AFFIRM; and Opinion Filed June 28, 2019 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-18-00971-CV 

JONATHAN PERLMAN AND TRADITION SENIOR LIVING, L.P., Appellants 

V. 

EKLS FIRESTOPPING & CONSTRUCTION, LLC, Appellee 

On Appeal from the 101st Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-16-04381 

MEMORANDUM OPINION 

Before Justices Bridges, Schenck, and Pedersen, III 

Opinion by Justice Bridges 

Appellee EKLS Firestopping & Construction, LLC (EKLS) sued Four Suns Construction, 

L.L.C. (Four Suns) and appellants Jonathan Perlman and Tradition Senior Living, L.P. (TSL) 

alleging breach of contract and seeking to pierce the corporate veil of Four Suns to impose liability 

on Perlman and TSL. Appellants filed a motion to dismiss EKLS’s claims pursuant to the Texas 

Citizens Participation Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (the TCPA), and 

now appeal the denial of that motion by operation of law.1

 In three issues, appellants assert the 

trial court erred by (1) sustaining EKLS’s objections to evidence offered in support of the motion 

to dismiss, (2) denying the motion to dismiss, and (3) denying appellants’ request for an award of 

 1

 See CIV. PRAC. & REM. § 51.014(a)(12) (authorizing a person to appeal from an interlocutory order denying a motion to dismiss under 

section 27.003); see also id. § 27.008(a) (providing for denial of TCPA motion by operation of law if motion is not ruled on within TCPA deadlines 

and upon which “the moving party may appeal.”). 
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attorney’s fees and/or sanctions. We conclude appellants failed to carry their burden of 

establishing the TCPA applies to EKLS’s claims. Accordingly, we affirm the denial of appellants’ 

motion to dismiss. 

BACKGROUND

EKLS contracted with Four Suns to provide firestopping installation services for fire-rated 

walls and floors at an assisted living community. Perlman, the sole manager and president of Four 

Suns and president of TSL,2 negotiated and signed the contract.3 Under the contract, EKLS was 

to provide services, its invoices would be paid within thirty days of receipt, it could charge a ten 

percent late fee if invoices were not paid timely, and the total amount invoiced would not exceed 

$125,000. EKLS performed the work, but was consistently paid late. When payments stopped, 

EKLS did not return to the project. 

Four Suns filed suit against EKLS, alleging EKLS breached the contract by failing to finish 

its scope of work. EKLS counterclaimed against Four Suns seeking fees owed under the contract. 

EKLS later amended its counterclaim to add Perlman and TSL as counter-defendants on its claim 

for fees. In its second amended counterclaim, EKLS asserts a breach of contract cause of action 

against Four Suns, TSL, and Perlman for failing to pay EKLS for the work and services it 

performed. EKLS also asserts Four Suns was operated as a mere tool, or business conduit, of 

Perlman and TSL to evade legal obligations and, as a result, the corporate fiction should be 

disregarded and Perlman, individually, and TSL should be liable for EKLS’s damages. As support, 

EKLS alleges it regularly interacted with TSL and Perlman and (1) EKLS was instructed to send 

the invoices to a TSL employee, and Perlman approved the invoices for final payment; (2) Four 

Suns, Perlman, and TSL shared common offices and employees and centralized accounting; (3) 

 2

 TSL, a limited partnership, is the sole member of Four Suns. The sole general partner of TSL is Tradition SL, LLC, and Perlman is the 

manager of Tradition SL, LLC. 

3

 The record shows Perlman signed an EKLS proposal dated May 20, 2015, and a subsequent updated proposal dated June 11, 2015. 
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TSL paid bills for Four Suns, and TSL’s employees rendered services on behalf of Four Suns; (4) 

the allocation of profits and losses between the entities is unclear; (5) Perlman and TSL jointly 

undertook and shared the management, control, and daily operations of Four Suns; and (6) 

Perlman never intended for Four Suns to have any employees. According to EKLS, Four Suns 

“was used fraudulently to act as the contracting party with EKLS so that later Perlman and [TSL] 

could refuse to pay EKLS for work perform (sic) but not have any liability.” 

Appellants filed a motion to dismiss EKLS’s claims under the TCPA. The motion to 

dismiss asserts all of EKLS’s claims are based on appellants’ exercise of the right of association 

and the alter ego claims, which require proof of “fraudulent representations,” also are based on 

their exercise of the right to free speech. The trial court held a hearing on appellants’ motion to 

dismiss but failed to rule on the motion within thirty days of the hearing, causing the motion to be 

denied by operation of law. See CIV. PRAC. & REM. § 27.005(a), .008(a). 

APPLICABLE LAW

The legislature enacted the TCPA 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.” See CIV. PRAC. & REM. § 27.002; ExxonMobil 

Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017). The TCPA sets out a two-step 

procedure to expedite the dismissal of claims brought to intimidate or silence a defendant’s 

exercise of the applicable First Amendment rights. CIV. PRAC. & REM. §§ 27.003(a), .005; 

Coleman, 512 S.W.3d at 898. 

A movant seeking dismissal under the TCPA bears an initial burden of showing by a 

preponderance of the evidence that the legal action is based on, relates to, or in response to the 

movant’s exercise of the right of free speech, the right of association, or the right to petition. CIV.
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PRAC. & REM. § 27.005(b); see also S & S Emergency Training Solutions, Inc. v. Elliott, 564 

S.W.3d 843, 847 (Tex. 2018). If the movant makes this showing, the burden shifts to the nonmovant to establish by clear and specific evidence a prima facie case for each essential element of 

its claims. CIV. PRAC. & REM. § 27.005(c); Elliott, 564 S.W.3d at 847. If the non-movant satisfies 

this requirement, the trial court must still dismiss a claim if the movant “establishes by a 

preponderance of the evidence each essential element of a valid defense to the [non-movant’s] 

claim.” CIV. PRAC. & REM. § 27.005(d); see Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex. 

2018). To determine whether a legal action should be dismissed, the trial court considers “the 

pleadings and supporting and opposing affidavits stating the facts on which liability or defense is 

based.” CIV. PRAC. & REM. § 27.006(a); Hersch v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). 

We review de novo the trial court’s ruling on a TCPA motion to dismiss. Mohamed v. Ctr. 

for Sec. Policy, 554 S.W.3d 767, 773 (Tex. App.—Dallas 2018, pet. denied). In doing so, we 

consider the pleadings and supporting and opposing affidavits in the light most favorable to the 

non-movant. Fishman v. C.O.D. Capital Corp., No. 05-16-00581-CV, 2017 WL 3033314, at *5 

(Tex. App.—Dallas July 18, 2017, no pet.) (mem. op.). 

Whether the TCPA applies to a non-movant’s claims is an issue of statutory interpretation 

that we also review de novo. Youngkin, 546 S.W.3d at 680. In conducting our analysis, we 

construe the TCPA “liberally to effectuate its purpose and intent fully.” CIV. PRAC. & REM. § 

27.011(b); see also State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018). “We ascertain and 

give effect to the Legislature’s intent as expressed in the language of the statute,” see Harper, 562 

S.W.3d at 11, and construe the statute’s words “according to their plain and common meaning, 

unless a contrary intention is apparent from the context, or unless such a construction leads to 

absurd results.” Youngkin, 546 S.W.3d at 680. The supreme court has specifically directed us to 

adhere to the definitions in the TCPA. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 
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894 (Tex. 2018); Youngkin, 546 S.W.3d at 680. However, in the process of applying “isolated” 

definitions, we are required to construe those individual words and provisions in the context of the 

statute as a whole. Youngkin, 546 S.W.3d at 680–81. 

ANALYSIS

In their second issue, appellants contend the trial court erred in denying by operation of 

law their TCPA motion to dismiss because they satisfied their initial burden of showing EKLS’s 

claims are based on, relate to, or in response to appellants’ exercise of their rights of association 

and free speech. The TCPA’s definitions of both exercise of the right of association and exercise 

of the right of free speech require a communication, which includes “the making or submitting of 

a statement or document in any form or medium, including oral, visual, written, audiovisual, or 

electronic.” See CIV. PRAC. & REM. §§ 27.001(1)–(3).4

 Appellants’ motion to dismiss and brief 

on appeal identify the following general categories of communications: “(a) the execution of 

multiple contracts and change orders; (b) documents establishing relationships between Four Suns, 

TSL, and Perlman; and (c) communications between the parties prior to and in connection with 

the contracting upon which EKLS bases its allegations that Perlman and TSL are each liable as 

parties to the agreement.”5 

Exercise of Right of Association 

On appeal, appellants assert EKLS’s breach of contract and piercing the corporate veil 

claims6

 against them are based upon their exercise of the right of association and, specifically, 

 4

 Following this case’s submission, the Texas Legislature amended the TCPA in several respects, including removing the “communication” 

requirement from the definition of an “exercise of the right of association.” See Act of June 2, 2019, 86th Leg., R.S., ch. 378, § 1-12, 2019 Gen. 

Laws ___. The amendments, however, apply only to actions filed on or after September 1, 2019. Id. at § 11. 

5

 Our review of EKLS’s second amended counterclaim shows it refers to the following communications: (1) EKLS being hired to provide 

firestopping installation; (2) Perlman negotiating and signing the contract; (3) Perlman and EKLS agreeing to the contact’s terms; (4) EKLS being 

instructed to send invoices to Lisa Gros, a TSL employee, and Robert Russell, a Tradition Management, LLC employee; (5) EKLS’s weekly 

invoicing; (6) Perlman approving invoices for payment; and (7) EKLS regularly having to follow up with Gros, Russell, and Perlman for payment. 

EKLS’s brief also refers to evidence that Perlman required EKLS to list Four Suns as the contracting party. 

6

 Appellants refer to, and address, EKLS’s request to pierce the corporate veil as a separate claim, apart from EKLS’s breach of contract 

claim. An attempt to pierce the corporate veil, in and of itself, is not a cause of action, but rather a means of imposing liability in an underlying 
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communications, including Perlman’s execution of the EKLS contract “along with whatever 

additional documents or communications establish Perlman’s relationship with TSL” and “the 

‘communications’ which establish [the] association” between Perlman, TSL, and Four Suns. 

The TCPA defines the “exercise of the right of association” as “a communication between 

individuals who join together to collectively express, promote, pursue, or defend common 

interests.” CIV. PRAC. & REM. § 27.001(2); see also Kawcak v. Antero Res. Corp., No. 02-18-

00301-CV, 2019 WL 761480, at *6 (Tex. App.—Fort Worth Feb. 21, 2019, pet. denied). This 

Court has concluded that “to constitute an exercise of the right of association under the [TCPA], 

the nature of the ‘communication between individuals who join together’ must involve public or 

citizen’s participation.” Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 426 (Tex. App.—

Dallas 2019, pet. denied) (quoting ExxonMobil Pipeline Co. v. Coleman, 464 S.W.3d 841, 847 

(Tex. App.—Dallas 2015), rev’d on other grounds, 512 S.W.3d 895). 

Neither appellants’ motion to dismiss nor their brief in support identified a common interest 

they joined together to collectively express, promote, pursue, or defend. During the hearing on 

their motion to dismiss, appellants identified “build[ing] this assisted living facility” as a common 

interest between themselves and Four Suns. On appeal, they identified a common interest in 

“contracting with EKLS.” To establish an exercise of the right of association, however, appellants 

also had to show the nature of the communication involved public or citizen participation. See 

Dyer, 573 S.W.3d at 426. Appellants did not show how Perlman’s execution of a private contract 

with EKLS involved any public or citizen participation. Similarly, to the extent EKLS’s claims 

are based on, relate to, or in response to any communications that “establish” the “relationship” or 

“association” between Perlman, TSL, and/or Four Suns, appellants have not shown those 

 

cause of action. Matthews Constr. Co. v. Rosen, 796 S.W.2d 692, 693 n.1 (Tex. 1990). In any event, we address whether EKLS’s claims against 

appellants as alleged in its petition are based on, relate to, or in response to appellants’ exercise of both the right of association and the right of free 

speech. 
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communications, without more, involve public or citizen participation. See Coleman, 464 S.W.3d 

at 847 (in light of TCPA’s purpose, “it would be illogical for the [TCPA] to apply to situations in 

which there is no element of public participation”). 

Construing the TCPA to find a right of association in this case simply because there are 

communications between parties with a shared interest in a private business transaction does not 

further the TCPA’s purpose to curb strategic lawsuits against public participation. See, e.g., Dyer, 

573 S.W.3d at 426–27 (concluding text messages between individuals pursuing common interest 

of misappropriating appellees’ proprietary software and confidential business information did not 

involve public or citizen’s participation); Kawcak, 2019 WL 761480, at *17 (“[T]he plain meaning 

of the word ‘common’ in TCPA section 27.001(2)’s definition of ‘the right of association’ requires 

more than two tortfeasors conspiring to act tortiously for their own selfish benefit.”); see also In 

re IntelliCentrics, Inc., No. 02-18-00280-CV, 2018 WL 5289379, at * 4 (Tex. App.—Fort Worth 

Oct. 25, 2018, orig. proceeding) (recognizing “distinction between communications used as 

evidence to support a claim for breach of contract and a claim ‘based upon, relate[d] to, or [] in 

response to’ that communication under the TCPA”). Because appellants have not shown the nature 

of any communication they rely upon involved public or citizen participation, we conclude they 

failed to establish by a preponderance of the evidence that EKLS’s claims are based on, relate to, 

or in response to appellants’ exercise of a right of association as defined by the TCPA. 

Right of Free Speech 

 Appellant also assert EKLS’s alter ego claims are based upon appellants’ exercise of the 

right to free speech. Appellants contend EKLS’s allegation that Four Suns “was used fraudulently 

to act as the contracting party with EKLS” necessarily implies a communication in the form of a 

misrepresentation. 
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The “exercise of the right of free speech” is a communication made in connection with a 

matter of public concern. CIV. PRAC. & REM. § 27.001(3). A “matter of public concern” may 

include an issue related to health or safety, environmental, economic, or community well-being, 

the government, a public official or public figure, or a good, product, or service in the marketplace. 

Id. § 27.001(7). Private communications made in connection with a matter of public concern fall 

within the TCPA’s definition of the exercise of the right of free speech. Lippincott v. Whisenhunt, 

462 S.W.3d 507, 509 (Tex. 2015) (per curiam). The TCPA does not require that communications 

specifically “mention” a matter of public concern or have more than a “tangential relationship” to 

such a matter, but applies so long as the movant’s statements are “in connection with” “issue[s] 

related to” any of the matters of public concern listed in the statute. Coleman, 512 S.W.3d at 900. 

The TCPA, however, “has its limits” and not every communication falls under the statute. See 

Dyer, 573 S.W.3d at 428 (citing In re IntelliCentrics, Inc., 2018 WL 5289379, at *4). 

Appellants argue they met their burden of establishing the TCPA applies to EKLS’s alter 

ego claims because the claims are “expressly based on alleged misrepresentations by Perlman 

and/or TSL in that EKLS alleges Four Suns ‘was used fraudulently to act as the contracting party 

with EKLS so that later Perlman and [TSL] could refuse to pay EKLS for work perform [sic] but 

not have any liability.’” (Emphasis in original). For the first time in their reply brief on appeal, 

appellants assert these communications were made in connection with a matter of public concern 

– health and safety – because assisted living facilities must be licensed under the Texas Health and 

Safety Code, construction of assisted living facilities is highly regulated under the Texas 

Administrative Code in Texas, and firestopping is required to comply with “very specific and 

somewhat onerous fire safety standards promulgated” by the Texas Department of Aging and 

Disability Services. 
 –9– 

To establish they were exercising their right of free speech, appellants had to show any 

“misrepresentations”7 alleged by EKLS were made in connection with a matter of public concern. 

See Coleman, 512 S.W.3d at 900. However, “[c]onstruing the [TCPA] to denote that all private 

business discussions are a ‘matter of public concern’ if the business . . . is related to health or safety 

is a potentially absurd result that was not contemplated by the Legislature.” Erdner v. Highland 

Park Emergency Ctr., LLC, No. 05-18-00654-CV, 2019 WL 2211091, at *5 (Tex. App.—Dallas 

May 22, 2019, no pet. h.) (communications about formation of freestanding emergency room 

business and possible scope of its future activities were not exercise of free speech simply because 

communications could result in healthcare services being offered to the public at some point in the 

future); Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-00732-CV, 2019 WL 2121116, at *5 

(Tex. App.—Dallas May 15, 2019, no pet. h.) (mem. op.) (statements about a business dispute, the 

subject of which involved physicians as part of an agreement for locum tenens coverage, were not 

in connection to an issue related to health and safety or community well-being such that they were 

“matter of public concern”); Dyer, 573 S.W.3d at 428 (communications discussing 

misappropriating proprietary software and other confidential information were not tangentially 

related to a matter of public concern simply because the information belonged to a healthcare 

company). 

Here, appellants never argued in the trial court that EKLS’s legal action was based on 

communications related to health and safety. Nor have they shown EKLS’s piercing the corporate 

veil theory is based on, relates to, or in response to any communication made in connection with 

an issue related to health and safety. Although the contract called for EKLS to perform 

 7

 Appellants contend they cannot be liable unless EKLS establishes appellants perpetrated an actual fraud, which requires a communication 

in the form of a misrepresentation. In support, appellants cite authority setting out the elements of a fraud cause of action. However, in the context 

of piercing the corporate veil, actual fraud is not equivalent to the tort of fraud and instead involves “dishonesty of purpose or intent to deceive.” 

See TEX. BUS. ORG. CODE ANN. § 21.223(b); Martin v. U.S. Merchants Fin. Group, Inc., No. 05-13-00999-CV, 2014 WL 6871392, at *5 (Tex. 

App.—Dallas Dec. 8, 2014, no pet.) (mem. op.); Latham v. Burgher, 320 S.W.3d 602, 607 (Tex. App.—Dallas 2010, no pet.). 
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firestopping services at an assisted living facility, the only issues in this case are whether EKLS 

performed the services and, if so, who is liable for paying for those services. Under these 

circumstances, we cannot conclude appellants satisfied their burden of showing by a 

preponderance of the evidence that EKLS’s claims are based on, relate to, or in response to 

appellants’ exercise of the right of free speech. See, e.g., Erdner, 2019 WL 2211091, at *5; Staff 

Care, Inc., 2019 WL 2121116, at *5; Dyer, 573 S.W.3d at 428, at *6; compare Newspaper 

Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 81 (Tex. App.—Houston [1st 

Dist.] 2013, pet. denied) (op. on reh’g) (newspaper articles about an assisted living facility, 

especially whether it was meeting legal requirements and whether it was denying residents their 

legal rights, were in connection with matter of public concern). Accordingly, we need not address 

whether EKLS established the elements of its prima facie case against appellants by “clear and 

specific evidence” or appellants’ third issue asserting the trial court erred in denying their request 

for an award of attorney’s fees and/or sanctions.8

 See Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 

287 (Tex. App.—Dallas 2015, pet. denied) (because appellant failed to meet its burden of showing 

TCPA applied to appellees’ claim, appellate court need not address other prongs of TCPA 

analysis). We overrule appellants’ second issue. 

EKLS includes in its brief a request that we remand with an order that the trial court award 

it court costs and reasonable attorney’s fees under section 27.009(b) because appellants’ motion 

to dismiss was frivolous. See CIV. PRAC. & REM. § 27.009(b) (authorizing trial court to award 

court costs and reasonable attorney’s fees to a responding party if it finds a TCPA motion to 

dismiss is frivolous or solely intended to delay). EKLS, however, did not file a notice of appeal, 

which is required to alter a trial court’s judgment or other appealable order. See TEX. R. APP. P. 

 8

 Similarly, we need not address appellants’ first issue in which they complain the trial court erred in excluding supplementary evidence 

appellants filed to address newly-asserted factual allegations in EKLS’s second amended counterclaim. Appellants neither cited to nor relied on 

the excluded evidence in arguing the TCPA applies to EKLS’s claims. 
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25.1(c). Under rule 25.1(c), we may not grant a party who does not file a notice of appeal “more 

favorable relief than did the trial court except for just cause,” see id., and EKLS has made no just 

cause argument. Accordingly, EKLS has waived our consideration of this issue on appeal. See

TEX. R. APP. P. 38.1(h); Lacroix v. Simpson, 148 S.W.3d 731, 735–36 (Tex. App.—Dallas 2004, 

no pet.); New York Party Shuttle, LLC v. Bilello, 414 S.W.3d 206, 218–19 (Tex. App.—Houston 

[1st Dist.] 2013, pet. denied). 

We affirm the trial court’s denial of appellants’ motion to dismiss by operation of law. 

/David L. Bridges/ 

 DAVID L. BRIDGES 

 JUSTICE 

180971F.P05 

 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

JONATHAN PERLMAN AND 

TRADITION SENIOR LIVING, L.P., 

Appellants 

No. 05-18-00971-CV V. 

EKLS FIRESTOPPING & 

CONSTRUCTION, LLC, Appellee 

 On Appeal from the 101st Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. DC-16-04381. 

Opinion delivered by Justice Bridges; 

Justices Schenck and Pedersen, III 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

 It is ORDERED that appellee EKLS FIRESTOPPING & CONSTRUCTION, LLC 

recover its costs of this appeal from appellants JONATHAN PERLMAN AND TRADITION 

SENIOR LIVING, L.P. 

Judgment entered June 28, 2019.