in accordance with subparagraph (a) above. Unless prohibited by law, Resident waives any insurance subrogation rights or claims against Owner, Owner’s managing agent or their respective insurers.
Even supposing a party may contractually limit its TCPA rights, see Judwin
Props. Inc. v. Lewis, 615 S.W.3d 338, 347 (Tex. App.—Houston [14th Dist.] 2020,
no pet.) (concluding counterclaim alleging plaintiff breached contract by filing suit
was not factually predicated on plaintiff’s exercise of right to petition when plaintiff
agreed in contract to submit any disputes to mediation before commencing litigation
and thus “contractually restricted its normally unrestricted constitutional right to
–11– petition”), we cannot agree that through this language Raphael contractually limited
his right to petition. While the lease agreement states Camden is not responsible or
liable for certain losses, we find no language in the agreement limiting Raphael’s
right to commence litigation as in Judwin or similar cases. See Howard v.
Matterhorn Energy, LLC, 628 S.W.3d 319, 331 (Tex. App.—Texarkana 2021, no
pet.) (concluding TCPA did not apply to breach of contract counterclaim alleging
plaintiffs’ filing of suit breached contract when plaintiffs agreed in lease not to
commence litigation until expiration of sixty days following notice of claim and thus
contractually restricted their right to petition); Lona Hills Ranch, LLC v. Creative
Oil & Gas Operating, LLC, 549 S.W.3d 839, 848 (Tex. App.—Austin 2018), rev’d
in part on other grounds, 591 S.W.3d 127 (same). Thus, we reject Camden’s
contention that the TCPA cannot apply to its breach of contract counterclaim.
Camden also seems to argue that because its claim was a compulsory
counterclaim, see TEX. R. CIV. P. 97(a), the TCPA cannot apply. The terms of the
TCPA itself make this claim untenable, as § 27.009(c) contemplates “dismissal of a
compulsory counterclaim” under the TCPA. See TEX. CIV. PRAC. & REM. CODE
§ 27.009(c) (permitting but not mandating award of reasonable attorney’s fees to
movant if court finds that the compulsory counterclaim is frivolous or solely
intended for delay).
–12– We next must consider whether Camden established by clear and specific
evidence a prima facie case for each essential element of its breach of contract claim.
The essential elements of this claim are that (1) a valid contract exists, (2) Camden
performed or tendered performance, (3) Raphael breached the terms of the contract,
and (4) Camden sustained damages as a result of the breach. See USAA Tex. Lloyds
Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018).
We will consider whether Camden established by clear and specific evidence
a prima facie case that it sustained damages as a result of any breach. See AKOE,
LLC v. RJ Mach. Inc., No. 03-19-00491-CV, 2020 WL 5099960, at *5 (Tex. App.—
Austin Aug. 26, 2020, no pet.) (mem. op.) (“TCPA requires at this stage ‘clear and
specific evidence’ of a ‘prima facie case’ as to every essential element of each and
every claim, including damages”). In making this determination, we may consider,
as stated above, the pleadings,1 evidence a court could consider under rule 166a,
Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the
facts on which the liability or defense is based. See TEX. CIV. PRAC. & REM. CODE
§ 27.006(a).
Camden offered no affidavits to establish a prima facie case—or any other
evidence a court could consider under rule 166a—so we are limited to considering
1 In our review, we will consider the second amended original counterclaim. See Windsong Ranch Cmty., 2024 WL 725523, at *1 n.3 (stating that amended counterclaim filed before hearing on TCPA motion was live pleading for purposes of TCPA analysis). –13– its pleadings. See Breakaway Practice, LLC v. Lowther, No. 05-18-00229-CV, 2018
WL 6695544, at *2 (Tex. App.—Dallas Dec. 20, 2018, pet. denied) (mem. op.)
(“Under [§ 27.006(a)], pleadings are to be considered as evidence, regardless of
whether they are offered as such.”). Camden alleged it sustained damages in the
form of attorney’s fees, court costs, expenses, “loss of the benefits of the
contract(s),” “loss of employee manhours related to the naturally flowing
consequences of” Raphael filing suit, or alternatively, nominal damages. As to
attorney’s fees, costs, and litigation expenses—including lost manhours responding
to litigation—they are generally not recoverable as damages in and of themselves,
and this is not a case in which the general rule does not apply.2 See Woodhaven
Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837 (Tex. App.—
Dallas 2014, no pet.); Eberts v. Businesspeople Pers. Servs., Inc., 620 S.W.2d 861,
863 (Tex. App.—Dallas 1981, no writ) (“Expenses of litigation are not recoverable
as damages unless expressly provided by statute or contract. . . . This rule applies to
a litigant’s loss of time.”). Additionally, Camden’s other allegation of “loss of the
benefits of the contract(s)” is too vague and conclusory to constitute “clear and
specific” evidence of damages. See Marble Ridge Cap., 611 S.W.3d at 122 (stating
2 The “two situations where [attorney’s fees] may be considered actual damages” are not present here. See RAS Group, Inc. v. Rent-A-Ctr. E., Inc., 335 S.W.3d 630, 641 (Tex. App.—Dallas 2010, no pet.). Those two situations arise when, (1) “[i]n a legal malpractice case, the plaintiff’s damages may include the attorney’s fees paid to the defendant-attorney in the underlying case,” and (2) “the defendant’s tort requires a party to protect its own interests by bringing or defending an action against a third party, the plaintiff may recover from the defendant the attorney’s fees incurred in the action against the third party.” Id. –14– that “clear and specific” evidence is unambiguous, free from doubt, and explicit, and
the term “clear and specific” pertains to the quality of evidence required to establish
a prima facie case). Finally, we cannot conclude that pleading “nominal damages”
suffices as clear and specific evidence establishing a prima facie case for damages.
Nominal damages are damages in name only, see Ameritech Servs., Inc. v. SCA
Promotions, Inc., No. 05-03-00247-CV, 2004 WL 237760, at *3–4 (Tex. App.—
Dallas Feb. 10, 2004, no pet.) (mem. op.), that are awarded specifically when
“damages are not proved,” see Huntington Corp. v. Inwood Const. Co., 472 S.W.2d
804, 808 (Tex. App.—Dallas 1971, writ ref’d n.r.e.). “[N]ominal damages are
simply a vehicle for taxing the defendant with costs” and, if “a party file[s] a petition
for nominal damages only, he has failed to state a cause of action.” ITT Com. Fin.
Corp. v. Riehn, 796 S.W.2d 248, 257 (Tex. App.—Dallas 1990, no writ). Given this,
we conclude Camden failed to establish by clear and specific evidence a prima facie
case for, at the very least, the element of damages. Accordingly, because Camden
failed in its step-two burden under the TCPA, we conclude the trial court erred in
failing to grant Raphael’s motion to dismiss as to the breach of contract claim.
Attorney’s fees
If the court orders dismissal of a legal action—except for compulsory
counterclaims, addressed below—under the TCPA, the court (1) shall award to the
moving party court costs and reasonable attorney’s fees incurred in defending
–15– against the legal action; and (2) may award to the moving party sanctions against the
party who brought the legal action as the court determines sufficient to deter the
party who brought the legal action from bringing similar actions described in this
chapter. TEX. CIV. PRAC. & REM. CODE § 27.009(a). If the court orders dismissal of
a compulsory counterclaim, the court may award to the moving party reasonable
attorney’s fees incurred in defending against the counterclaim if the court finds that
the counterclaim is frivolous or solely intended for delay. Id. § 27.009(c).
A party incurs attorney’s fees under § 27.009 when it becomes liable for the
attorney’s fees. Cruz v. Van Sickle, 452 S.W.3d 503, 524 (Tex. App.—Dallas 2014,
pet. struck); Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010) (“A fee is incurred
when one becomes liable for it.”); cf. Jackson v. State Office of Admin. Hearings,
351 S.W.3d 290, 299 (Tex. 2011) (under statute permitting recovery of “incurred”
attorney’s fees, pro se attorney-litigant did not incur attorney’s fees because he did
not at any time become liable for attorney’s fees and thus could not recover fees).
Here, the record reveals Raphael represented himself in the trial court and on appeal,
and we consequently conclude he cannot recover attorney’s fees under either
§ 27.009(a) or (c) because he did not incur any such fees. See Cruz, 452 S.W.3d at
524 (concluding that, where the undisputed evidence established the parties were
represented pro bono, the parties did not incur any attorney’s fees and thus were not
entitled to award of fees under TCPA); cf. Jackson, 351 S.W.3d at 299. However,
–16– we remand for the trial court to award, under § 27.009(a)(1), any court costs incurred
by Raphael in defending against the legal action and to consider his claim for
sanctions under § 27.009(a)(2). See Doe v. Cruz, 683 S.W.3d 475, 503 (Tex. App.—
San Antonio 2023, no pet.) (concluding movant should recover costs and could
recover sanctions under § 27.009(a) even though the legal action dismissed was a
compulsory counterclaim because § 27.009(c) addresses only attorney’s fees and,
thus, “subsection (a) applies in all other respects”).
Conclusion
We sustain Raphael’s issues on appeal as to Camden’s breach of contract
claim. We reverse the denial of Raphael’s TCPA motion to dismiss as to this claim,
and we remand to the trial court to dismiss this claim and to address court costs and
sanctions in accordance with this opinion.
/Ken Molberg/ 240053f.p05 KEN MOLBERG JUSTICE
–17– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ZANE M. RAPHAEL, Appellant On Appeal from the 193rd Judicial District Court, Dallas County, Texas No. 05-24-00053-CV V. Trial Court Cause No. DC-23-01385. Opinion delivered by Justice CAMDEN DEVELOPMENT, INC., Molberg. Justices Nowell and Appellee Kennedy participating.
In accordance with this Court’s opinion of this date, we REVERSE the denial by operation of law of appellant’s motion to dismiss as to appellee’s breach of contract claim. We REMAND to the trial court to dismiss that claim and for consideration of court costs and sanctions in accordance with this opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 4th day of December, 2024.
–18–