Mireskandari v. Casey
| Decision Date | 19 November 2021 |
| Docket Number | No. 05-20-00769-CV,05-20-00769-CV |
| Citation | 636 S.W.3d 727 |
| Parties | Amir MIRESKANDARI, Appellant v. Kevan CASEY, Appellee |
| Court | Texas Court of Appeals |
David Eric Kassab, Lance Christopher Kassab, Houston, for Appellant.
Jason M. Hopkins, Dallas, for Appellee.
Before Justices Molberg, Goldstein, and Smith
In this accelerated, interlocutory appeal, Amir Mireskandari challenges the trial court's July 23, 2020 order denying his TCPA1 motion to dismiss Kevan Casey's declaratory judgment claim2 regarding disparaging statements Casey alleges Mireskandari made about him in a separate lawsuit. Casey alleges these statements violated a non-disparagement clause in a prior settlement agreement between the parties, which Mireskandari disputes. In two issues, Mireskandari argues the trial court erred by denying his TCPA motion to dismiss Casey's claim and by not awarding him attorneys’ fees. We affirm.
According to Casey's verified petition, the parties entered into an October 16, 2019 settlement agreement in connection with another lawsuit, in which Mireskandari agreed not to make any public statement that maligns, criticizes, denigrates, or disparages Casey. Both parties attached a copy of that agreement to their TCPA filings in the trial court.
The non-disparagement provision provides:
Neither Party shall directly or indirectly publish, issue or communicate with any public statement that maligns, criticizes, denigrates, or disparages the other Party. Each Party shall remove any statement about the other Party currently posted on the Internet to the extent it is in control. This section shall not prohibit any Party from truthfully testifying in any court proceeding or pursuant to other legal process.
Casey alleges Mireskandari breached the parties’ prior settlement agreement on April 13, 2020, by publicly filing a petition against Mireskandari's former attorney in a separate lawsuit and including in that petition "a whole host of statements that malign, criticize, denigrate or disparage Casey."
Both parties attached to their TCPA filings a copy of Mireskandari's original pleading in that separate lawsuit. Among other statements, that pleading avers that Casey "engaged in what is commonly known as a ‘pump-and-dump’ scheme in an effort to make millions off of [a company's] stock that he aggressively marketed, then quickly dumped shares."
Casey alleges that "a justiciable controversy exists with respect to the rights and status of the parties to the settlement agreement" because "Mireskandari contends that the agreement allows him to file publicly disparaging statements" and "Casey contends that the agreement clearly and unambiguously does not." Casey also alleges that "[t]his controversy will be resolved by a declaration that the public filing of disparaging statements constitutes a breach of the settlement agreement."
In terms of relief, Casey's pleading requests a declaration with certain language from the trial court—language we include in the table below—as well as his reasonable and necessary attorneys’ fees and expenses, and temporary and permanent injunctive relief "enjoin[ing] Mireskandari from continuing to make public disparaging statements about Casey."
In connection with his requests for injunctive relief, Casey alleges he has a probable right to relief on his claim because "Mireskandari has authorized public statements that malign, criticize, denigrate or disparage Casey, which constitutes a breach of the settlement agreement." He also alleges that if Mireskandari is not enjoined, Casey "will suffer imminent and irreparable harm in the form of, among other things, reputational harm and the loss of business opportunities" and that he has no adequate remedy at law "because the damages to his reputation and business are difficult if not impossible to quantify with any pecuniary standard, and because, on information and belief, Mireskandari will be unable to pay any damages capable of being calculated." Despite his reference to damages, Casey does not request damages in his pleading but does request attorneys’ fees.
Mireskandari filed an answer and amended it twice. In his live pleading, Mireskandari includes, among other things, a general denial and counterclaims against Casey for declaratory judgment and breach of contract. In their declaratory judgment claims, in one respect, the relief each party seeks mirrors the other's, in practical effect.
Specifically, the parties request these declarations:
| Casey's request: | Mireskandari's request: |
| "[T]he public filing of disparaging statements constitutes a breach of the parties’ prior settlement agreement." | "Mireskandari's filing [of] a meritorious suit in an unrelated matter does not constitute a breach of the parties’ prior settlement agreement." |
| (emphasis added) | (emphasis added) |
In other respects, Mireskandari's counterclaims differ from Casey's claims, and Mireskandari requests damages and other relief. Because those counterclaims are not before us, we need not discuss them further.
Four weeks after he was served with Casey's lawsuit, Mireskandari filed a TCPA motion to dismiss, arguing that Casey's claim should be dismissed because (1) Casey's action is "based on, related to, or in response to" Mireskandari's right to petition, (2) Casey could not establish a prima facie case with clear and specific evidence, and, in any event, (3) Mireskandari established a defense based on the judicial proceedings privilege, a privilege he includes as a defense in his live pleading.
Casey responded and disputed these arguments. With their TCPA-related filings, both parties submitted evidence that included, but was not limited to, the parties’ prior agreement and Mireskandari's pleading in his separate lawsuit.
Roughly two weeks after Mireskandari filed his TCPA motion, Casey filed a traditional motion for partial summary judgment on his claim, requesting all of the relief he sought in his pleading other than attorneys’ fees. Mireskandari filed a response in opposition, and in it he argued, in part, that Casey's claims were barred by the judicial proceedings privilege, the same defense Mireskandari relied upon in his TCPA motion. Both parties submitted evidence, and once again, both attached their prior settlement agreement and Mireskandari's pleading in his separate lawsuit.
On July 23, 2020, the trial court denied Mireskandari's TCPA motion by written order. Then, on August 20, 2020—more than twenty days later—the trial court issued a "Judgment for Declaratory and Injunctive Relief" in Casey's favor, granting his motion for partial summary judgment, declaring, in essence, that Mireskandari violated the non-disparagement clause in the parties’ prior settlement agreement, and permanently enjoining Mireskandari from doing so. The judgment provided that the court "shall retain jurisdiction to enforce this judgment," and stated:
On August 24, 2020, four days after that judgment, and thirty-two days after the court's July 23, 2020 order denying Mireskandari's TCPA motion, Mireskandari filed a notice of appeal "relate[d] to the Order denying Mireskandari's Motion to Dismiss Pursuant to the Texas Citizens’ Participation Act signed on July 23, 2020." The notice of appeal did not refer to the August 20, 2020 judgment and stated the appeal was accelerated, interlocutory, and timely.
Despite his reference to timeliness, Mireskandari's notice of appeal implicitly acknowledged that his time to file an accelerated, interlocutory appeal had passed, barring an extension,3 as he indicated a motion for extension of time would be filed within fifteen days after the original deadline. See TEX. R. APP. P. 10.5, 26.3.
On August 26, 2020, fourteen days after the original deadline, Mireskandari filed a motion to extend his time to file a notice of appeal. We granted the motion and deemed his notice of appeal timely for jurisdictional purposes.
Mireskandari also filed an "Emergency Motion to Enforce Stay of Trial Court Proceedings and for Sanctions." We granted that motion
Mireskandari raises two issues in this appeal, arguing the trial court erred by denying his TCPA motion to dismiss Casey's claim and by not awarding him attorneys’ fees. Before we turn to those issues, however, we must first consider whether the procedural history affects our interlocutory jurisdiction.
We are presented with an unusual situation here: an interlocutory appeal of an order denying a request to dismiss a claim of Casey's that the trial court has now adjudicated in Casey's favor. In this...
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