Patriot Contracting, LLC and Stephen J. Friedman v. Mid-Main Properties, LP
650 S.W.3d 819
Tex. App.2022Background
- Mid‑Main Properties hired Patriot Contracting (owned by Stephen Friedman) as general contractor for a Midtown Houston project; Mid‑Main alleges defective work, delays, abandonment, false pay applications, and a mechanic’s lien that threatened its construction loan.
- Friedman allegedly contacted Mid‑Main’s lender and subcontractors; Mid‑Main entered restart agreements and completed the project in Feb 2018.
- Patriot sued a subcontractor and later added Mid‑Main; Mid‑Main filed a counterclaim (first in 2017) and amended it repeatedly.
- Seventh Amended Counterclaim (Dec. 20, 2019) asserted fraud, declaratory relief (void lien), tortious interference, Property Code §53.085 personal liability, and related claims.
- Eighth Amended Counterclaim (Sept. 2, 2020) removed two claims and edited factual background but did not add new parties or new causes of action.
- Patriot and Friedman filed a TCPA motion to dismiss on Oct. 14, 2020, arguing the Eighth Amended Counterclaim restarted the 60‑day TCPA deadline; the trial court denied the motion as untimely, found it frivolous/for delay, and awarded fees; appellants appealed.
Issues
| Issue | Plaintiff's Argument (Mid‑Main) | Defendant's Argument (Patriot/Friedman) | Held |
|---|---|---|---|
| Whether the Eighth Amended Counterclaim triggered a new 60‑day TCPA deadline | Eighth Amended pleading did not add new parties/claims or new essential facts; no new deadline | Eighth Amended pleading alleged new factual material (including ongoing conduct) so it reset the 60‑day clock | Court: No new legal action—Eighth Amended Counterclaim did not add new essential facts; motion untimely |
| Whether the “continues to the present” language alleged new essential facts | Phrase merely reasserts previously alleged continuing misconduct; Mid‑Main had given fair notice | Phrase implies post‑December 2019 wrongful acts and thus new facts triggering a new deadline | Court: “Continues to the present” did not affirmatively plead new essential facts; insufficient to restart TCPA clock |
| Whether edits to the pay‑application allegations added new essential facts (timing/motivation) | Changes did not alter which pay applications were complained of (Apps 32–35); edits removed, not added, scienter language | Edits expanded complaint to invoices submitted before abandonment and changed alleged motivation—new facts | Court: Edits did not add new essential facts; defendants had long notice of the allegedly false pay applications |
| Whether the trial court abused discretion in finding the TCPA motion frivolous and awarding fees | Motion lacked legal basis because it was untimely; courts uniformly held similar motions untimely at filing time, so finding was reasonable | Motion was colorable given evolving TCPA jurisprudence and arguable distinctions in pleadings | Court: No abuse of discretion—motion frivolous or lacking nonfrivolous timeliness basis; fees recoverable |
Key Cases Cited
- Montelongo v. Abrea, 622 S.W.3d 290 (Tex. 2021) (amendments that add no new parties, essential facts, or claims do not restart TCPA 60‑day clock)
- Kinder Morgan SACROC, LP v. Scurry County, 622 S.W.3d 835 (Tex. 2021) (same legal principle reaffirming Montelongo)
- TV Azteca, S.A.B. de C.V. v. Trevino Ruiz, 611 S.W.3d 24 (Tex. App.—Corpus Christi–Edinburg 2020) (amended petition that added specific new statements can make TCPA motion timely as to those statements)
- Petrobras Am., Inc. v. Astra Oil Trading NV, 633 S.W.3d 606 (Tex. App.—Houston [14th Dist.] 2020) (amendment that does not change the substantive allegation’s essential nature does not restart the TCPA deadline)
- Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127 (Tex. 2019) (describing TCPA’s purpose and balancing measures)