UNION PACIFIC RAILROAD COMPANY, Appellant v. BETTY CHENIER, ET AL., Appellees
NO. 01-21-00073-CV
Court of Appeals For The First District of Texas
Opinion issued February 24, 2022.
On Appeal from the 152nd District Court, Harris County, Texas, Trial Court Case No. 2020-10063
O P I N I O N
Because we conclude that the district court did not err in denying Union Pacific s motion to dismiss plaintiffs claims under the TCPA, we affirm.2
Background
In this TCPA appeal, the factual background rests on the plaintiffs allegations
Union Pacific and its predecessors maintained their plant operations for over 50 years at a facility in the residential neighborhoods of Kashmere Gardens and the Fifth Ward. Union Pacific first used this facility to treat wood railroad ties with creosote, a toxic chemical.4 Union Pacific never removed the creosote waste from the Fifth Ward and Kashmere Gardens neighborhoods after it stopped using creosote because of safety concerns in the 1980s.
In 2014, Union Pacific contacted Fifth Ward and Kashmere Gardens property owners, presented them with restrictive covenants, and asked that they agree to not use their groundwater, reasoning that the “chemicals of concern were managed such that human exposure was prevented and that other groundwater resources were protected.”
In April 2019, Union Pacific applied for a permit renewal with the Texas Commission on Environmental Quality (TCEQ).5 The TCEQ issued a letter to Union Pacific entitled “4th Technical Notice of Deficiency for Permit Renewal,” noting eight deficiencies that subjected the company to a denial of the permit renewal.
Later, the TCEQ requested the Texas Department of Health and Human Services to conduct a cancer cluster survey of the Kashmere Gardens and Fifth Ward neighborhoods. The TCEQ representative explained that creosote and related compounds contaminated the soil and groundwater under more than 100 homes north of Union Pacific s facility. In May 2019, Union Pacific collected groundwater samples and sent them to the TCEQ for testing. The analysis revealed that the groundwater samples contained creosote contaminants, along with other chemicals that “were greater than the acceptable limit.”
In August 2019, the TCEQ investigated the occurrence of six types of adult cancers within the Fifth Ward and Kashmere Gardens. The investigation revealed increased occurrences of various cancers. Per the investigation, the toxic chemicals contaminated the soil, air, and water in these neighborhoods and caused property and personal injury damages, including cancer, to the plaintiffs and others.
The essence of plaintiffs claims is that Union Pacific was aware of the risks associated with the exposure to creosote and other toxic contaminants and it failed to disclose such risks to the plaintiffs, which caused property damage and personal injuries. The plaintiffs alleged that they sustained damages, including past and future medical expenses, past and future physical impairment, past and future physical pain, and property damage. The plaintiffs sought over $50,000,000 in damages.
On remand, Union Pacific moved to dismiss the plaintiffs property-damage claims for negligence, negligence per se, negligent misrepresentation, and nuisance under the TCPA. It did not move to dismiss the plaintiffs fraud claim or any claims for personal injury damages. See
The trial court denied Union Pacific s TCPA motion to dismiss. Union Pacific appealed, challenging the trial court s denial of its motion. See
Dismissal of Claims under the TCPA
A. Standard of review
We review de novo the denial of a TCPA motion to dismiss. Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App. Houston [1st Dist.] 2013, pet. denied). In deciding if dismissal of a legal action is warranted, 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.”
B. Applicable law
The TCPA “is a bulwark against retaliatory lawsuits meant to intimidate or silence citizens on matters of public concern.” Hall, 579 S.W.3d at 376. The purpose of the TCPA 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 law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.”
A TCPA movant starts the two-step process for the expedited dismissal of such legal actions. In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). In the first step, the TCPA movant bears the initial burden of showing by a preponderance of evidence that the suit is based on or in response to its exercise of one of the three First Amendment rights: the right of free speech, right to petition, or right of association.
C. The TCPA does not apply
Union Pacific s TCPA motion asserts that the plaintiffs suit against it is based on or in response to Union Pacific s exercise of its right of free speech and right to petition. The plaintiffs contend that Union Pacific s use of creosote and other toxic chemicals contaminated the soil, air, and water in the Fifth Ward and Kashmere Gardens neighborhoods because Union Pacific “knew or should have known that the creosote plume and other contaminants were a danger to the residents in those neighborhoods.” The plaintiffs cite TCEQ s 4th Technical Notice of Deficiency letter in support of the various duties to which Union Pacific was required, but failed, to perform to renew its permit. The TCEQ noted these concerns:
Review of the August 13, 2018 Monitoring Report indicates that the groundwater plume has migrated approximately 200 feet to the north/northeast affecting additional off-site properties.
- Review of the December 3, 2018 and February 12, 2019, “Off-site Notification Updates” indicate the number of off-site properties impacted by the groundwater plume migration increased from 101 to 110 properties.
- [Union Pacific s] current monitoring well system fails to monitor groundwater protective throughout each of the four transmission zones, therefore, further assessment is needed which includes the installation of the additional wells and monitoring data. Additional assessment is discussed more in details in comment nos. T35(4), T42(4), T43(3), T44(4), T45(4) and T48(3).
- The current assessment of the total petroleum hydrocarbon - non-aqueous phase liquid (TPH-NAPL) seep source(s) and extent is insufficient because only a limited soil which shall include additional soil borings, well installation and monitoring. Additional assessment is discussed in more detail in comment nos. T35(4), T42(4), T43(3), T44(4), T45(4) and T48(3).
- The [Response Action Plan] does not include the implemented TPH-NAPL interim response actions for the Englewood Intermodal Yard cap area. The [Response Action Plan] needs to be revised to include the installed system design, procedures and a schedule for evaluation of the effectiveness of the response action as outlined in comment nos. T35(4),
T42(4), T43(3), T44(4), T45(4) and T48(3). - Evaluation of potential Vapor Intrusion (VI) is needed.
- Since the plume has migrated, the proposed corrective action program consisting of plume management zones (PMZs) with monitored natural attenuation (MNA), and monthly DNAPL recovery contained in the [Response Action Plan] Rev. 3 is inadequate and does not control nor adequately monitor the extent of the plume. The corrective action program in [Response Action Plan] Rev. 3 requires revision as outlined in comment nos. T35(4), T42(4), T43(3), T44(4), T45(4) and T48(3).
- [Union Pacific] has failed to obtain the necessary consent from off-site affected property owners for an off-site PMZ. In the April 10, 2017 3rd [Notice of Deficiency], the TCEQ denied [Union Pacific s] request for the Technical Impracticability (TI) for DNAPL removal because [Union Pacific] did not make an adequate demonstration in accordance with 30 TAC §350.33(f)(3)(E) requirements of TRRP.
Therefore, for the proposed PMZ boundary to extend off-site, [Union Pacific] must obtain written consent from all off-site affected property owners to file a restrictive covenant (RC) prohibiting the use of groundwater on their property. However, some off-site property owners have declined consent or cannot be located to obtain consent. Without the consent of the off-site property owner[s][,] the TCEQ cannot approve an off-site PMZ. There are other avenues which would allow an off-site PMZ without the consent of property owners, but [Union Pacific] has not satisfied those requirements as specified in 30 TAC 350.111(c)(2) and TCEQ Guidance TRRP-16 (TCEQ RG-366/TRRP-16 May 2010).
1. Right of free speech
a. Negligence, negligence per se, and nuisance
Union Pacific asserts that the plaintiffs suit threatened its right of free speech. Union Pacific maintains that the plaintiffs claims involved communications about matters of public concern and points to a particular statement they are alleged to have made while attempting to obtain the plaintiffs consent for certain restrictive covenants. Union Pacific points to plaintiffs allegation that “[Union Pacific] continued to represent to community residents that there was no threat of contamination or human exposure” to the alleged “creosote plume and other contaminants.”
The TCPA defines “exercise of the right of free speech” as a “communication made in connection with a matter of public concern.”
In viewing the pleadings and evidence in the light most favorable to the plaintiffs, we conclude that the Union Pacific has not carried its burden of establishing that the suit is based on or in response to its exercise of its right of free speech. The alleged statement, alone, does not provide the basis for the legal claims or the impetus
Our opinion in Choctaw Constr. Servs. LLC v. Rail-Life R.R. Servs., LLC, 617 S.W.3d 143 (Tex. App. Houston [1st Dist.] 2020, no pet.), provides a useful contrast about the required nexus between speech and the plaintiffs claims. In Choctaw, Rail-Life sued Choctaw for tortiously interfering with its contracts with Union Pacific and alleged multiple claims. Id. at 145. The basis of Rail-Life s suit was that Choctaw had made statements (1) falsely accusing Rail-Life s employees of misusing badges to gain access to a railroad facility, (2) falsely accusing Rail-Life s employees of stealing fuel and equipment from Choctaw, and (3) reporting the badge misuse and theft to the authorities. Id. at 145-46. Choctaw moved to dismiss Rail-Life s claims under the TCPA and argued that Rail-Life s lawsuit was based on or in response to Choctaw s exercise of the right of free speech and the right to petition. Id. at 146. Choctaw contended that it was justified in communicating the violations and relied on federal laws and Union Pacific s policy, which required Choctaw to report any suspicions of unauthorized use of access badges for security and safety reasons. Id. at 150-51. We held that the alleged communications were made based on or in response to Choctaw s reporting of badge misuse and theft. Id. at 151.
Here, though, for the negligence, negligence per se, and nuisance claims, there is only a tenuous nexus between the alleged communication by Union Pacific and the plaintiffs claims. For these claims, the plaintiffs do not allege that they were injured by Union Pacific s statements. Cf. Choctaw Constr. Servs., 617 S.W.3d at 145. Rather, the substance of the plaintiffs claims is Union Pacific s alleged conduct. The plaintiffs seek to recover damages for “acts and omissions” of duties that the TCEQ had imposed on Union Pacific.
Statements by Union Pacific on the safety from contamination and human exposure only “relate[ ] to” the negligence and nuisance claims, which was only sufficient under the prior version of the TCPA. See Cavin v. Abbott, 545 S.W.3d 47, 69 n.85 (Tex. App. Austin 2017, no pet.) (relying on dictionaries to define “relates to” as just “some sort of connection, reference, or relationship“); see also Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 604 (Tex. App. San Antonio 2018, pet. denied) (interpreting “relates to” as a broad qualifying phrase). Under the prior TCPA statute, the phrase “relates to” allowed defendants to seek dismissal of claims for “tangential communications.” ML Dev, LP v. Ross Dress For Less, Inc., No. 01-20-00773-CV, S.W.3d , 2021 WL 2096656, at *2 (Tex. App. Houston [1st Dist.] May 25, 2021, no pet. h.). When the Legislature removed the phrase “relates to” from the current version of the TCPA, the removal of that phrase narrowed the “categories of connections a claim could have to the exercise” of one of three First Amendment rights that allowed a TCPA movant to seek dismissal.
b. Negligent misrepresentation
The negligent misrepresentation claim alleges both an affirmative misrepresentation about the safety of the chemicals and a failure to warn. But the TCPA only applies to “communications,” not the failure to communicate. See
The party seeking relief is the one with the burden to show that they are entitled to it. It is not the court s role to segregate the wheat from the chaff. See, e.g., Spradlin v. State, 100 S.W.3d 372, 381 (Tex. App. Houston [1st Dist.] 2002, no pet.) (an entire affidavit cannot be excluded if only a portion is inadmissible); Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 126 (Tex. App. Eastland 2001, pet. denied) (citing Speier v. Webster Coll., 616 S.W.2d 617, 619 (Tex. 1981)) (a general objection to evidence that does not specify the objectionable portion is properly overruled if any part of that evidence is admissible).
Union Pacific, as the movant, had the burden to show that the negligent misrepresentation claim is based on or in response to its exercise of the right of free speech. See
In their motion to dismiss, Union Pacific addressed the protected and unprotected components of plaintiffs negligent misrepresentation claim together. Because Union Pacific did not analyze the protected and unprotected conduct separately, the trial court did not err by denying the motion to dismiss as to negligent misrepresentation. W. Mktg., Inc., 616 S.W.3d at 911. Thus, Union Pacific has not met its initial burden of showing that any of plaintiffs claims were based on or in response to its right of free speech.
2. Right to petition
Similarly, Union Pacific has not established that any of plaintiffs claims are based on or in response to communications it made in the exercise of its right to petition. Union Pacific maintains that the plaintiffs alleged that Union Pacific contaminated their neighborhoods and that Union Pacific failed to adequately warn them “about risks associated with
The “exercise of the right to petition” includes, among other things, “a communication in or pertaining to “an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government” or “a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding.”
As with Union Pacific s free-speech argument, we also conclude that Union Pacific has not established that the plaintiffs suit is based on or in response to Union Pacific s exercise of the right to petition. Plaintiffs complaints about Union Pacific s alleged contamination of the residential neighborhoods are complaints about Union Pacific s actions and inaction in the neighborhoods, not its communications with the TCEQ. Union Pacific fails to draw an adequate connection between its right to petition and the plaintiffs claims to invoke the TCPA under the amended language. ML Dev, LP, 2021 WL 2096656, at *5. Union Pacific s communications with the TCEQ merely “relate to” the plaintiffs claims for negligence, negligence per se, nuisance, and negligent misrepresentation.
Conclusion
Union Pacific did not meet its burden to show that plaintiffs suit was based on or in response to its exercise of its right of free speech or to petition under the TCPA. Thus, the trial court did not err in denying Union Pacific s motion to dismiss. We affirm.6
Sarah Beth Landau
Justice
Panel consists of Chief Justice Radack and Justices Landau and Countiss.