Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 101st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-04381
Justices Bridges, Schenck, and Pedersen, III
L. BRIDGES JUSTICE
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. 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.
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,  negotiated and
signed the contract. 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.
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."
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).
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.
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).
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.).
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. ...