OPINION Appellees sued appellant Union Pacific Railroad Company for claims based on Union Pacific’s contamination of residential neighborhoods in Houston with creosote, a probable carcinogen. The trial court denied Union Pacific’s motion to dismiss appellees’ “property-damage claims” under the Texas Citizens Participation Act (TCPA).[1] In a single issue, Union Pacific contends that the trial court erred by denying the motion. We affirm. TCPA Legal Principles The TCPA was designed to protect a defendant’s rights of speech, petition, and association while protecting a claimant’s right to pursue valid legal claims for injuries caused by the defendant. Montelongo v. Abrea, 622 S.W.3d 290, 295 (Tex. 2021) (citing Tex. Civ. Prac. & Rem. Code § 27.002)). To accomplish this objective, the TCPA provides for a multi-step process for the dismissal of a legal action to which it applies. See id. First, the movant must demonstrate that the legal action is “based on or is in response to” their exercise of the right of free speech, petition, or association. Id. If the movant meets this burden, the claimant may avoid dismissal by establishing by clear and specific evidence a prima facie case for each essential element of the claim in question. Id. Moreover, a claimant may avoid dismissal by establishing that the legal action is exempt from the TCPA under a specific statutory exemption. Hieber v. Percheron Holdings, LLC, 591 S.W.3d 208, 210–11 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (citing Tex. Civ. Prac. & Rem. Code § 27.005(d)). A “legal action” means a “lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal, declaratory, or equitable relief.” Tex. Civ. Prac. & Rem. Code § 27.001(6). An “exercise of the right of free speech” means a communication made in connection with a matter of public concern. Id. § 27.001(3). An “exercise of the right to petition” means, among other things, (1) a communication in or pertaining to “an executive or other proceeding before a department of the state or federal government,” or (2) “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.” Id. § 27.001(4).[2] An “exercise of the right of association” means to join together to collectively express, promote, pursue, or defend common interests relating to a governmental proceeding or a matter of public concern. Id. § 27.001(2). A “communication” is broadly defined as “the making or submitting of a statement or document in any form or medium.” Id. § 27.001(1); see also Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). The definition does not include a “failure to communicate.” DOJO Bayhouse, LLC v. Pickford, No. 14-20-00237- CV, 2021 WL 6050677, at *4 (Tex. App.—Houston [14th Dist.] Dec. 21, 2021, no pet.) (mem. op.). The “exemptions” section of the TCPA provides in relevant part that the TCPA does not apply to “a legal action seeking recovery for bodily injury, wrongful death, or survival” or “a legal action based on a common law fraud claim.” Tex. Civ. Prac. & Rem. Code § 27.010(3), (12). We review de novo whether the parties have met their respective burdens. See M.A. Mills, P.C. v. Kotts, No. 14-20-00395-CV, 2022 WL 176125, at *2 (Tex. App.—Houston [14th Dist.] Jan. 20, 2022, no pet. h.). In reviewing these issues, the pleadings are the “best, and all sufficient evidence of the nature” of a claim. DOJO Bayhouse, 2021 WL 6050677, at *5 (quoting Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)). We view the pleadings in the light most favorable to the nonmovants, favoring the conclusion that their claims are not predicated on protected expression. Sanchez v. Striever, 614 S.W.3d 233, 246 (Tex. App.— Houston [14th Dist.] 2020, no pet.). Dismissal under the TCPA is determined on a claim-by-claim basis. Repub. Tavern & Music Hall, LLC v. Laurenzo’s Midtown Mgmt., LLC, 618 S.W.3d 118, 122 (Tex. App.—Houston [14th Dist.] 2020, no pet.). “When a legal action is in response to both expression protected by the TCPA and other unprotected activity, the legal action is subject to dismissal only to the extent that it is in response to the protected conduct, as opposed to being subject to dismissal in its entirety.” Navidea Biopharm., Inc. v. Capital Royalty Partners II, L.P., No. 14-18-00740- CV, 2020 WL 5087826, at *4 (Tex. App.—Houston [14th Dist.] Aug. 28, 2020, pet. denied) (mem. op.). Appellees’ Petition In their petition, appellees assert claims against Union Pacific and other defendants for negligence, negligence per se, negligent misrepresentation, fraudulent concealment, and nuisance.[3] Appellees seek damages for wrongful death and survival, property damages, and damages for personal injuries, including: (1) physical pain; (2) physical impairment; (3) disfigurement; (4) mental anguish; (5) pecuniary losses; (6) the loss of use and enjoyment of real property; and (7) the loss of or diminished economic value of real property. Appellees allege that Union Pacific knowingly contaminated residential neighborhoods in Houston with creosote, a probable carcinogen, and that the contamination is ongoing. Appellees allege, “As a result of exposure to toxic chemicals used, stored, and improperly dumped at Union Pacific’s rail yard, Plaintiffs have suffered injuries in the form of cancer, death, and property damage caused by contamination.” Appellees allege, “Union Pacific and its consulting geologists . . . have misrepresented the extent of the threat posed by creosote waste and the DNAPL,[4] concealing the true nature of the hazard in reports to the TCEQ and communications with the public in order to obtain required permits.” Union Pacific has “failed to disclose the full extent of the contamination or the known health risks posed to property owners and others exposed to the contaminates over time.” Regarding the negligence claim, appellees allege that Union Pacific was negligent in the following ways: Failing to warn of the health hazards associated with creosote and toxic chemicals used, stored and dumped at or near the Engelwood Rail Yard; Failing to safely use, store and dump creosote and toxic chemicals known to be hazardous to human health; Failing to take reasonable steps to prevent and mitigate air, soil and water contamination caused by creosote and toxic chemicals known to be hazardous to human health; Failing to properly monitor and test for air, soil and water contamination caused by creosote and toxic chemicals known to be hazardous to human health; Failing to notify Plaintiffs of air, soil and water contamination caused by creosote and toxic chemicals known to be hazardous to human health; Failing to notify governmental agencies and authorities of air, soil and water contamination caused by creosote and toxic chemicals known to be hazardous to human health; Failing to disclose the full extent and nature of air, soil and water contamination at or near the Engelwood Rail Yard to Plaintiffs and governmental agencies; Failing to employ, train and supervise employees on the safe handling, storage, use and containment of creosote, toxic chemicals and waste known to be hazardous to human health; Failing to protect Plaintiffs and the general public from the harmful effects of exposure to creosote and toxic chemicals; Failing to prevent creosote and toxic chemicals from permeating ground water and creating a creosote NAPL beneath residential properties; Failing to take timely and reasonable steps to contain the creosote NAPL and mitigate the risks to human health posed by the creosote NAPL; Failing to warn of or prevent property damage caused by soil and water contamination caused by creosote and toxic chemicals known to be hazardous to human health; Failing to obtain reliable or adequate meteorological and geological surveys to ensure creosote and toxic chemicals would not contaminate air, soil and water; Failing to obtain reliable or adequate meteorological and geological surveys to reasonably evaluate the risk of air, soil and water contamination by creosote and toxic chemicals; and Failing to prevent Plaintiffs and the general public from coming into contact with creosote and other toxic chemicals, including, but not limited to failing to implement safety barriers and security measures to prevent public access to creosote and toxic chemicals at or near the Englewood Rail Yard. Regarding negligence per se, appellees allege that Union Pacific has violated several sections of the Administrative Code that prohibit the creation of a nuisance or endangering the public health and welfare as the result of storing, processing, disposing, or other conduct related to hazardous wastes. See 30 Tex. Admin. Code §§ 335.4, 335.177. Regarding negligent misrepresentation, appellees allege among other things that Union Pacific and other defendants “made representations to governmental agencies and Plaintiffs regarding the nature of the air, soil, and water contamination caused by creosote and toxic chemicals and their efforts to mitigate and monitor air, soil, and water contamination caused by creosote and toxic chemicals.” Appellees allege that Union Pacific and other defendants failed to use reasonable care in “adequately and properly disclosing” the hazards to human health and the nature and scope of the contamination caused by creosote and toxic chemicals. Appellees allege that the negligent misrepresentations have “proximately caused Plaintiffs’ damages.” Regarding fraudulent concealment, appellees allege that Union Pacific and other defendants knew of the hazards to human health posed by creosote and toxic chemicals, including the risk of disease, cancer, and death, yet “[t]o avoid liability and obtain operating permits from governmental agencies, Defendants intentionally concealed the scope and dangers associated with the air, soil, and water contamination caused by creosote and toxic chemicals from Plaintiffs, the government, and the general public.” Regarding nuisance, appellees allege that Union Pacific unreasonably invaded appellees’ interests in the private use and enjoyment of their homes and land by knowingly contaminating air, soil, and water on and underneath appellees’ properties. Additionally, Union Pacific unreasonably interfered with rights common to the general public, including permitting the discharge of creosote and toxic chemicals into public right of ways. Analysis Union Pacific contends that the trial court should have dismissed each of appellees’ claims to the extent they are “property-damage claims” because they are based on or in response to Union Pacific’s exercise of the rights of free speech, association, and petition. Union Pacific contends that the TCPA does not exempt property-damage claims or any of appellees’ claims under the fraud exception. Appellees respond that their claims are based on or in response to Union Pacific’s contamination, not the exercise of a protected right, and their claims are for physical injury and fraud, which are exempted from the TCPA. Negligence, Negligence Per Se, Fraudulent Concealment, and Nuisance Regarding appellees’ claims for negligence, negligence per se, fraudulent concealment, and nuisance, Union Pacific focuses on the global allegations contained in appellees’ petition that (1) Union Pacific “failed to disclose the full extent of the contamination or the known health risks posed to property owners and others exposed to the contaminates over time;” and (2) “Union Pacific and its consulting geologists . . . have misrepresented the extent of the threat posed by creosote waste and the DNAPL, concealing the true nature of the hazard in reports to the TCEQ and communications with the public in order to obtain required permits.” Union Pacific contends that these allegations show that appellees’ claims are based on or in response to Union Pacific’s exercise of the rights of free speech, association, and petition. The first global allegation is based on a failure to disclose—a failure to communicate—which does not implicate protected activity. See DOJO Bayhouse, 2021 WL 6050677, at *4. Regarding the second global allegation about Union Pacific and others having “misrepresented the extent of the threat posed by the creosote waste,” Union Pacific has not demonstrated that appellees’ negligence, negligence per se, fraudulent concealment, and nuisance claims are “based on” or “in response to” such misrepresentations. The misrepresentations do not form the “basis for the legal claims or the impetus for suit” concerning negligence, negligence per se, fraudulent concealment, or nuisance. See ML Dev., LP v. Ross Dress for Less, Inc., No. 01-20-00773-CV, 2021 WL 2096656, at *4 (Tex. App.— Houston [1st Dist.] May 25, 2021, no pet.) (reasoning that although alleged statements “may have accompanied” complained-of conduct, the communications themselves did not “provide the basis for the legal claims or the impetus for suit”). Rather, the gravamen of these claims is Union Pacific’s contamination of Houston neighborhoods with creosote and Union Pacific’s failures to communicate regarding the scope and dangers of the contamination. See Sanchez, 614 S.W.3d at 246 (considering the “gravamen of the claim as pleaded” to determine whether the defendant’s communication related to a protected right; “[S]imply alleging conduct that has a communication embedded within it does not create the relationship between the claim and the communication necessary to invoke the TCPA.” (alteration in original) (quoting Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 587 (Tex. App.—Fort Worth 2019, pet. denied))). The alleged joint misrepresentations, i.e., communications, do not “draw an adequate connection to invoke the TCPA under the amended language” for appellees’ claims of negligence, negligence per se, fraudulent concealment, and nuisance. See Union Pacific R.R. Co. v. Chenier, No. 01-21-00073-CV, 2022 WL 547642, at *7 (Tex. App.—Houston [1st Dist.] Feb. 24, 2022, no pet. h.) (affirming denial of Union Pacific’s TCPA motion in similar lawsuit alleging contamination based on creosote and claims for negligence, negligence per se, negligent misrepresentation, fraud, and nuisance).[5] Union Pacific’s issue is overruled regarding appellees’ claims for negligence, negligence per se, fraudulent concealment, and nuisance because Union Pacific failed to demonstrate that these claims are based on or in response to Union Pacific’s exercise of a protected right. Negligent Misrepresentation We assume without deciding that the final challenged claim, negligent misrepresentation, is based on or in response to Union Pacific’s exercise of a protected right. Appellees allege in their petition that Union Pacific’s negligent misrepresentations proximately caused damages. Because appellees seek damages for bodily injury, wrongful death, and survival for their negligent misrepresentation claim, the claim falls squarely within the TCPA’s exception: “This chapter does not apply to . . . a legal action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding that legal action.” Tex. Civ. Prac. & Rem. Code § 27.010(a)(3). Union Pacific appears to argue that a single claim or cause of action like negligence—a “legal action”—can be subdivided under the TCPA into a claim that seeks recovery for bodily injuries and a separate claim that seeks recovery for property damages, and the TCPA exception would not apply to the separate claim seeking recovery of property damages. Union Pacific cites no case treating a claim as such under the TCPA, and we have found none. The plain language of the statute indicates that if the claim seeks recovery for bodily injury, wrongful death, or survival, then the TCPA does not apply—it does not matter that the claim could also result in recovery of damages that arguably fall outside the meaning of “bodily injury.” See Cavin v. Abbott, 545 S.W.3d 47, 57 (Tex. App.—Austin 2017, no pet.) (TCPA did not apply to an assault claim, which sought recovery for “bodily injury” because the claimant sought recovery of medical expenses and compensation for physical pain even though some of the sought-after damages “would arguably fall outside ‘bodily injury’”).[6] Union Pacific’s issue is overruled regarding appellees’ negligent misrepresentation claim because the claim seeks recovery for bodily injury, wrongful death, and survival. Conclusion Union Pacific’s sole issue is overruled. The trial court’s order denying Union Pacific’s motion to dismiss under the TCPA is affirmed. /s/ Ken Wise Justice Panel consists of Justices Wise, Bourliot, and Zimmerer.
