Jetall Companies, Inc. v. JPG Waco Heritage LLC

IN THE
TENTH COURT OF APPEALS

No. 10-21-00135-CV

JETALL COMPANIES, INC.,
Appellant
v.

JPG WACO HERITAGE LLC,
Appellee

From the 74th District Court
McLennan County, Texas
Trial Court No. 2019-4557-3

OPINION

Appellant, Jetall Companies, Inc. (“Jetall”), filed a motion, under the Texas

Citizens Participation Act (“TCPA”), to dismiss counterclaims filed by appellee, JPG

Waco Heritage, LLC (“JPG”). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.010. After

a hearing, the trial court failed to rule on the motion within thirty days, and the motion

was denied by operation of law. In one issue, Jetall contends that the denial of its TCPA

motion to dismiss was in error. We affirm.
 Background

This dispute arose from a purported agreement under which JPG allegedly

contracted to sell to Jetall real property located at 215 Washington Avenue in Waco,

Texas. See, e.g., Jetall Cos., Inc. v. JPG Waco Heritage, LLC, No. 07-20-00126-CV, 2020 Tex.

App. LEXIS 4860, at *1 (Tex. App.—Amarillo June 30, 2020, pet. denied) (mem. op.). Jetall

later learned that JPG intended to sell the property to a third party. Id. Based on this

information, Jetall filed a notice of lis pendens. Id. The trial court expunged the lis

pendens and temporarily enjoined Jetall, Ali Choudhri, and those entities they own and

control from filing additional notices of lis pendens.1 Id.

Jetall then filed suit against JPG, alleging breach-of-contract, fraud, and

fraudulent-inducement claims. JPG counterclaimed, asserting claims for tortious

interference with an existing contract and a fraudulent lien based, in part, on Jetall’s filing

of an October 10, 2019 notice of lis pendens. JPG specifically alleged that Jetall’s October

10, 2019 notice of lis pendens caused the termination of a pending sale of the property for

$8 million and resulted in JPG having to pay the third-party buyer $40,000 for failing to

close the sale of the property due to Jetall’s tortious interference.

Thereafter, Jetall filed a motion to compel arbitration, which the trial court denied.

Jetall appealed. The Seventh Court of Appeals modified the temporary injunction

1 Ali Choudhri wholly owns and controls Jetall Companies, Inc.

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 2
granted in favor of JPG and affirmed both the modified temporary injunction and the

order denying arbitration.2 Id. at *6.

After the Seventh Court of Appeals issued its opinion, JPG amended its

counterclaims twice, with the second amendment being filed on September 9, 2020. In its

third amended counterclaim, JPG alleged additional facts in support of its claims for

tortious interference with an existing contract and a fraudulent lien, including allegations

that Jetall had filed four notices of lis pendens in an attempt to prevent the property from

being sold.

Jetall answered JPG’s amended counterclaims and asserted a privilege and

immunity affirmative defense. In addition, as relevant to this case, Jetall filed a TCPA

motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a) (“If a legal action is

based on or is in response to a party’s exercise of the right of free speech, right to petition,

or right of association or arises from any act of that party in furtherance of the party’s

communication or conduct described by Section 27.010(b), that party may file a motion

to dismiss the legal action.”). JPG filed a response to Jetall’s TCPA motion to dismiss,

attaching numerous exhibits to the response.

The trial court conducted a hearing on Jetall’s TCPA motion to dismiss. However,

the trial court did not issue a ruling on the motion to dismiss within thirty days of the

2 The Texas Supreme Court denied Jetall’s petition for review of the Seventh Court of Appeals’s
decision. See, e.g., Jetall Cos. v. JPG Waco Heritage, LLC, 20-0785, 2021 Tex. LEXIS 192 (Tex. Mar. 5, 2021).

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 3
hearing date. See id. 27.005(a) (“The court must rule on a motion under Section 27.003 not

later than the 30th day following the date the hearing on the motion concludes.”).

Because the trial court did not issue a ruling within thirty days of the hearing date,

pursuant to section 27.008 of the Texas Civil Practice and Remedies Code, Jetall’s TCPA

motion to dismiss was denied by operation of law, and Jetall is entitled to appeal the

denial of the motion. See id. § 27.008(a) (“If a court does not rule on a motion to dismiss

under Section 27.003 in the time prescribed by Section 27.005, the motion is considered to

have been denied by operation of law and the moving party may appeal.”).

Timeliness of Jetall’s TCPA Motion to Dismiss

In its sole issue on appeal, Jetall complains that the trial court erred by denying its

TCPA motion to dismiss. Specifically, Jetall contends that: (1) the TCPA motion to

dismiss was timely filed and heard within the statutory time frame; (2) the TCPA applies

to tortious-interference-with-a-contract claims based on a notice of lis pendens; and (3)

the notice of lis pendens cannot give rise to a tortious-interference-with-contract claim as

a matter of law. We first address the timeliness of Jetall’s TCPA motion to dismiss.

STANDARD OF REVIEW

We review de novo a trial court’s denial of a motion to dismiss under the TCPA.

Schmidt v. Crawford, 584 S.W.3d 640, 646-47 (Tex. App.—Houston [1st Dist.] 2019, no pet.)

(citing Holcomb v. Waller County, 546 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.]

2018, pet. denied)); see Johnson-Todd v. Morgan, 480 S.W.3d 605, 609 (Tex. App.—

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 4
Beaumont 2015, pet. denied). In reviewing the trial court’s ruling, we consider the

pleadings and the evidence the trial court considered at the time the ruling occurred. TEX.

CIV. PRAC. & REM. CODE ANN. § 27.006(a); see In re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015).

DISCUSSION

On appeal, Jetall argues that its TCPA motion to dismiss was timely filed because

the deadline to file the TCPA motion to dismiss was extended by JPG’s filing of its second

and third amended original answer and counterclaims. See TEX. CIV. PRAC. & REM. CODE

ANN. § 27.003(b) (“A motion to dismiss a legal action under this section must be filed not

later than the 60th day after the date of service of the legal action.”).

The Texas Supreme Court has stated the following regarding the TCPA and the

Act’s timeliness requirements:

The TCPA was designed to protect both a defendant’s rights of
speech, petition, and association and a claimant’s right to pursue valid legal
claims for injuries the defendant caused. To accomplish this objective, the
Act provides a three-step process for the dismissal of a legal action to which
it applies. First, the defendant must demonstrate that the legal action is
“based on or is in response to” the defendant’s exercise of the right of
speech, petition, or association. Second, if the defendant meets that 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. Finally, if the claimant meets that burden, the court still must
dismiss the legal action if the defendant establishes an affirmative defense
or other grounds on which the moving party is entitled to judgment as a
matter of law.

In deciding whether a legal action should be dismissed, the trial
court must consider the pleadings and evidence . . . stating the facts on
which the liability or defense is based. For each step, the Act provides

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 5
 specific procedures and deadlines for filing, responding to, hearing, ruling
on, and appealing the dismissal motion.

The dismissal motion itself must be filed not later than the 60th day
after the date of service of the legal action. The Act expressly defines a legal
action to mean 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. As we recently observed, this definition is
undeniably broad and encompasses any procedural vehicle for the
vindication of a legal claim.

Montelongo v. Abrea, 622 S.W.3d 290, 295-96 (Tex. 2021) (internal citations & quotations

omitted).

The Montelongo Court further noted:

Although we have not previously addressed this issue, Texas courts of
appeals have addressed it in numerous cases. The courts have consistently
agreed that an amended or supplemental pleading does not constitute or
assert a new legal action if it asserts the same legal claims or causes of action
by and against the same parties based on the same essential factual
allegations. If, however the new pleading adds a new party as a claimant
or defendant, the courts have agreed that the pleading asserts a new legal
action and starts a new sixty-day period to file a dismissal motion, but only
as to the claims asserted by or against the new party. And the courts have
also consistently agreed that an amended pleading constitutes or asserts a
new legal action if it includes new essential factual allegations that were not
included in the prior pleading, allowing a new sixty-day period to seek
dismissal of claims to the extent they are based on those new factual
allegations.

We agree with these holdings. . . .

We agree, of course, that an amended petition, pleading, or filing is
a petition, pleading, or filing, and in that sense, we conclude that every
amended or supplemental petition falls within the broad definition of a
legal action. But we cannot agree that the claimant’s service of any
amended or supplemental petition, pleading, or filing triggers a new sixty-
day period for filing a dismissal motion. We cannot construe the Act to
Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 6
 grant a new deadline for legal actions that have previously been served,
because doing so would render the Act’s deadlines meaningless . . . .
Construing the Act to permit a defendant to file a dismissal motion after the
claimant files a new pleading asserting the same claims by and against the
same parties and based on the same essential facts would negate the sixty-
day deadline completely.

. . . Although an amended petition that adds no new parties, claims,
or essential factual allegations is, of course, a petition that asserts a cause of
action and constitutes a pleading or filing that requests relief, it merely
reasserts the same legal action to which the deadline has already applied.
We agree with the courts that have held that such an amended petition
constitutes and asserts only the same legal action to which the deadline has
already applied, and thus does not trigger a new sixty-day period for filing
a dismissal motion.

We also agree with the courts that have held that an amended or
supplemental petition that adds new parties or new essential factual
allegations does assert a new legal action and starts a new sixty-day period
as to the new parties and the claims based on the new factual allegations.
Like an amended petition that involves the same claims, parties, and factual
allegations, an amended petition that includes new parties or new essential
factual allegations is a petition and a pleading or filing that requests . . .
relief, and thus qualifies as a legal action, but it is not the same legal action
to which the deadline has already applied.

Id. at 297-99 (internal citations & quotations omitted).

As relevant here, JPG filed its first amended original answer and counterclaims on

November 14, 2019. In this filing, JPG asserted that Jetall tortiously interfered with an

existing contract to sell the property in question by “contacting the third-party buyer

directly and threatening the third-party buyer with legal action and financial harm

should they continue with the purchase of the Property.” JPG also argued that Jetall and

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 7
Choudhri’s notice of lis pendens constituted a fraudulent lien designed “for the specific

purpose of stopping the sale of the Property and causing JPG financial [h]arm.”

As stated above, JPG later filed a second and third amended original answer and

counterclaims against Jetall. The third amended original answer and counterclaim, in

particular, was filed on September 9, 2020, and asserted the same two causes of action—

tortious interference with an existing contract and a fraudulent lien—as the first amended

original answer and counterclaims with additional facts supporting the causes of action,

including references to four notices of lis pendens filed by Jetall and Choudhri involving

the property and Jetall’s purported violation of a temporary injunction entered by the

trial court.

Jetall contends that the addition of new facts in the third amended original answer

and counterclaims constitutes a new legal action that restarts the sixty-day period for

filing a TCPA dismissal motion. We disagree.

JPG’s third amended original answer and counterclaims did not assert new claims

or new parties. Further, the first amended original answer and counterclaims and the

third amended original answer and counterclaims allege essentially the same facts and

do not change the essential nature of the action—that Jetall and Choudhri engaged in

acts, including the filing of alleged fraudulent notices of lis pendens, designed to thwart

the purchase of the property in question by a third-party buyer. See id. at 297-99; TV

Azteca, S.A.B. de C.V. v. Ruiz, 611 S.W.3d 24, 31 (Tex. App.—Corpus Christi 2020, no pet.)

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 8
(holding that an amended petition that added “additional information” to fourteen

previously alleged defamatory statements did not assert “new factual allegations so as to

restart the clock on appellants’ TCPA motion to dismiss deadline”); Jordan v. Hall, 510

S.W.3d 194, 198 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (“Although an amended

petition asserting claims based upon new factual allegations may reset a TCPA deadline

as to the newly-added substance, the deadline for a TCPA motion is not reset when a

plaintiff files an amended petition that adds no new claims and relies upon the same

factual allegations underlying an original petition.” (internal citations omitted)); In re

Estate of Check, 438 S.W.3d 829, 837 (Tex. App.—San Antonio 2014, no pet.) (holding that

an amended counterpetition that did not add new claims or parties provided “neither a

basis nor a compelling reason to reset the original sixty-day deadline”); see also Borderline

Mgmt., LLC v. Ruff, No. 11-19-00152-CV, 2020 Tex. App. LEXIS 1940, at **22-23 (Tex.

App.—Eastland Mar. 5, 2020, pet. denied) (mem. op.) (holding that an amended petition

did not start a new sixty-day period because its “factual allegations . . . essentially

remain[ed] the same,” and it did not allege a “new claim” or make “substantively new

factual allegations that changed the essential nature of the claims”); Mancilla v. Taxfree

Shopping, Ltd., No. 05-18-00136-CV, 2018 Tex. App. LEXIS 9371, at **8-10 (Tex. App.—

Dallas Nov. 16, 2018, no pet.) (mem. op.) (holding an amended petition asserting new

claims based on new factual allegations did not trigger a new sixty-day period because

the new factual allegations did not change “the essential nature” of the action).

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 9
 Further, the third amended original answer and counterclaims merely provides

more detail and recounts additional notices of lis pendens filed by Jetall and Choudhri

seeking to achieve the same goal of thwarting the potential sale. The reference to

additional notices of lis pendens did not, and could not, change the nature or amount of

the remedy and is simply an allegation of facts of the same nature as previously alleged

that would support the same theory and amount of recovery. See Stewart Title Guar. Co.

v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991) (“The one satisfaction rule applies to prevent a

plaintiff from obtaining more than one recovery for the same injury.”); Brewer & Pritchard,

P.C. v. AMKO Res. Int’l, LLC, No. 14-13-00113-CV, 2014 Tex. App. LEXIS 7627, at **15-17

(Tex. App.—Houston [14th Dist.] July 15, 2014, no pet.) (mem. op.) (noting that one-

satisfaction rule applies when multiple tortious interferences with an existing contract

result in a single injury). As such, we conclude that the third original answer and

counterclaims constitutes the same legal action as the first original answer and

counterclaims for purposes of the TCPA. See Montelongo, 622 S.W.3d at 297-99. Thus, the

filing of the second or the third amended original answer and counterclaims did not

trigger a new sixty-day period for filing a TCPA motion to dismiss. Id. at 297-99.

Because JPG’s first and third amended original answer and counterclaims

constitute the same legal action, and because the filing of the second and third amended

original answer and counterclaims did not trigger a new sixty-day period for filing a

TCPA motion to dismiss, we use the filing date of the first amended original answer and

Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 10
counterclaims to measure the timeliness of Jetall’s TCPA motion to dismiss. As

mentioned previously, JPG filed its first original answer and counterclaims on November

14, 2019. The record reflects that Jetall did not file its TCPA motion to dismiss until

September 23, 2020—approximately ten months after JPG filed its first amended original

answer and counterclaim. Because Jetall did not file its TCPA motion to dismiss within

sixty days of November 14, 2019, see TEX. CIV. PRAC. & REM. CODE ANN. § 27.003, we

conclude that it was not error for Jetall’s TCPA motion to dismiss to be denied by

operation of law. See Schmidt, 584 S.W.3d at 646-47; see also Johnson-Todd, 480 S.W.3d at

609. Accordingly, because Jetall’s remaining arguments in this issue are all premised on

a finding that its TCPA motion to dismiss was timely filed, we overrule Jetall’s sole issue

on appeal.

Conclusion

We affirm the ruling by operation of law that denied Jetall’s TCPA motion to

dismiss.

STEVE SMITH
Justice

Before Chief Justice Gray,
Justice Johnson,
and Justice Smith
Affirmed
Opinion delivered and filed December 1, 2021
Publish
[CV06]

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