Affirmed and Opinion Filed April 12, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00743-CV
ALEXANDER PERRY AND LABORA REAL ESTATE, INC. F/K/A CES
PROPERTY INVESTMENTS, INC., Appellants
V.
PAUL AND LESLIE GLEISER, STEVE AND TINA GWINN, AND WARD
AND CHERI COPLEY, Appellees
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-19191
MEMORANDUM OPINION
Before Justices Schenck, Pedersen, III, and Molberg
Opinion by Justice Pedersen, III
This is an interlocutory appeal from the trial court’s order denying appellants’
motion to dismiss pursuant to the Texas Citizens Participation Act (the TCPA). The
motion sought to dismiss all of appellees’ claims against appellants Alexander Perry
and Labora Real Estate, Inc. f/k/a CES Property Investments, Inc. (Labora). In two
issues, appellants contend they established that appellees’ claims implicate
appellants’ right of association as that term is understood in the TCPA and that
appellants failed to carry their burden to show a prima facie case of their claims by
clear and convincing evidence. We conclude that appellants’ motion to dismiss was
untimely, and we affirm the trial court’s order on that basis.
Background
Appellees, plaintiffs below, are neighbors and residents of University Park,
Texas. Herschel Hawthorne LLC (Hawthorne) owns a pair of duplexes on the same
street on which appellees live.1 Each side of the two Hawthorne duplexes contains
five bedrooms and bathrooms. Both duplexes are zoned residential and are leased to
students from Southern Methodist University; one resident occupies each room, for
a total of ten residents per duplex.
Appellees sued appellants, Hawthorne, and Thomas A. Hartland-Mackie,2
alleging that leasing to—or otherwise allowing the duplexes to be occupied by—this
total of twenty students violates University Park ordinances that require properties
zoned for residential use to be occupied by a “household.” University Park Zoning
Ordinance § 5.2.6. A city ordinance defines a “household” as any number of
individuals living together as a single housekeeping unit, in which not more than
two individuals are unrelated by blood, marriage or adoption. University Park
Ordinance § 11.11. Appellees allege further, that the conduct of the tenants disturbs
their sleep, creates problems with trash that have invited rodent and insect
1
Hawthorne is a defendant below, but it is not a party to this appeal.
2
Hartland-Mackie is also a defendant below but not a party to this appeal.
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infestations, promotes parking and traffic problems, and interferes with appellees’
peaceful enjoyment of their own properties.
Appellees sued the four defendants on December 30, 2020: Hawthorne
(owner of the properties); Labora (a manager of the properties); Perry (a manager of
Hawthorne and agent of Labora); and Hartland-Mackie (another manager of
Hawthorne). Appellees’ original and first amended petitions referred to the four
collectively, using the defined term “Defendants.” Perry was served with process on
January 11, 2021, and Labora was served on January 13, 2021.
Appellees pleaded claims for nuisance (negligent nuisance, negligence per se,
nuisance per se, and intentional nuisance) and sought damages as well as declaratory
and injunctive relief. Their initial pleadings alleged that the many disturbances that
create the nuisance were proximately caused by the Defendants’ conduct,
specifically “Defendants’ illegal leasing of, or allowing the excessive occupancy of,
the Properties, and the Defendants’ failure to maintain and/or oversee the use of the
Properties by their Tenants.”
Appellants answered the original petition and urged special exceptions. Those
exceptions asserted that the petition: failed to identify which Defendants committed
the violations that the plaintiffs claim gave rise to this lawsuit; did not provide fair
notice of the plaintiffs’ claims or allow the defendants to properly defend against the
claims; did not identify which defendant allegedly violated the section 5.2.6 zoning
ordinance and the various sections of the City Code alleged by the plaintiffs; and the
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capacity in which each of the defendants might allegedly be held liable. The trial
court ordered appellees “[to] amend their First Amended Petition to include
allegations that set forth how liability extends to each of the Defendants named in
this lawsuit.” In response to that order, appellees filed their Second Amended
Petition.
Nine days later—on May 6, 2021—appellants moved to dismiss all of the
defendants’ claims pursuant to the TCPA. The trial court denied the motion. This
appeal followed.
The TCPA Motion to Dismiss
The TCPA is intended “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.” TEX. CIV.
PRAC. & REM. CODE ANN. § 27.002. The statute’s protections are triggered by a
motion to dismiss, which generally cuts off an offending lawsuit early in the
proceeding. See, e.g., In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (TCPA’s
purpose “to identify and summarily dispose of” actions intended to chill First
Amendment rights). To that end, the motion must be filed not later than the sixtieth
day after the date of service of the legal action. CIV. PRAC. & REM. § 27.003(b). It is
undisputed that appellants did not file their motion to dismiss within sixty days of
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being served with the original petition in this case.3 Appellants contend, however,
that the Second Amended Petition, filed in response to appellants’ special
exceptions, constituted a separate legal action under the statute, which re-set the
sixty-day time period for filing a motion to dismiss. We review de novo the trial
court’s ruling on a TCPA motion to dismiss. See Adams v. Starside Custom Builders,
LLC, 547 S.W.3d 890, 894 (Tex. 2018).
The Texas Supreme Court has recently addressed the issue of when an
amended petition qualifies as a new legal action for purposes of section 27.003(b)’s
sixty-day filing window. The court set forth the standard succinctly in a pair of cases,
issued contemporaneously, that state:
We hold that an amended or supplemental pleading that asserts the
same legal claims or theories by and against the same parties and based
on the same essential facts alleged in a prior pleading asserts the same
“legal action” to which the sixty-day period previously applied and thus
does not trigger a new sixty-day period for filing a dismissal motion.
But to the extent an amended or supplemental pleading either (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
involving different elements than the claims or theories previously
asserted, the new pleading asserts a new legal action and triggers a new
sixty-day period as to those new parties, facts, or claims.
Montelongo v. Abrea, 622 S.W.3d 290, 293–94 (Tex. 2021); see also Kinder Morgan
SACROC, LP v. Scurry County, 622 S.W.3d 835, 848 (Tex. 2021) (quoting
Montelongo).
3
Perry’s sixty days expired March12, 2021; Labora’s sixty days expired on March 15, 2021. See CIV.
PRAC. & REM. § 27.003(b).
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Appellants concede that the Second Amended Petition did not add a new party
or assert a new claim. Appellants contend that the Second Amended Petition added
“new essential facts” to support appellees’ previously asserted claims. The supreme
court explained in Montelongo that essential facts, in this context, comprise part of
the cause of action alleged, i.e., they are facts on which liability is based. 622 S.W.3d
at 301. Appellants refer us to two paragraphs in the Second Amended Petition that
allegedly added those new essential facts and brought the case within the TCPA’s
protection for the right of association.4 Other than this general reference, appellants
make three specific allegations. They assert that this pleading is the first in which:
(1) appellees “mention ‘pursuit of’ a ‘common plan’”; (2) appellees identify the title
or corporate status of Perry and Labora; and (3) appellees “stated any fact related to
a specific defendant” besides Hawthorne. We address the specific allegations in turn.
4
Responding to appellees’ charge that the motion was untimely, appellants’ reply brief refers us
generally to “[e]xcerpts of the new allegations” that were quoted in their opening brief. These were the
quoted paragraphs:
a. All Defendants have taken action in pursuit of the common plan to create the
aforementioned college housing within Plaintiffs’ residential neighborhood. Under Texas
law, those who are in pursuit of a common plan or design to commit a tortious act and
actively participate in it or lend aid, cooperation, or encouragement to the wrongdoer are
equally liable therefore. Thus, all Defendants, not just Herschel Hawthorne LLC, are
responsible for causing Plaintiff’s legal injury which results from the Properties excessive
occupancy and Defendants’ misuse of the Properties.
e. Because all Defendants’ participated in, lent aid to, cooperated in, and/or encouraged the
purchase of, mortgage of, construction of, marketing of, management of, and/or leasing of
the Properties, and because all of Defendants’ actions were taken in pursuit of the common
plan or design to bring about the Properties’ excessive occupancy and misuse, all
Defendants are equally liable for the legal injury suffered by Plaintiffs as a result of the
Properties[’] excessive occupancy and misuse.
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(1) Appellants seize on the language of a “common plan” as if it were a per se
statement of the concept of association as that term is intended in the TCPA. But the
language of the Second Amended Petition has its roots not in constitutional
protections, but in concert of action, a theory of joint tort liability:
All those who, in pursuance of a common plan or design to commit
a tortious act, actively take part in it, or further it by cooperation or
request, or who lend aid or encouragement to the wrongdoer, or ratify
and adopt the wrongdoer’s acts done for their benefit, are equally
liable.
Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996) (quoting W. PAGE KEETON, ET
AL., PROSSER AND KEETON ON THE LAW OF TORTS § 46, 323 (5th ed.1984)); see also
III Forks Real Estate, L.P. v. Cohen, 228 S.W.3d 810, 815 (Tex. App.—Dallas 2007,
no pet.). The Second Amended Petition was not the first time appellees alleged that
the four defendants took part together in the actions alleged to be the nuisance. On
the most basic level, Perry and Labora were sued along with Hawthorne and
Hartland-Mackie. All four were referred to as “Defendants” in the original petition,
and in both the fact and cause-of-action sections of the pleading, the activities were
attributed to all four parties through the use of that defined term. As to how the
Defendants acted together, the original petition alleged that:
The aforesaid disturbances which create the nuisance complained of are
proximately caused by Defendants’ intentional and/or negligent
conduct, specifically Defendants’ illegal leasing of, or allowing the
excessive occupancy of, the Properties, and the Defendants’ failure to
maintain and/or oversee the use of the Properties by their Tenants.
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The Second Amended Petition does not alter these fundamental allegations in
any way. Appellees’ consistent theory of the case has been that appellants have
created a nuisance by designing and over-leasing housing that violates a city
ordinance and then failing to oversee their tenants’ harmful behavior. We have stated
that filing an amended petition that does not alter the essential nature of an action
will not reset the sixty-day deadline. Interest of C.T.H., 617 S.W.3d 57, 61–62 (Tex.
App.—Dallas 2020, no pet.); Luxottica of Am. Inc. v. Gray, No. 05-19-01013-CV,
2020 WL 7040980, at *5 (Tex. App.—Dallas Dec. 1, 2020, no pet.) (mem. op.). The
Second Amended Petition’s allegation of a “common plan” did not alter the essential
nature of appellees’ nuisance action.
(2) Appellants assert that the Second Amended Petition is the first time that
appellees identify Perry as a manager of Hawthorne and Labora as a former member
of Hawthorne. Appellants’ personal or corporate titles were neither new information
to appellants nor essential factual allegations. Such identifications were no more than
additional detail concerning the status of existing parties. “[A]n amended petition
that merely adds details to prior alleged facts does not restart the clock if the same
essential factual allegations supporting the claim were present in an earlier petition.”
Luxottica, 2020 WL 7040980, at *5.
(3) Finally, appellants complain that the Second Amended Petition for the first
time “stated any fact related to a specific defendant other than [Hawthorne].” As to
appellant Perry, the Second Amended Petition identifies him as a manager and
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alleges that—in that role—he was involved in purchasing, mortgaging, constructing,
marketing, leasing, and managing the Properties, doing so “for the specific purpose
of leasing the Properties, or allowing the Properties to be occupied and misused, in
the excessive manner which causes the Plaintiffs’ legal injury.” Similarly, the
Second Amended Petition identifies Labora as a member of Hawthorne and asserts
that—while serving in that role—it executed the Deeds of Trust that secured
repayment of the funds loaned to construct the Properties, doing so “for the specific
purpose of leasing the Properties, or allowing the Properties to be occupied, in the
excessive manner which causes the Plaintiffs’ legal injury.” These details
concerning the corporate role of the appellees 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 an action and re-start the TCPA’s sixty-day time period.
See Mancilla v. Taxfree Shopping, Ltd, No. 05-18-00136-CV, 2018 WL 6850951, at
*3 (Tex. App.—Dallas Nov. 16, 2018, no pet.) (mem. op.).
We conclude that none of the facts identified by appellants can be
characterized as new essential factual allegations within the Second Amended
Petition. An amended pleading does not assert a new legal action if it asserts the
same causes of action against the same parties based on the same essential factual
allegations. See Montelongo, 622 S.W.3d at 296. By attempting to add more
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specificity to their factual allegations—as appellants demanded in their special
exceptions—appellees did not plead a new legal action that would re-start the
TCPA’s sixty-day deadline for filing a motion to dismiss.5
We conclude that appellants’ motion to dismiss was untimely.6 The trial court
did not err in denying appellant’s motion to dismiss.
Conclusion
We affirm the trial court’s order.
210743f.p05 /Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE
5
We note that our conclusion today is supported by the breadth of the remedy sought by appellants in
their motion to dismiss, i.e., the dismissal of all claims against them. The Texas Supreme Court made clear
that if an amended pleading adds new essential facts, then the pleading triggers a new sixty-day period to
move for dismissal as to those new facts. Montelongo, 622 S.W.3d at 293–94. By seeking dismissal of all
of appellees’ claims, appellants essentially acknowledge that any details or specifications added in the
Second Amended Petition speak to the same factual basis urged for the claims originally pleaded.
6
Given this conclusion, we need not address whether the lawsuit implicates the right of association or
whether appellees established a prima facie case of their claims by clear and specific evidence.
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ALEXANDER PERRY AND On Appeal from the 44th Judicial
LABORA REAL ESTATE, INC. District Court, Dallas County, Texas
F/K/A CES PROPERTY Trial Court Cause No. DC-20-19191.
INVESTMENTS, INC., Appellants Opinion delivered by Justice
Pedersen, III. Justices Schenck and
No. 05-21-00743-CV V. Molberg participating.
PAUL AND LESLIE GLEISER,
STEVE AND TINA GWINN, AND
WARD AND CHERI COPLEY,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees Paul and Leslie Gleiser, Steve and Tina
Gwinn, and Ward and Cheri Copley recover their costs of this appeal from
appellants Alexander Perry and Labora Real Estate, Inc. f/k/a Ces Property
Investments, Inc.
Judgment entered this 12th day of April, 2022.
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