Motion for Rehearing Granted; Affirmed in Part, Reversed in Part, and

Remanded; and Opinion on Rehearing filed June 2 , 2022.

In The 

## Fourteenth Court of Appeals

NO. 14

- 20

- 00308

- CV

UNION PACIFIC RAILRO AD COMPANY , Appellant
V. ANNA DORSEY, Individuall y a nd as Representative of the Es tates 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 Representativ e o f the Estate of JODIE ARCHIE ( Deceased), KRISHONDE ALL EN, 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, WI LL I AM COOKSKY, DIANNA CORMIER JAC KSON, AUTREA DAVIS, KARE N DICKEY, MERVE EUELL, PHYLLIS FARR, ROY FITZPATRICK, MOZELLE FLANNIGAN, KATHY GABRIEL, JIMMY GALENTINE, JOEL GREEN, ADELL GUILLORY, LESTER HARR IS, WILLIE HARRIS , KERRY LYNN HASKETT, RICHARD HENRY, C AR M ELITA HIGGINS, LATINA HILL , HA ROLD HORACE, HERBERT HOR ACE, 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, BAR RY RHODES, ALLEN RICHARDSON , DON NA RICHARDSON, DWIGHT RI CHARDSON, 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 VANW RI GHT, ELNORA VICTOR, JESSE VICT OR , CHANTA VISTON, LAWRE NCE WALKER, JOHN WALKER, OPAL WALKER, RENEE WALKER, LOU PRICE

WALKER, CONNIE WALTON, LADETRIA WESLEY, EDITH WILBURN, SANFORD WILLIAMS, TANYA WOOTEN, BOBBY WO RTHY, PATRICIA WORTHY, and JAMES YOUNG , App el lee s
On Appeal from the 281st District Court

Har ris C ounty, Texas Trial Court Cause No. 2020

- 07396

OPINION ON REH EARING We grant appellant Union Pacific Railroad Compa ny ’ s motion for rehearing, withdraw our prior opinion dated March 31, 202 2, and issu e this opinion on rehearing it its s tead. Appellees sued Union Pacific for claims related to Union Pacific ’ s contamination of residential neighborhoods in Houston with creosote, a probable

ca rcinog en. The trial court denie d Union Pacific ’ s motion to dismi ss 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 aff

irm in part, reverse in part, and remand for further proceedings.

1 See Tex. Civ . Prac. & Rem. Code ch. 27; see al so In re Lipsky , 460 S.W.3d 579, 584 &
n .1 (Tex. 2015 )

.3 I. T CPA L EGA L P RINCIPLES
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 cau sed by the defendant. Montelo ngo v. Abrea , 622 S.W.3d 290, 2 95 (Tex. 2 02 1) (citing Tex. Civ. Prac. & Rem. Co de § 27.002)). To acc omplish this objective, the T CPA provides for a multi

- step proces s for the dismissal of a legal action to which it applie s. See id. Firs t, th e movant must demonstrate that the legal ac ti on is “ b ased on or is in response to ” th eir exercise of the right of free speech, petition, or association. I d. I f the movant meets this burden, the claimant may avoid dismissal by establ ishing by clear and specific evidence a prima facie case for each e s sential element of the claim in question. Id. 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. A p p.

— Houst on [14th Dist.] 2019 , pet. denied) (citing T ex. Civ. Prac. & Rem. Code § 27.005(d) )

. A “ legal action ” means a “ lawsuit, cause of action, petition, complaint,

cross
- claim, or counte rclaim or any other judicial pleading or filing that requests leg al , declara tory, 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 co ncern. Id. § 27.001( 3). An “exercise of the right to petition” me a ns, amon g other things, (1) a communication in or pertaining
to “ an executive or other proceeding b efore a department of the state or federal government , ” or (2) “ a communication in connec tion wi th an issue under consideration or review by a leg islative , e xecutive , judicial , or other governmental body or in a nother governmental or official proceeding. ” Id. § 27.001(4)

. 2 An

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

“exercise of the right of association” means to join together to c ollectively express, promote, pursue, or defend common interests re la ting to a governmental
proce eding or a matter 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 .3 d 675, 680 (Tex. 2018). The definition doe s not include a

“ failure to communicate. ” DOJO Bayhouse, LLC v. Pickford , No. 14

- 20

- 00237

- CV , 20 21 WL 6050677 , at *4 (Tex. App.

— Houston [14th Dis t.] Dec. 21, 2021, no pet.) (mem. op.). As relevant here, a “ mat te r of public concern ” means a statement or activity regarding “ a matter of political , social, or other interest to the community ” or “ a subject of concer n to the public. ” Te x. Civ. Prac. & Rem. Code § 27.0 01( 7).

T h e “ exemptions ” section of the TC PA pro vi de s 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 w hether the parties have met their respective burden s

. See M.A. Mills, P.C. v. Kotts , 640 S.W.3d 323, 326 (Tex. App.

— Houston [14th Dist.] 2022, no pet. h .) . In reviewing these issues, the pleadings a re the “ best, a nd all suf ficient evidence of the natur e ” 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 r e not pr edicated on protected e xpression. Sa nche 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 118,5

122 (T ex. App.

— Houst on [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 i s in response to the protecte d conduct, as op posed 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 et. denied) (mem. op.)

. When co ur ts are unable to identify a means to determine which claims are in response to protected rather than unprotected communications, a trial court does not err by denying the motion. Id. at *4

– 5 (affirming denial when this court could “not see a practicable w ay to parse out the degree to which” the claims were based on protected rather than unprotected communications).
II. A PPELLEES ’ P ETITION
In t heir petition, appellees assert claims against Union Pacific and other defend ants for ne gligence, negligence per se, ne gligent misrepresentation, fraudu lent concealment, and nuisance

. 3 Appel lees seek damages for wrongful death and survival , property damag es, and damages for personal injuries , including: (1) phy sica l pain; (2) physical impa ir ment; (3) disfiguremen t; (4) me ntal 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. A s Union

3 Union Pacific notes that “ fraudulent concealment ” is not a rec ognized claim in Texas but an a ffirmative defense to a statute of limitati ons . Appellees contend that th eir “ concealment ” claim is one for fraud by non disclosure , and we agree

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

. 05

- 16

- 00345

- CV, 2017 WL 3 484542, at * 1 n.1 (Tex. App.

— Dallas Aug. 15, 2017, no p et. ) (mem. op.) ( “ Appe ll ees calle d 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. d enied) (applying Michig an law, no ting that “ [ f]raudulen t concealme nt [is] also known as fraud by nondis closure ” ) ; 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 p laintiffs ’ “ fraudulent concealme nt claim as one for fraudulent non disclosu re ” ).6

Pacific notes in its motion for rehearing, and appellees do not dispute , appellees allege i n their petition that some of them suffered both “ property dama ge and

cancer ” while thirteen ap pe llees suffered only “ property damage

. ” 4 Appellees allege that Union Pacific knowingly contaminated residenti al neighborhoods in Hous ton with creosote, a prob ab le carcinogen , and that the contaminati on is ongoing. Appellees al lege , “ As a result of exposure to toxic chemicals us ed, stored , and improperly dumped at Union Pacific ’ s rail yard, Plaintiffs have suffer ed injuries in the f orm of cancer, death , and pro pe rty damage caused by contamination. ” Appellees allege , “ Union Pacific and its consulting geologists . . . have misrep resented the extent of the threat posed by creosote waste and the DNAPL , [ 5 ] concealing the true nature of the h azard in reports to the TC EQ and communications with the public in order to obtain required permits. ” Union Pacific has “ failed 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. ”

Re garding the ne gligence claim, appellees alleg e 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 du mped 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;

4 The following appellees allege only “ property damage ” : Edwin Amos , Gloria Baptiste , Alton Berry , Robert Booker , William Cooksky , Karen Dickey , Phyllis Farr , Ronnie Johnson , Ruby Reynolds , Barry Rhodes , Ha tt ie Swint , Dale Vanwright , and Jesse Vict or

.

5 DNAPL is “ an underground plume of cre osote sludge known as a dense non
- a queo us phase liquid. ”7

3. Failing to take reasona ble steps to prevent and mitigate air, soil and water contamination caused by creosote and toxic chemi cals known to be hazardous to hum an health; 4. Failing to properly monitor and test for air, soil and water contamination caused by creosote and toxic chemic als known to be hazardous to human health; 5. Failing to notify Plaintiffs of air, soil a nd water contamina ti on caused by creosote and tox ic 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 t o human health; 7. Fail ing to disclose the full exte nt and nature of air, soil and water contamination at or near the Engelwood Rail Yard to Plaintiffs and governmental agen cies; 8. Failing to employ, train and supervise employees on the safe handling, storage, use and containment of creosote, toxic chemicals a nd waste known to be hazardous to human health; 9. Fai ling to protect Plaintiffs and the general public from the harmful e ffects of exposure to creosote and toxic chemicals; 10. Failing to prevent creosote and to xic chemicals from p ermeating ground water and cr ea ting a creosote NAPL beneath residential properties; 11. Failing to take timely and reasonable steps to contain the creosot e NAPL and mitigate the risks to human health posed by the creosote NAPL; 12. Failing to w arn of or prevent pr operty damage caused by soil
an d water contamination caused by creosote and toxic che micals known to be hazardous to human health; 13. Failing to obtain r eliable or adequate meteorological and geological surveys to ensure creosote and toxic chemicals would not contaminate air, soil and wa te r; 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; and8

15. Failing to prevent Plaintiffs and the g eneral public from coming int o cont act 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 pe r se, appellees allege that Union Pacif ic has violated several section s of the Administr ative Code that prohibit the crea tion of a nuisance or endangering the public health and welfare as the result of stori ng, processing, disp osing, or other conduct relat ed to hazardous wastes. See 30 Tex. Admi n. Code §§ 335.4, 335.1 77

. Regard ing negligent misrepresentation, appellees alle ge among other things that Union Pacific and other defendants “ made representations to governmental agenci es and Plaintiff s regarding t he n ature of the air, so il, 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 alleg e that Union Pacific and other de fendants failed to use reasonable care in “ communicating the information to governmental agencies and Plaintiffs , ” nor “ adequately and properly disclos ing ” the hazards to human health and the nature and scope of the contamina tion cause d by creosote and t ox ic chemicals. Appellees a llege that the negligent misrepresentations have

“ proximately caused Plaintiff s ’ damages. ”

Re garding fraudulent concealment , appellees allege that Union Pacific and other defendants knew of the hazar ds to human health posed by c re osote and toxic ch emicals, including the risk of di sease, cancer, and death, yet “ [t]o avoid liability and obtain opera ting permits from governmental agencies, Defendants intentionally concealed the scope and dangers associat ed with the air, soil, and9

wa te r contamination cau sed by creosote and toxic ch emicals from Plaintiffs, the
govern ment, and the general publ i c. ” Regard ing nuisance, appellees allege that Union Pacific unreasonably invaded appellees ’ interests in the private use and enjoyment of their h om es and land by knowingly c ontaminating air, soil, and water on and underneath app ellees ’ properties. Additiona lly, Uni on Pacific unreasonably interfered with rights
common t o the general public, including permitting the disc harge of cr eosote and toxic c he micals into public right o f ways.
III. A NALYSIS
Union Pacific contends that the tria l court should have dismissed each of
ap pell ees ’ claims to the extent they are “ property

- damage claims ” because they are based on or in re s ponse t o Union Pacific ’ s exercise of t he right s of free spee ch, association, and petition. Union Pacific contends tha t the TCPA doe s not exempt property

- dam age claims or any of appellees ’ claims under the fraud exception

. Appellees respond that their claims are based on or in response to U ni on Pacific ’ s contamination , not the exercise of a pro tected right , and their claims are for physical injury and fraud , which are exempted from th e TCPA.
A. Negligence, Negligence Per Se, Fraudulent Concealment, and Nuisa nce Rega rding appellee s ’ c laims for n eg ligence, negligence per se, frau dulent concealment, and nuisance , Union Pacific focuses on the global allegations contained in appellees ’ petitio n that (1) Union Pacific “ failed to dis cl ose the full extent of the contaminatio n or the known health risks p os ed to property owners and others exposed to t he c ontaminates over time ; ” and (2) “ Union Pacific and its consulting geologists . . . have misrepre sented the extent of the threat posed by creosote waste and the DNAPL , concealin g the true nature of the h aza rd in reports10

to the TCEQ and comm unications with the public in order to obtain required permits. ” Union Pacific contends that these allegati ons s how that appellees ’ claims are based on or in response to Union Pacific ’ s exerci se of the right s of free
spee ch , association, and petition.
The first global allegation is based on a failure to disclos e

— a failu re to communicate

— which does not implicate prot ected activity. See DOJO Bayhouse , 20 21 WL 605 0677, at *4

. Regarding the secon d global allegation about Uni on 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 appelle es ’ negligence, negligence per se, fraudulent concealment, and nuisance claims a re “ based on ” or

“ in response t o ” such misrepresentations. The mi srepresentation s do not form the “basis for the legal claims or the impetus fo r suit ” concerning negligence,

n egligence per se, fraudulent concealment, or nuisance. See ML Dev. , LP v. Ross Dress for Less, Inc. , No. 01

- 20

- 00773

- CV, 2022 WL 1037757 , at *4 (Tex. App.

— Houston [1st Dist.] Apr. 7, 202 2 , no pet. h. ) (reasoning that al though alleged
statements “ may have acc ompanied ” complained

- of conduct, the communications th emselves did not “ provide the basis for the legal cl ai ms or the impetus for suit ” ). Rather, the gravamen of th ese claims is Union Pacific ’s contamination o f Houston neigh borhoods with creosote and Union Pacific ’s failures to communicate regarding the scop e and dangers of the contam ination. See Sanchez , 614 S .W. 3d at 2 46 (considering the “ grav amen 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 cr eate the relationship betw ee n t he 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))). T he global allegation of joint11

misr epresentation s , i.e., comm un ica tion s , do not “ draw an adequate connection to invoke the TCPA under the amended language ” for appellees ’ claims of negligence, negligence per se, fraudulent c oncealment, and nuisance. See U ni on Pacific R .R. Co

. v. Chenier , N o. 01

- 21

- 00073

- CV, 2022 WL 5 476 42 , 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, ne gligent misrepresent ation , f rau d, and nuisance ). 6
Union Pacific ’ s issue is overruled regarding appellees ’ claims for negligence , negligence per se, fraudulent concealment, and nuisance b ecause Union Pacific failed to demonstrate that these claims are bas ed on or in response to Un io n P acific ’ s exercise of a protected right

. B. Negligent Misr epresentation
A claim f

or negligent mis re presentation includes as an element that the d efendant made a “ representation ” that conveyed false i nformation. See JPMorgan Chas e Bank, N.A. v. Orca Asset s G.P

. , 546 S.W.3d 648, 65 3 (Tex. 2018). According to their petition , a pp el lees ’ negligent misrepresentation claim is based on or in r es ponse to Union Pacific ’ s communications , i.e., making

“ r epresentations to governmental agenci es and Plaintiff s ” and “ co mm uni cating the information to governmental agencies and Plaintiffs

. ” These communications

were made in connection wit h a matter of public concer n

— “ regarding the n at ure of

6 The TCPA was amended in 2019 to narrow the categories of connections a claim c ould h ave to the exercise of a pro te cted righ t in order for a defendant to o btain a dismissal. See generally ML Dev., LP , 2022 WL 1037757 , at *2

– 3 (discussing removal o f the phrase “ relates to ” from the prior version of the TCPA that allowed dismissal if the mo vant proved that the claim w as “ based o n, relates to, or is in respons e to ” the movant ’ s exercise of a protected right)

. The amendment “ removed the broadest category of connection, thereb y requiring future TCPA movants to establish a closer nexus be tween the claims against them and th e communi cations they point to as their exercise of protected rights. ” Id. at *5.12

the air, so il, and water contamination caused by creosote and toxic chemicals and
t he ir efforts to mitigate and monitor air, soil, and water contamination caused by creosote and toxic chemicals. ” See ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 8 9 5, 901 (Tex. 2017) ( matter of public concern under prior statut ory definition included st at eme nts related to employee ’ s failure to co mplete process that would “ reduce the potential environmental , health, safety, and economic risks associated with noxious and flammable chemicals overfilling and spilling onto the ground ” ); In re Lipsky , 411 S.W. 3d 53 0, 54 2

– 43 (Tex. App

. — Fort Worth 2013 , orig. proceeding ) ( matter of p ublic concern under prior s tatutory definition included statements about the environmental ef fects of fracking and the cause of contamination of a wel l) , man d. denied , 460 S.W.3d 579 (T ex. 2015 ) ; see also Gibson v. O

ffice of Atty. Gen., State of Cal

. , 561 F.3d 920, 92 5

– 26 (9 th Cir. 2009) ( matter of public concern included statements about “ dischar ges of raw sewage into the environment and exposure of public em ployees to dangerous
conta mi na n ts ” ); Hometown Props., Inc. v. Fleming , 680 A.2d 56, 64 (R .I. 1996) ( matter of public concern included sta tements about “ potential env ironmental
cont amination ” )

. 7 Accordingly, the negligent misrepresentation claim is bas ed on or in response to Union P ac ifi c ’ s exercise of the r ight of free speech. Appelle es contend that their negligent misrepresentation claim is based on both protected and unprotected activity because their claim involves a “ failure to disclose i nformation. ” Regarding the negligent mi sr epr esentation claim, th e petition does

n ot allege a failure to disclose or communicate, but rather a failure to use

7 The TCPA was amended in 2019 to alter the definition of “ matter of public concern ” so that it more closely tracks the meanin g used in F irst Amendment jurisprudence. See T ex. Civ. Prac. & Rem. Code § 27.001(7)(B ). Compare Act of June 17, 2011, 82nd Leg., R.S., ch. 341, § 1 , 2011 Tex. Gen. Laws 961 , with Brady v. Klentzman , 515 S.W.3d 878, 884 ( Tex. 2017).13

“ reasonable care ” while disclosing. This claim is not based on a “ failure to warn

. ” Cf. See Chenier , 2022 WL 547642, at *6 ( Tex. Ap p.

— Ho us ton [1st Dist.] Feb. 24, 2022, no p et. h. )

. Appellees contend further that damages to their real properties “ simply do not logically occur as a result of a ‘ misrepresentation. ’ ” They cite no authorit y for the contention , and we have found none. See F ed . La nd Bank Ass ’ n of Tyler v. Sloan e , 825 S.W.2d 439, 442 (Tex. 1991) (damages recoverable for negligent misr epresentation include “ pecuniary loss s uffered otherwise as a c onsequence of the plaintiff ’ s reliance upon the misrepresentation ” (quoting Restat em ent (Second) of Torts § 552B) ). Ap pellees allege broadly in their petition that Union Pacific ’ s negligent misrep resentation s “ proximately caused Plaintiffs ’ damages. ” Although we view the petition in the light most favorable to t he appellees , they made n o
at tempt to l imit their negligent misrepresentation claim to only non
- property damages

. Appellees do not contend that they have met their burden to demonstrate by clear and spe cific evidence a prima facie case for each es sential element of the claim

. B ut , th eir a rguments to the trial cour t and this court raise several exceptions to the TCPA : the fraud exception and the bodily

- injury exception.
1. Fraud Exception
The T CPA provides, “ This chapter does n ot app ly to: . . . a legal action based on a common l aw fra ud claim. ” Tex . Civ. Prac. & R em. Code § 27.010(a)(12). A claim is “ based on ” common law fraud if the claim “ require[ s] proof of common law fraud as part of [its] elements. ” Baylor Scott & White v.
Pr oject Rose MSO, LLC , 633 S.W .3d 263, 28 1

– 83 , 28 8 (Tex . App.

— Tyler 2021 , pet. fi led) ( holding that claims for unjust enrichment, civil conspiracy, and aiding and abetting breach of fiduc iary duty were exempt under the fra ud exception as14

pleaded, but cla ims for tortious interference with contract, promis so ry e stoppel, quantum meruit, money had and received, and declaratory judgment were not

ex empt). Although a claim for negligent misrepresentation is similar to fraud , they are not the same. Fraud is more dif ficult to prove than negligent misrepresentatio n beca use of the ad ded element of int ent. Grant Thornton LLP v. Prospe ct High Income Fund , 314 S.W.3d 913, 921 (Tex. 2010) ; see also N. Cypress Med. Ctr. Operating Co. v. Aetna Life Ins. Co. , 898 F.3d 461, 47 4 (5 th Cir. 2018) (applying Texas law, “ The pri ma ry d ifference between fraud and neg ligent misrepresentation is that a negligent misrepresentation does not require an actual intent to defraud, only that . . . the party making the false statement acted negl igently in doing so. ” (omission in original , qu ot atio ns omitted))

. “ Negligent misre presentation is properly identified as being a claim sounding in negligence rather than fraud. ” Mileston e Props., Inc. v. Federated Metals Corp. , 86 7 S.W.2d 113, 119 (Tex. App.

— Austin 1993, no writ) (quoting Tex. Am. C or p. v . Woodbridge Joint Venture , 809 S.W.2d 299, 30 3 (Tex. App.

— Fort Worth 19 91, writ denied) ( applying tw o
- year rather than fo ur
- year limitations period to negligent misrepresentation). 8
Thus, a claim for ne gligent misrepresentation does not require proo f of

c ommon law fraud as part of its elements. A ppellee s allege in their petition that Union Pacific failed to use reasonable care in their communications, not t hat Union Pacific did so knowingly or recklessl y. As pleaded, appellees ’ negligent misreprese nt atio n claim is not exempt from the TCPA under the fraud exception

.

8 Appellee ’ s r el iance on the stray reference in Rosenthal v. Blum , 5 29 S.W.2d 102 , 104 (Tex. App.

—

Waco 1975, writ ref ’ d n.r.e.), that negligent misre presentation “ constitutes a specie of remedial fraud , ” is neither persuasive nor controlling on th e issue in this case. See id. at 102, 104

– 05 (recognizing that negligent m is rep resent atio n is a cause of action, not ing that “ scienter is not an element, ” and re versing the trial court ’ s dismissal for failure to state a claim ).15

2. Bodily

- Injury Exception Appellees alleg e in their petition that Union Pacific ’ s negl igent misrepresenta tion s proxim ately caused damages. Because some of the appellees seek damages for bo di ly injury , wrongful death, and su rvival for thei r negligen t

m isrepresentation 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 surviva l or to statements made regardin g 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

see ks 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 th e TCPA, a nd we have found non e. Th e plain language of the

s t a t ute 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 da ma ges 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 recover y of medical expenses and

c ompen sat ion for physical pain eve n t hough some of the soug ht

- after damages

“ would arguably fall outside ‘ bodily injury ’ ” )

. 9

9 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 this
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).16

However, Union Pacific notes that thirteen of the appellees allege claims only for property damages and n ot personal injuries. S ee supra note 4

. Appellees do not disp ute this contention but instead suggest that the ex ception should be applied to the entire lawsuit because some of the ap pellees seek damages for bodily injury or wrongful death

. Contrary to a pp ellees ’ argument, “ dismissal u nder the TCPA is determined not by the action as a whole but 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, 122 (Tex. App.

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

. T hus, thirteen of the appel lees can not show that the bodily

- in jury exc eption applies to their negligent misrepresentation claim.

Because thirteen of the appellees failed to meet their burden under the TCPA, the trial court erred by not dismissing their ne gl igent misrepresentation claim

. C. Discovery Appellees note that they asked the trial court to continue the hearing on Union Pac ific ’ s motion to dismiss and permit limited discover y. Appellees ask thi s

cour t to “ order [the trial court] to rule on Appellees ’ r equest fo r continuance and limited disco very. ”
A ssuming without deciding that this court would have jurisdiction in an interlocutory appeal from the denial of a motion to dis miss under the TCPA to address di scovery issues , 10 the record does not show tha t appellees objected to the

10 This court lac ks jurisdiction to rev iew an interlocutory order unless a statute specifically authorizes an exception to the general rule that appeals may be taken only from final judgments. Qwest Commc’ns Corp. v. AT&T Corp. , 24 S.W.3d 3 3 4 , 336 (Tex. 2000). We have ju risdiction to review a trial court’s order that “denies a motion to dismiss filed under Section 27.003,” see Tex. Civ. Prac. & Rem. Code § 51.014(a)(12), not necessarily a failure to rule on a request for continuance or disc o v ery under Section 27.006. The interlocuto ry appeal statute is17

trial court ’ s refusal to rule on its request s

. Thus, no error is preserved. See Goodchild v. Bombardier

- Rotax GMBH Motorenfabrik , 9 79 S.W.2d 1, 6 (Tex. App.

— Houston [14th Dist.] 1998, pet. denied) (no error preserved for issue

a lleg ing t hat trial court failed to ru le on request for juris dictional discovery). Accordingly, we render no opinion on appel lees ’ request for discovery.
IV. C ONCLUSION Having sustained Union Pacific ’ s issue in part, we reverse the part of t he trial court ’ s o rd er denyin g Union Paci fic ’ s mot ion to dis miss the negligent misrep resentation c laim alleged by the following appel lees: Edwin Amos , Gloria Baptiste , Alton Berry , Robert Booker , William Cooksky , Karen Dickey , Phyllis Farr , Ronnie Johnson , Ruby Reynolds , Ba rr y Rhodes , Hattie Swint , Dale Vanwright , and Jesse Victor

. The remainder of the trial court ’ s order is affirmed. We remand the case for proceedings consistent with this opinion. See Cox Media Grp., LLC v. Joselevitz , 524 S.W.3d 850, 865 (Tex. App.

— Houst on [14th Di st.] 2017, no pet.) ; see also T ex. Civ. Prac. & Rem. Code § 27.009(a).

/s/ K en Wi se J ustice

Panel con si sts of Justices Wise, Bourliot , and Zimmerer

.

strictly construed as a narrow exception to the general rule of appealability. See Tex. A & M Univ. Sys. v. Koseoglu , 233 S.W.3d 835, 841 (Tex. 2007)

.