649 S.W.3d 440
Tex. App.2022Background
- Plaintiffs (13 residents of Houston’s Fifth Ward and Kashmere Gardens) sued Union Pacific for negligence, negligence per se, negligent misrepresentation, fraud, and nuisance, alleging long‑term creosote and other contamination from a nearby Union Pacific facility caused property damage and personal injuries (including cancers).
- Union Pacific historically treated wood ties with creosote, allegedly never removed wastes after use ceased; in 2014 it sought residents’ consent to restrictive covenants limiting groundwater use and represented that exposures were controlled.
- During a 2019 permit‑renewal process, TCEQ issued a technical notice of deficiency outlining plume migration, inadequate monitoring, and the need for off‑site covenants; groundwater testing later detected contaminants above acceptable limits and TCEQ requested a cancer‑cluster survey.
- Plaintiffs sought over $50 million; Union Pacific removed to federal court, the case was remanded to state court after plaintiffs amended to add Texas residents.
- Union Pacific moved to dismiss plaintiffs’ property‑damage claims under the amended Texas Citizens Participation Act (TCPA), arguing the claims were “based on or in response to” its exercise of free speech (statements to residents) and right to petition (communications with TCEQ); the trial court denied the motion and Union Pacific appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether negligence, negligence per se, and nuisance claims are "based on or in response to" UP’s exercise of free speech | Claims arise from UP’s conduct and failure to warn, not from protected speech | UP’s statements to residents (e.g., no threat of contamination) and restrictive‑covenant solicitations are communications on matters of public concern | Denied — UP failed to show claims were based on protected speech; plaintiffs sued conduct, not speech |
| Whether negligent‑misrepresentation claim is subject to TCPA (free speech) | Claim includes failure to warn (non‑communication) and affirmative misrepresentations about safety | Claim arises from UP’s communications and thus is protected speech | Denied — claim mixes protected and unprotected conduct; UP did not segregate protected parts, so TCPA relief unavailable |
| Whether plaintiffs’ claims are "based on or in response to" UP’s exercise of right to petition (communications with TCEQ) | Claims target UP’s actions/inaction in neighborhoods, not UP’s regulatory submissions | UP’s permit‑renewal communications and interactions with TCEQ invoke the petition right | Denied — UP did not establish the requisite nexus; communications only "relate to" claims under prior TCPA language but do not meet the amended "based on or in response to" standard |
| Burden and segregation under the amended TCPA | Plaintiffs rely on ordinary pleading to show claims rest on conduct | Movant must prove by preponderance the suit is based on protected activity; if claims mix protected/unprotected conduct, movant must segregate | Denied — UP failed initial burden; where conduct is mixed the movant must specify segregation or court should deny |
Key Cases Cited
- Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370 (Tex. 2019) (explaining TCPA purpose and review framework)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (claims are assessed based on plaintiff’s allegations)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (two‑step TCPA dismissal procedure)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (legislature’s omission of language is presumed purposeful)
- Choctaw Constr. Servs. LLC v. Rail‑Life R.R. Servs., LLC, 617 S.W.3d 143 (Tex. App.—Houston [1st Dist.] 2020) (contrast where communications were the basis for suit)
- Cavin v. Abbott, 545 S.W.3d 47 (Tex. App.—Austin 2017) (discussion of prior TCPA "relates to" scope)
- W. Mktg., Inc. v. AEG Petroleum, LLC, 616 S.W.3d 903 (Tex. App.—Amarillo 2021) (movant must segregate protected conduct or face denial)
- Dolcefino, LLC v. Cypress Creek EMS, 540 S.W.3d 194 (Tex. App.—Houston [1st Dist.] 2017) (describing TCPA’s role in early dismissal of meritless suits)