It seems that the Texas Citizens Participation Act (Chapter 27, CPRC) is having a bad year in the appellate courts. The Dallas Court of Appeals has added to its woes, upholding a trial court order denying a TCPA motion to dismiss on the basis of untimeliness.

The underlying case in Alexander Perry and Labora Real Estate, Inc. F/K/A CES Property Investments, Inc. v. Paul and Leslie Gleiser, Steve and Tina Gwinn, and Ward and Cheri Copley (No. 05-21-00743-CV) arose from the use of a pair of five-bedroom duplexes in University Park that are leased to 20 SMU students, despite a city ordinance designating the property for residential use as a household. As kind will, the college students raised a lot of hell. The neighbors didn’t just get mad, they decided to get even. They sued the owner (Hawthorne), a manager of the properties (Labora), a manager of Hawthorne and agent of Labora (Perry), and another manager of Hawthorne (Hartland-Mackie) for nuisance, seeking damages and injunctive relief. In response to defendants’ special exceptions, the trial court ordered the plaintiffs to amend their pleading to “include allegations that set forth how liability extends to each of the Defendants named in this lawsuit.” Plaintiffs did so. Nine days later, defendants filed a TCPA motion to dismiss alleging that the plaintiffs’ lawsuit violated their right of assembly. The trial court denied the motion as untimely.

The court of appeals agreed. There was no dispute in the case that the defendants’ TCPA motion was filed more than 60 days after the date of the plaintiffs’ original pleading. The question was whether the plaintiffs’ amended pleading “(1) adds a new party or parties, (2) alleges new essential facts to support previously asserted claims, or (3) asserts new legal claims or theories previously asserted.” If any of these conditions are met, the 60-day clock under § 27.003(b) restarts. See Montelongo v. Abrea, 622 S.W.3d 290-293-94 (Tex. 2021). The defendants claim that the amended pleading added “new essential facts” that brought the plaintiffs’ claims within the TCPA’s protections for rights of association. They pointed to allegations that the defendants had a “common plan” to locate college housing in a residential neighborhood. The court of appeals, however, would have nothing of it.

The term “common plan” had nothing to do with the defendants’ constitutional right of association but referred to their joint liability for tortious acts committed in the pursuance of a “common plan or design.” Nothing in the amended pleading, moreover, added anything to the original allegations of how the defendants created a nuisance or failed to oversee their tenants. Additionally, though the amended pleading added some details to the facts stated in the original (e.g., that Perry was a corporate manager and that Labora was a member of Hawthorne), these details “did not alter the essential nature of appellees’ nuisance claims, which are rooted in the excessive leasing, excessive occupation, and misuse of the properties. Amendments that merely provide specificity for a claim that defendants had notice of in the original petition will not alter the essential nature of the action and re-start the TCPA’s sixty-day time period.”

In our view, the defendants are lucky that they didn’t get popped for a frivolous TCPA motion to dismiss. The notion that they could escape litigation because they had a “constitutional right” to take concerted action to break the law is laughable, but unfortunately laughable things get litigated up the courts of appeals and have to be dealt with. This “litigation within litigation” aspect of the TCPA is something the Legislature addressed in 2019, and although this case is not about the 2019 amendments, we are glad to see appellate courts setting up definitive markers on the use of the statute.

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