The Dallas Court of Appeals has affirmed a trial court’s order dismissing a TCPA motion to dismiss as not timely filed.

The facts of Hongyi Li, on Behalf of Veggies House, LLC, Appellant v. Sean Yunxuan Shiao (No. 05-23-00445-CV; December 31, 2024) are as follows. Li and Shiao owned Veggies House, LLC. On December 17, 2021, Li filed this lawsuit against Shiao for breach of contract, fiduciary duty, conversion, and violation of the Texas Theft Liability Act. On October 5, 2022, Shiao filed an original counterclaim against the lawsuit, stating that he had developed a property for Veggies House then contracted to sell it to CCH Realty, LLC, and that Li had consented to this contract. However, before Shiao filed the original counterclaim, Li also filed a notice of lis pendens to contest her consent to the CCH contract. CCH then terminated the contract to purchase the property. Li did not file a TCPA motion within sixty days of the original counterclaim but filed a combination no-evidence and traditional motion for summary judgment, which the trial court denied. On April 11, 2023, Shiao filed a first amended counterclaim containing three extra sentences alleging facts. The trial court dismissed the counterclaim.

On April 24, 2023, Li filed a TCPA motion to dismiss the first amended counterclaim. She argued that her TCPA motion was timely because her sixty-day deadline started after the first amended counterclaim. She argued that the original counterclaim did not explain that her filing of lis pendens was the basis for the claim for breach of contract and that she only realized this due to the first amended counterclaim. Shiao argues that the original counterclaim did provide notice that the lis pendens was the basis for breach of contract, succinctly arguing, “Just because it [the first amended counterclaim] refines the factual arguments or the factual assertions in the case, that’s not—that doesn’t retrigger the deadline[.]” (5). Li did not file a motion seeking to extend the deadline, so the trial court denied her TCPA motion, leading to her appeal.

In an opinion by Justice Pederson, the appellate court examined the original counterclaim and found that it provided that Li’s lawsuit and lis pendens was the basis for breach of contract, meaning that Li should have filed her TCPA motion within sixty days of the original counterclaim. The appellate court looked to the Texas Supreme Court for guidance and stated that “the amended counterclaim does not allege ‘new essential facts’ ” that change the claim (11).

The appellate court rejected Li’s argument under Kinder Morgan because that case had an original petition with no essential facts at all compared to the amended one. The appellate court affirmed the trial court’s decision on the first issue and also affirmed the trial court’s decision to deny Li’s motion to extend the time for the TCPA motion for the same reasons.

TCJL Research Intern Dilara Muslu researched and prepared this article.

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