Union Pacific Railroad Company v. Anna Dorsey ( 2022 )

Motion for Rehearing Denied; Affirmed in Part, Reversed in Part, and
Remanded; and Substitute Opinion filed August 4, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00308-CV
UNION PACIFIC RAILROAD COMPANY, Appellant
V.
ANNA DORSEY, Individually and as Representative of the Estates of
GLORIA MOORE (Deceased) and SAM MOORE, Jr. (Deceased), BETTY
HORACE, Individually and as Representative of the Estate of THOMAS
HORACE (Deceased), PATRICK HORACE, KRISTEN GILMORE,
Individually and as Representative of the Estate of JODIE ARCHIE
(Deceased), KRISHONDE ALLEN, ESTELLA AMES, DEBRA AMMONS,
EDWIN AMOS, GLORIA BAPTISTE, ALTON BERRY, JIMMY BOOKER,
ROBERT BOOKER, BRENDA BRANCH, JOHNTER BRANTLEY,
DOROTHY BROOKS, HILLMAN CALVIN, IVIA CLAY, BENJAMIN
COOKESY, WILLIAM COOKSKY, DIANNA CORMIER JACKSON,
AUTREA DAVIS, KAREN DICKEY, MERVE EUELL, PHYLLIS FARR,
ROY FITZPATRICK, MOZELLE FLANNIGAN, KATHY GABRIEL,
JIMMY GALENTINE, JOEL GREEN, ADELL GUILLORY, LESTER
HARRIS, WILLIE HARRIS, KERRY LYNN HASKETT, RICHARD
HENRY, CARMELITA HIGGINS, LATINA HILL, HAROLD HORACE,
HERBERT HORACE, TAMARA JACKSON, JAMES JOHNSON, RONNIE
JOHNSON, KATHERINE JONES, DANNY LEWIS, HARRY DEAN
LEWIS, LORENNIA LINDSEY, ELIZABETH NICKELS, IDA OBRIEN,
ROBERT PALMER, SEPERIA PRESTON, RUBY REYNOLDS, BARRY
RHODES, ALLEN RICHARDSON, DONNA RICHARDSON, DWIGHT
RICHARDSON, JOHNNY RISTON, RODNEY RUSHING, DAVID RYAN,
LISA SAMUEL, ANDREA SHIELDS, SONYA SMITH, HATTIE SWINT,
RODNEY THOMAS, SHERRY THOMAS, GERALD TURNER, LARRY
TURNER, SHIRLEY LEWIS VALLIER, DALE VANWRIGHT, ELNORA
VICTOR, JESSE VICTOR, CHANTA VISTON, LAWRENCE WALKER,
JOHN WALKER, OPAL WALKER, RENEE WALKER, LOU PRICE-
WALKER, CONNIE WALTON, LADETRIA WESLEY, EDITH WILBURN,
SANFORD WILLIAMS, TANYA WOOTEN, BOBBY WORTHY,
PATRICIA WORTHY, and JAMES YOUNG, Appellees
On Appeal from the 281st District Court
Harris County, Texas
Trial Court Cause No. 2020-07396
SUBSTITUTE OPINION
We deny appellees’ motion for rehearing, withdraw our prior opinion dated
June 2, 2022, and issue this substitute opinion in its stead.
Appellees sued Union Pacific for claims related to 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 in part, reverse in part, and remand for further proceedings.
I. 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
1
See Tex. Civ. Prac. & Rem. Code ch. 27; see also In re Lipsky, 460 S.W.3d 579, 584 &
n.1 (Tex. 2015).
2
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).
2
We recite the statutory definitions upon which Union Pacific relies.
3
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.). As relevant here, a “matter of public concern” means a statement
or activity regarding “a matter of political, social, or other interest to the
community” or “a subject of concern to the public.” Tex. Civ. Prac. & Rem. Code
§ 27.001(7).
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, 640 S.W.3d 323, 326 (Tex. App.—Houston [14th
Dist.] 2022, pet. filed). 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
4
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.). When courts are unable to identify a means to determine
which claims are in response to protected rather than unprotected communications,
a trial court does not err by denying the motion. Id. at *4–5 (affirming denial when
this court could “not see a practicable way to parse out the degree to which” the
claims were based on protected rather than unprotected communications).
II. 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. As Union
Pacific notes in its motion for rehearing, and appellees do not dispute, appellees
3
Union Pacific notes that “fraudulent concealment” is not a recognized claim in Texas
but an affirmative defense to a statute of limitations. Appellees contend that their “concealment”
claim is one for fraud by nondisclosure, and we agree. See Flowers v. ZBR Holdings, LLC,
No. 05-16-00345-CV, 2017 WL 3484542, at *1 n.1 (Tex. App.—Dallas Aug. 15, 2017, no pet.)
(mem. op.) (“Appellees called the last claim ‘Concealment,’ but courts usually call this claim
fraud by nondisclosure.”); Brocail v. Detroit Tigers, Inc., 268 S.W.3d 90, 110 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied) (applying Michigan law, noting that “[f]raudulent
concealment [is] also known as fraud by nondisclosure”); Kawecki v. Int’l Bank of Commerce,
No. 14-01-01025-CV, 2003 WL 21782345, at *1 n.3 (Tex. App.—Houston [14th Dist.] July 31,
2003, no pet.) (mem. op.) (treating the plaintiffs’ “fraudulent concealment claim as one for
fraudulent nondisclosure”).
5
allege in their petition that some of them suffered both “property damage and
cancer” while thirteen appellees suffered only “property damage.”4
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,[5]
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:
1. Failing to warn of the health hazards associated with creosote
and toxic chemicals used, stored and dumped at or near the
Engelwood Rail Yard;
2. Failing to safely use, store and dump creosote and toxic
chemicals known to be hazardous to human health;
The following appellees allege only “property damage”: Edwin Amos, Gloria Baptiste,
4
Alton Berry, Robert Booker, William Cooksky, Karen Dickey, Phyllis Farr, Ronnie Johnson,
Ruby Reynolds, Barry Rhodes, Hattie Swint, Dale Vanwright, and Jesse Victor.
DNAPL is “an underground plume of creosote sludge known as a dense non-aqueous
5
phase liquid.”
6
3. 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;
4. 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;
5. Failing to notify Plaintiffs of air, soil and water contamination
caused by creosote and toxic chemicals known to be hazardous
to human health;
6. 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;
7. 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;
8. 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;
9. Failing to protect Plaintiffs and the general public from the
harmful effects of exposure to creosote and toxic chemicals;
10. Failing to prevent creosote and toxic chemicals from
permeating ground water and creating a creosote NAPL beneath
residential properties;
11. Failing to take timely and reasonable steps to contain the
creosote NAPL and mitigate the risks to human health posed by
the creosote NAPL;
12. 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;
13. Failing to obtain reliable or adequate meteorological and
geological surveys to ensure creosote and toxic chemicals
would not contaminate air, soil and water;
14. 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
7
15. 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 “communicating the information to governmental agencies and
Plaintiffs,” nor “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
8
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.
III. 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.
A. 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
9
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, 2022 WL 1037757, at *4 (Tex. App.—
Houston [1st Dist.] Apr. 7, 2022, no pet. h.) (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 global allegation of joint
10
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, pet. denied) (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).6
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.
B. Negligent Misrepresentation
A claim for negligent misrepresentation includes as an element that the
defendant made a “representation” that conveyed false information. See
JPMorgan Chase Bank, N.A. v. Orca Assets G.P., 546 S.W.3d 648, 653 (Tex.
2018). According to their petition, appellees’ negligent misrepresentation claim is
based on or in response to Union Pacific’s communications, i.e., making
“representations to governmental agencies and Plaintiffs” and “communicating the
information to governmental agencies and Plaintiffs.” These communications
were made in connection with a matter of public concern—“regarding the nature of
6
The TCPA was amended in 2019 to narrow the categories of connections a claim could
have to the exercise of a protected right in order for a defendant to obtain a dismissal. See
generally ML Dev., LP, 2022 WL 1037757, at *2–3 (discussing removal of the phrase “relates
to” from the prior version of the TCPA that allowed dismissal if the movant proved that the
claim was “based on, relates to, or is in response to” the movant’s exercise of a protected right).
The amendment “removed the broadest category of connection, thereby requiring future TCPA
movants to establish a closer nexus between the claims against them and the communications
they point to as their exercise of protected rights.” Id. at *5.
11
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.” See ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 901 (Tex. 2017) (matter of public concern under prior statutory
definition included statements related to employee’s failure to complete process
that would “reduce the potential environmental, health, safety, and economic risks
associated with noxious and flammable chemicals overfilling and spilling onto the
ground”); In re Lipsky, 411 S.W.3d 530, 542–43 (Tex. App.—Fort Worth 2013,
orig. proceeding) (matter of public concern under prior statutory definition
included statements about the environmental effects of fracking and the cause of
contamination of a well), mand. denied, 460 S.W.3d 579 (Tex. 2015); see also
Gibson v. Office of Atty. Gen., State of Cal., 561 F.3d 920, 925–26 (9th Cir. 2009)
(matter of public concern included statements about “discharges of raw sewage
into the environment and exposure of public employees to dangerous
contaminants”); Hometown Props., Inc. v. Fleming, 680 A.2d 56, 64 (R.I. 1996)
(matter of public concern included statements about “potential environmental
contamination”).7
Accordingly, the negligent misrepresentation claim is based on or in
response to Union Pacific’s exercise of the right of free speech. Appellees contend
that their negligent misrepresentation claim is based on both protected and
unprotected activity because their claim involves a “failure to disclose
information.” Regarding the negligent misrepresentation claim, the petition does
not allege a failure to disclose or communicate, but rather a failure to use
7
The TCPA was amended in 2019 to alter the definition of “matter of public concern” so
that it more closely tracks the meaning used in First Amendment jurisprudence. See Tex. Civ.
Prac. & Rem. Code § 27.001(7)(B). Compare Act of June 17, 2011, 82nd Leg., R.S., ch. 341,
§ 1, 2011 Tex. Gen. Laws 961, with Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017).
12
“reasonable care” while disclosing. This claim is not based on a “failure to warn.”
Cf. See Chenier, 2022 WL 547642, at *6.
Appellees contend further that damages to their real properties “simply do
not logically occur as a result of a ‘misrepresentation.’” They cite no authority for
the contention, and we have found none. See Fed. Land Bank Ass’n of Tyler v.
Sloane, 825 S.W.2d 439, 442 (Tex. 1991) (damages recoverable for negligent
misrepresentation include “pecuniary loss suffered otherwise as a consequence of
the plaintiff’s reliance upon the misrepresentation” (quoting Restatement (Second)
of Torts § 552B)). Appellees allege broadly in their petition that Union Pacific’s
negligent misrepresentations “proximately caused Plaintiffs’ damages.” Although
we view the petition in the light most favorable to the appellees, they made no
attempt to limit their negligent misrepresentation claim to only non-property
damages.
Appellees do not contend that they have met their burden to demonstrate by
clear and specific evidence a prima facie case for each essential element of the
claim. But, their arguments to the trial court and this court raise several exceptions
to the TCPA: the fraud exception and the bodily-injury exception.
1. Fraud Exception
The TCPA provides, “This chapter does not apply to: . . . a legal action
based on a common law fraud claim.” Tex. Civ. Prac. & Rem. Code
§ 27.010(a)(12). A claim is “based on” common law fraud if the claim “require[s]
proof of common law fraud as part of [its] elements.” Baylor Scott & White v.
Project Rose MSO, LLC, 633 S.W.3d 263, 281–83, 288 (Tex. App.—Tyler 2021,
pet. denied) (holding that claims for unjust enrichment, civil conspiracy, and aiding
and abetting breach of fiduciary duty were exempt under the fraud exception as
pleaded, but claims for tortious interference with contract, promissory estoppel,
13
quantum meruit, money had and received, and declaratory judgment were not
exempt).
Although a claim for negligent misrepresentation is similar to fraud, they are
not the same. Fraud is more difficult to prove than negligent misrepresentation
because of the added element of intent. Grant Thornton LLP v. Prospect High
Income Fund, 314 S.W.3d 913, 921 (Tex. 2010); see also N. Cypress Med. Ctr.
Operating Co. v. Aetna Life Ins. Co., 898 F.3d 461, 474 (5th Cir. 2018) (applying
Texas law, “The primary difference between fraud and negligent misrepresentation
is that a negligent misrepresentation does not require an actual intent to defraud,
only that . . . the party making the false statement acted negligently in doing so.”
(omission in original, quotations omitted)). “Negligent misrepresentation is
properly identified as being a claim sounding in negligence rather than fraud.”
Milestone Props., Inc. v. Federated Metals Corp., 867 S.W.2d 113, 119 (Tex.
App.—Austin 1993, no writ) (quoting Tex. Am. Corp. v. Woodbridge Joint
Venture, 809 S.W.2d 299, 303 (Tex. App.—Fort Worth 1991, writ denied)
(applying two-year rather than four-year limitations period to negligent
misrepresentation).8
Thus, a claim for negligent misrepresentation does not require proof of
common law fraud as part of its elements. Appellees allege in their petition that
Union Pacific failed to use reasonable care in their communications, not that Union
Pacific did so knowingly or recklessly. As pleaded, appellees’ negligent
misrepresentation claim is not exempt from the TCPA under the fraud exception.
8
Appellee’s reliance on the stray reference in Rosenthal v. Blum, 529 S.W.2d 102, 104
(Tex. App.—Waco 1975, writ ref’d n.r.e.), that negligent misrepresentation “constitutes a specie
of remedial fraud,” is neither persuasive nor controlling on the issue in this case. See id. at 102,
104–05 (recognizing that negligent misrepresentation is a cause of action, noting that “scienter is
not an element,” and reversing the trial court’s dismissal for failure to state a claim).
14
2. Bodily-Injury Exception
Appellees allege in their petition that Union Pacific’s negligent
misrepresentations proximately caused damages. Because some of the 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’”).9
9
We note that a claim for negligent misrepresentation may allow recovery for physical
harm, see D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 664 (Tex. 1998), and this
case does not involve artful pleading in an attempt to circumvent the TCPA, see Reeves v.
Harbor Am. Cent., Inc., 631 S.W.3d 299, 303 n.2 (Tex. App.—Houston [14th Dist.] 2020, pet.
denied).
15
However, Union Pacific notes that thirteen of the appellees allege claims
only for property damages and not personal injuries. See supra note 4. Appellees
do not dispute this contention but instead suggest that the exception should be
applied to the entire lawsuit because some of the appellees seek damages for bodily
injury or wrongful death. Contrary to appellees’ argument, “dismissal under the
TCPA is determined not by the action as a whole but 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.). Thus, thirteen
of the appellees cannot show that the bodily-injury exception applies to their
negligent misrepresentation claim.
Because thirteen of the appellees failed to meet their burden under the
TCPA, the trial court erred by not dismissing their negligent misrepresentation
claim.
C. Discovery
Appellees note that they asked the trial court to continue the hearing on
Union Pacific’s motion to dismiss and permit limited discovery. Appellees ask this
court to “order [the trial court] to rule on Appellees’ request for continuance and
limited discovery.” However, the trial court already ruled; the court denied the
request. Appellees do not argue that the trial court abused its discretion in doing
so. Thus, appellees have not shown error.
IV. CONCLUSION
Having sustained Union Pacific’s issue in part, we reverse the part of the
trial court’s order denying Union Pacific’s motion to dismiss the negligent
misrepresentation claim alleged by the following appellees: Edwin Amos, Gloria
Baptiste, Alton Berry, Robert Booker, William Cooksky, Karen Dickey, Phyllis
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Farr, Ronnie Johnson, Ruby Reynolds, Barry Rhodes, Hattie Swint, Dale
Vanwright, and Jesse Victor.
The remainder of the trial court’s order is affirmed. We remand the case for
proceedings consistent with this opinion. See Cox Media Grp., LLC v. Joselevitz,
524 S.W.3d 850, 865 (Tex. App.—Houston [14th Dist.] 2017, no pet.); see also
Tex. Civ. Prac. & Rem. Code § 27.009(a).
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Bourliot, and Zimmerer.
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