Affirmed and Opinion filed March 31, 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, 
2

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 PRICEWALKER, 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

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.

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 

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 

1

See Tex. Civ. Prac. & Rem. Code ch. 27; see also In re Lipsky, 460 S.W.3d 579, 584 & 

n.1 (Tex. 2015).
3

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 

2 We recite the statutory definitions upon which Union Pacific relies.
4

“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.).
5

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.

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 

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”). 

4 DNAPL is “an underground plume of creosote sludge known as a dense non-aqueous 

phase liquid.”
6

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;

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;
7

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

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 
8

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.

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.
9

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 

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”).
10

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.

5 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, 2021 WL 2096656, 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

B. 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

6 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 
12

Union Pacific’s issue is overruled regarding appellees’ negligent 

misrepresentation claim because the claim seeks recovery for bodily injury, 

wrongful death, and survival.

IV. 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.

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).