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Perlman v. EKLS Firestopping & Construction, LLC

Court of Appeals of Texas, Fifth District, Dallas

June 28, 2019


          On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-04381

          Before Justices Bridges, Schenck, and Pedersen, III



         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 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.


         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) 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. 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 non-movant 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, 894 (Tex. 2018); Youngkin, 546 S.W.3d at 680. ...

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