Affirmed and Opinion filed March 31 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00308

- CV

UNION PACIFIC RAILRO AD 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 H ORACE, KRISTEN GILMORE, Individually and as Representative of the Estate of JODIE ARCHIE (Deceased), KRISHONDE ALL EN, ESTELLA AMES , DEBRA AMM ONS, 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, K ARE N DICKEY, MERVE EUELL, P HYL LIS FARR, ROY FITZPATRICK, MOZELLE FLANNIGAN, KATHY GABRIEL, JIMMY GALENTINE, JOEL GREEN, ADELL GUILLORY, LESTER HARR IS, WILLIE HARRIS , KERRY LYNN HASKETT, RICHARD HENRY, CARMELITA HIGGINS, LATINA HILL , HAROLD HORACE, HERBERT HOR ACE, TAMARA JACK SON, JAM ES 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 RI CHARDSON, JOHNNY RISTON, RO DNEY 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, LA WRE NCE WALKER, JOHN WALKER, OP AL WALKER, RENEE WALKER, LOU PRICE

WALKER, CONNIE WALTON, LADETRIA WESLEY, EDITH WILBURN, SANFORD WILLIAMS, TANYA WOOTEN, BOBBY WO RTHY, PATRICIA WORTHY, and JAMES YOUNG , Appellee s

On Appeal from the 281st District Court

Har ri s C ounty, Texas Tri al Court Ca use 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 carcinog en. The trial co urt denie d Union Pa cific ’ s m ot ion to dismiss appellees ’ “ property

- damage claims ” under the Texas Ci tizens Participation Act (TCP A)

. 1 In a single issue, Union Pacific cont ends that the trial court erred by den ying the motion. We affirm.

I. T CPA L EGA L P RINCIP LES

The TCPA was de signed to p rotect a defendant ’ s rights of speech, petition,
and association while protecting a claimant ’ s right to pursue valid legal claims for injuries cau sed by the defendant. Montelo ngo v. Abrea , 622 S.W.3d 290, 295 (Tex. 2 02 1) (cit ing Tex. Civ. Prac. & Rem. C o d e § 27.002)). To acc omplish this objective, the T CPA provides for a multi

- step proces s 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. Firs t, th e movant must demonstrate that the legal acti on is “ b ased on o r is in response to ” th eir e xe rcise of the right of free speech, petition, or association. I d. I f the movant meets this burden, the claimant may avoid dismissal by establishing by clear and specific evidence a prima facie
case for each es sential element of the claim in que stion. I d. Moreover, a claimant may avoid dismissal by esta blishing that the legal action is ex e mpt from the TCPA under a specific statutory exemption

. Hieber v. Percheron Holdings, LLC , 591
S.W.3d 208, 210

– 11 (Tex. Ap p.

— Houst on [14th Dist.] 2019
, pet. denied) ( ci ting
T ex. 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, declara tory, or equitable relief. ” Tex. Ci v. 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” mea ns, amon g other things, (1) a commu nication in or pertaining

to “ an executive or other proceeding b efore a department of the state or federal government , ” or (2) “ a communication in connection wi th an issue under consideration or review by a leg islative , e xecutive , judici al , or other govern mental
bo dy or in a nother 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 rela ting to a gover nmental

proce eding or a matt er of public concern. Id. § 27.001(2). A “communication” is broadly defined as “the making or submitt ing 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 definit ion doe s no t 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
, 20 21 WL 6050677 , at *4 (Tex. App.

— Houston [14th Dist.] Dec. 21, 2021, no pet.) (mem. op.).

T h e “ exemptions ” section of the TC PA pro vi des in relevant par t that th e 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. 0 1 0( 3 ) , (12)

. We review de no vo whether the partie s have me t their respective burden s

. 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 a re the “ best, a nd all s ufficient evidence of the na tu re ” 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

nonmovant s , favoring the conclusion that the ir claims a re not pr edicated on protec te d expression. Sanche z v. Striever , 614 S.W.3d 233, 24 6 (Tex. App.

— Houston [14th Dist.] 2020, no pet.).

Dismissal under the TCPA is determined on a claim

- by

- claim basis. Re pub. Tavern & Music Hall, LLC v

. La urenzo ’ s Midtown M gm t., LLC , 618 S.W. 3d 118,
1 22 (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 th e extent that i t is in response to the prote ct ed conduct, as opposed to be ing subject to dismissal in its entirety. ”
Navide a Biopharm

. , Inc. v. Capital Royalty P artners II , L.P. , No. 14

- 18

- 00740

- CV, 2020 WL 5087826, at *4 (Tex. App.

— Houston [14th Di st.] Aug. 28, 20 20,

p e t. denied) (mem. op .)

.5 II. A PPEL LE ES ’ P ETITION In their petition, appellees assert claims against Union Pacific and other
defend ants for n egligence, negligen ce per se, negligent misrepresentation,
fraudu lent concealment, and nuisance

. 3 Appel lees seek damages for wrongful
death and survi va l
, property damages, and damages for personal injuries
, including: (1) phy sica l pain; (2) physical impa i rment; (3) disfigur emen t; (4) mental anguish; (5) pecuniary losses ; (6) the loss of use and enjoyment of real property ; and (7) the loss of o r diminis he d economic value of real property.
Appellees allege that Union Pacific knowingly contaminated residenti a l neighborhoods in Hous ton with creosote, a probable carcinogen , and that the
contaminati on is ongoing. Appellees al lege
, “ As a result of ex posure to t oxic chemicals used, stored
, and improperly dumped at Union Pacific ’ s rail yard,
Plaintiffs have suffer e d injuries in the f orm of cancer, death
, and property damage caused by contamination. ”
Appellees allege
, “ Union Pacific and its consulting geologist s

. . . have misrepresented the extent of the threat posed by creosote waste and the DNAPL
, [ 4 ] concealing the true nature of the h azard in reports to the TCEQ and

3 Union Pacific notes that “ fr audulent conceal ment ” is n o t a rec ognized claim in Texas but an affirmative defense to a statute of limitations . Appellees contend that their “ conc ealment ” claim is o ne for fraud by non disclosure , and we agree

. See Flowers v. ZBR Holdings, LLC
, N o

. 05

- 16

- 00345

- CV, 2017 WL 3 4845 4 2
, at * 1 n.1 (Tex. App.

— Dallas Aug. 15, 2017, no p et. ) (mem. op.) ( “ Appellees called the last claim ‘ Concealment, ’ but cour ts usually call thi s claim fraud by nondisclosure. ” ) ; Brocail v. Detroit Tigers, Inc. , 268 S.W.3d 90, 110 (T ex. App.

— Houston [14th D i s t .] 2008, pet. d enied) (applying Michigan law, no ting that “ [ f]raudulent concealment [is] also known as fraud by nondis clo sure ” ) ; Kawecki v. Int ’ l Bank of Commerce
, No. 14

- 01

- 01025

- CV, 2003 WL 21782345, at * 1 n.3 (Tex. App.

— Housto n [14th Dist.] J uly 31, 2 0 0 3, no pet.) (mem. op.) (treating the plaintiffs ’ “ fraudulent concealment claim as one for fraudulent non disclosure ” ).

4 DNAPL is “ an under ground plume of cre osote sludge known as a dense non

- a queo us phase liquid. ”6

communications with the public in order to obtain required permits. ” Union
Pacific has “ fail ed to dis cl ose the full extent of the contamination or the known health risks posed to property owners an d others exposed to t he c ontaminates over
time. ”
Regarding the ne gligence claim, appellees alleg e that Union Pacific was negligent in the foll owing way s:
1. Failing to warn of the health hazards associated with creosote and toxic chemicals used, stored and du m ped 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 hea lth; 3. Fail in g to take reasonable steps to prevent and mitigate air, soil and water contamination caused by creosote and toxic chemi cals known to be hazardous to human health; 4. Failing to properly monitor and test for air, soil and water contamination caused by creoso te and toxic chemicals known to be hazardous to human health; 5. Failing to notify Plaintiffs of air, soil a n d water contamina ti on caused by creosote and toxic chemicals known to be hazardous to human health;
6. Failing to notify governmental agencies a nd author it ies of air, soil and water contamination caused by creosote and toxic chemicals known to be hazardous t o human health;
7. Fail ing to disclose the full extent and nature of air, soil and water contamination at or near the Engelwood Rail Yard to Plai ntiffs an d 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. Fai ling to protect Plaintiffs and the gener al public f rom the harmful effects of exposure to creosote and toxic chemicals;7

10. Failing to prevent creosote and to x ic chemicals from p ermeating ground water and creating a creosote NAPL beneath residential properties; 11. Failing to take timely and reasonable steps to co ntain the creosote NAPL and mitigate the risks to human health posed by the creosote NAPL; 12. Failing to w a

rn of or prevent pr operty damage caused by soil and water contamination caused by creosote and toxic che micals known to be hazardous to human health; 13. Fa iling 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 reasonab ly evalua te the risk of air, soil and water contamination by creosote and toxic chemicals; and 15. Failing to prevent P laintiffs and the g eneral public from coming into cont act with creosote and other toxic chemicals, including, but not limited to failing to i mplement sa fety 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 Pacif ic has violated
several section s of the Administr ative Code tha t prohibit the creation of a nuisance or endangering the public health and welfare as the result of stori n g, processing, disp osing, or other conduct related to hazardous wastes. See 30 Tex. Admi n. Code §§ 335.4, 335.1 77

. Regard ing negligent misre presentat io n, appellees allege among other things
that Union Pacific and other defendants “ made representations to governmental agenci es and Plaintiff s regarding the n ature of the air, so il, and water contamination caused by creosote and toxic chemicals an d their e ff orts to mitigate and monitor air, soil, and water contamination caused by creosote and toxic
chemicals. ” Appellees alleg e that Union Pacific and other defendants failed to use8

reasonable care in “ adequately and properly disclosing ” the hazards to human
he alth and the nature and scope of the contamination cause d by creosote and toxic
chemicals. Appellees a l lege that the negli gent misrepresentations have

“ proximately caused Plaintiff s ’ damages. ”
Regarding fraudulent concealment , appellees allege that Unio n Pacific and other defendants knew of the hazards to human health posed by creosote and toxic
ch emicals, including the risk of di sease, cancer, and death, yet “ [t]o avoid liability
and obtain operating permits from governmental agencies, Defendan ts intent io nally concealed the scope and dangers associated with the air, soil, and
water contamination cau sed by c reosote and toxic c h emicals from Plaintiffs, the

govern ment, and the general publ i c. ”
Regarding nuisance, appellees allege that Union Pacific unreason ab ly invaded appellees ’ interests in the private use and enjoyment of their homes and land by knowingly c o ntaminating air, so il, and water on and underneath app ellees ’ properties. Additiona lly, Union Pacific unreasonably interfered with rights

co mmon t o t he general public, including permitting the discharge of cr eosote and toxic chemicals into public right o f ways.
III. A NALYSIS

Uni on Pacific contends that the tria l court should have dismissed each of appell ees ’ claims to the extent they are “ property

- damage cl ai ms ” because they are
based on or in re s ponse to Union Pacific ’ s exercise of the right s of free spee ch,

a ssociation, and pet ition. Union Pacific contends tha t the TCPA doe s not exempt property

- damage claims or any of appellees ’ claims under the fraud exc ep tion

. Appellees respond that their claims are based on or in response to Union Pacific ’ s contamination
, not the exercise o f a pro tected right , and their claims are for phy sical injury and fraud, which are exempted from the TCPA.9

A. Negligence, Neg ligence P er Se, Fraudulent Concealment, and Nuisa nce Regarding appellee s ’ c laims for negligence, negligence per se, frau dulent
conceal ment, and nuisance
, Union Pacific focuses on the global allegations contained in appellees ’ petition that (1) Union Pacifi c “ failed t o dis cl ose the full extent of the contamination or the known health risks posed to property owners and

o thers exposed to t h e c ontaminates over time ; ” and (2) “ Union Pacific and its consulting geologists . . . have misrepresented the extent of th e threat po sed by
creosote waste and the DNAPL
, concealing the true nature of the h azard in reports to the TCEQ and comm unications wit h the public in order to obtain required permits. ” Union Pacific contends that these allegati ons show that appellees ’
cla ims are b as ed on or in response to Union Pacific ’ s exercise of the right s of free speech, association, and petition

. The first global allegation is based on a failure to disclos e

— a failu re to communicate

— which does not implicate protected activity. See DO JO Bayhou se , 20 21 WL 605 0677, at *4

. Regarding the second global allegation about Union
Pacific and othe rs having “ misrepresented the extent of the threat posed by the

cr eosote waste, ” Union Pacific h as not d emonstrated that appellees ’ negligence, neglige nce per s e, fraudulent concealment, and nuisance claims are “ based on ” or

“ in response to ” such misrepresentations. The mi srepresenta tion s do not form the “basis for the legal claims or the impetus fo r suit ” concerning negligence, negligence per se, fraud ulent con ce alment, or nuisance. See ML Dev. , LP v. Ross Dress for Less, Inc. , No. 01

- 20

- 00773

- CV, 2021 WL 2096656, at *4 (Tex. App.

— H ouston [1st Dist.] May 25, 2021, no pet.) (reasoning that al though alleged

statements “ may have accompanied ” complained

- of conduct, t he communications
th emselves did not “ provide the basis for the legal claims or the impetus for suit ” ).10

Rather, the gravame n of th ese claims is Union Pacific ’s contamination o f Houston neigh borhoods with creosote and Union Pacific ’s failures to communica te regarding the scop e and dangers of the contamination. See Sanchez , 614 S.W.3d at
2 46 (considering the “ grav amen of the cl aim as pleaded ” to determine whether the
defendant ’ s communication related to a protected right; “ [S]imply alleging conduc t that ha s a communication embedded within it does not create the relationship
between the claim and the communicat ion necessary to in voke the TCPA. ” ( alteration in original) (quoting Kawcak v. Antero Res. Corp. , 582 S.W.3d 566, 587 (Tex. App.

— Fort Worth 2 019, pet. d enied))). T he alleged joint misrepresentation s , i.e., communication s , do not “ draw an adequate connecti on to invoke the TC PA under the amended language ” for appellees ’ claims of negligence, negligence per se, fraudulent concealment, and nuisanc e. See U ni on Pacific R .R. Co

. v. Chenier , No. 01

- 21

- 00073

- CV, 2022 WL 547642 , at * 7 (Tex. Ap p.

— Houston [1st Dist. ] Feb. 24, 2022 , no pet. h

. ) (affirming denial of Union
Pacific ’ s TCPA motion in simil ar lawsuit alleging contamination based on creosote and claims fo r negligence, negligence per se, negligent misrepresent ation
, fraud,
and nuisance ). 5

Union Pacific ’ s is sue is overruled re garding appellees ’ claims for negligence , negligence per se, fraudulent concealment, and nuisance because
U nion Pacific fa iled to de m onstrate that these claims are based on or in response to
Union Pacific ’ s exercise of a protected right

.

5 The TCPA wa s amended in 201 9 to nar r o w the categories of connections a claim could h ave to the exercise of a protected right in order for a defendant to obta in a dismissal. Se e generally ML Dev., LP , 202 1 WL 2096656, at *2

– 3 (discussing removal o f the phrase “ rela tes to ” from the prior ve r s ion of the TCPA that allowed dismissal if the mo vant proved that the claim was “ based on, relates to, or is in response t o ” the movant ’ s exe rcise of a protected right)

. The amendment “ removed the broadest category of connection, thereb y requiri ng future T CPA movants to establish a closer nexus between the claims against them and the communications they point to as their exe rcise of protected rights. ” Id. at *5.11

B. Negligent Misr epre sentation
We assume without deciding that the final challenged claim, ne gligent misrepresentation, is based on or in respo nse to Uni o n Pacific ’ s exercise of a protected right. Appellees alleg e in their petition that Union Pacific ’ s negl igent misrepresenta tion s proxim ately caused damages. Because appellees seek damages
for bodily injury
, wrongful death, and su rvival for thei r negligen t misrepresentation claim, t he claim falls squarely within the T CPA ’ s exception :

“ This chapter does not a pply to . . . a leg al action seeking recovery for bodily injury, wrongful death, or survival or to statements made regarding t hat legal
actio n. ” Tex. C iv. Prac. & Rem. Code § 27.010(a)(3).
Union Pacific appears to a r gue that a single claim or cause of acti on like negligence

— a “ legal action ”

— can be subdivided under the TCPA into a claim that
seeks re covery for bodily injuries and a separate clai m that se e k s re covery for property damage s , and the TCPA ex ception would not apply to the separate claim seeking recovery of propert y damages

. Union P acific cit es no case treating a claim as such under the TCPA, a nd we have found non e. Th e plain language of the

s t a tute indicates that if the claim se eks recovery for bodily injury, wrongful death, or survival, then the TCPA does not ap ply

— it does not mat ter that the claim could
also result in recovery of damages that arguably fall outside th e meaning of “ bo dily inju r y

. ” See Cavin v. Abbott , 545 S.W.3d 47, 5 7 (Tex. App.

— Austin 2017, no pet.) ( TCPA did not apply to an assault claim , whic h sought recovery f or “ bodily injury ” because the claimant sought recovery of medical expenses and

c ompensat ion for physical pain eve n though some of the soug ht

- after damages

“ would arguably fall outside ‘ bodily injury ’ ” )

. 6

6 We note that a claim for negligent misrepresentation may allow rec overy for physic al harm, s e e D.S.A. , Inc. v. Hillsboro Indep. Sch. Dist. , 97 3 S.W.2d 662, 664 (Tex. 1998) , and this12

Union Pacific ’ s issue is overrul ed regarding appell ees ’ negligent misrepresentation claim because the clai m seeks reco very for bodily injury
, wrongful death , and sur v i val

. IV. C ONCLUSION

Union Pacific ’ s sole issue is overruled. The tria l court ’ s order denying
Union Pacific ’ s motion to dismi ss under the TCPA i s affirmed.

/s/ K en Wi se J ustice

Panel con si sts of Just ices Wis e , Bourliot , and Zimmerer

.

case does not invol ve artful ple ading in an attempt to circumvent the TCP A, see Reeves v. Harbor Am. Cent., Inc. , 6 31 S.W.3d 299, 303 n.2 (T ex. App.

— Housto n [14th Di s t .] 2020, pet. denied).