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

O P I N I O N

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.
Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 2

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 3

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 4

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 5

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 6

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 sixtyday period for filing a dismissal motion. We cannot construe the Act to 
Jetall Cos., Inc. v. JPG Waco Heritage LLC Page 7

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 sixtyday 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 8

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 9

(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 10

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 onesatisfaction 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 11

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

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