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Lesley-McNiel v. CP Restoration Inc.

Court of Appeals of Texas, First District

August 13, 2019


          On Appeal from the 190th District Court Harris County, Texas Trial Court Case No. 2018-43521

          Panel consists of Justices Keyes, Higley, and Landau.



         Martha Renee Lesley-McNiel and Abundantia B.G. (collectively, Lessors) appeal the denial of their motion, filed pursuant to the Texas Citizen's Protection Act (TCPA), to dismiss Stephen Kaye McNiel and CP Restoration Inc.'s (collectively, Lessees) claims against them.[1] In three issues, Lessors argue that the trial court erred in denying their motion because (1) they carried their burden to show that this suit is based on communications protected by the TCPA; (2) Lessees failed to show that this suit is exempted from the TCPA's dismissal procedures; and (3) Lessees failed to come forward with sufficient evidence to support their claims.

         We affirm.


         This is a commercial lease dispute between Renee and Stephen McNiel. While married, the couple created and jointly owned Abundantia which owed and acted as landlord of their multi-tenant commercial building located on Emancipation Avenue in Houston. On January 1, 2015, Stephen McNiel's separately owned company, CP Restoration, entered into a five-year lease agreement (the Lease) with Abundantia for a suite (the Property) in the building.

         The McNiels divorced in May 2018, and Renee was awarded full ownership of Abundantia. Shortly thereafter, on June 16, Lessors sent a "Notice of Default and Demand Letter" (Demand Letter) to Lessees, stating that they were in default for (1) failing to pay rent on the first day of each month; (2) changing the locks and temperature controls; (3) using shared tenant space; (4) occupying and altering the garage; (5) undertaking construction on the premises; and (6) subletting the Property.

         After receiving a response from Lessees denying these allegations, Lessors followed up with a "Termination of Lease and Notice of Eviction" letter (Termination Letter), terminating the Lease and demanding that Lessees vacate by June 30.

         On June 29-the day before the eviction date noticed in the Termination Letter-Lessees filed this suit, asking for a temporary restraining order, temporary and permanent injunctions, damages for breach of contract and tortious interference, and a declaratory judgment declaring that the Lease is not terminated and that CP Restoration has a possessory right to occupy it unless and until a formal eviction proceeding determines otherwise. Lessees' petition included allegations that Lessors' attempt to terminate the Lease was "for petty, personal reasons" and that Renee's "own personal conduct" caused many of Lessees' "technical defaults," including her "repeatedly set[ting] the thermostat such that the temperature . . . was around or over 80 degrees" and "entering [the Property] and removing items without [Lessee's] permission."

         After a hearing, the trial court signed a temporary order restraining Lessors from denying Lessees access to the Property "until such time as" they obtain a writ of possession in an eviction proceeding "to be filed" by Lessors on July 2. Several days later, Lessors filed an eviction petition with the Harris County Justice of the Peace court. On July 17, 2018, that court dismissed the petition for lack of jurisdiction. Lessors appealed the dismissal to the County Court at Law.

         While the eviction suit was on appeal in the county court, Lessors filed a motion to dismiss pursuant to the TCPA. See Tex. Civ. Prac. & Rem. Code § 27.003 (permitting party to file motion to dismiss in certain cases implicating the exercise of rights of free speech, association, or petition). After Lessees responded and a hearing was held, the trial court denied the motion to dismiss without specifying the grounds on which it relied and awarded the Lessees attorneys' fees and costs. Lessors filed this interlocutory appeal. See id. § 51.014(a)(12) (authorizing interlocutory appeal of order denying motion to dismiss filed under TCPA section 27.003).

         Texas Citizen's Participation Act

         The TCPA was enacted "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government" against infringement by meritless lawsuits. Id. ยง 27.002. To achieve this purpose, the TCPA defines "a suspect class of legal proceedings that are deemed to implicate free expression, making those proceedings subject to threshold testing of potential merit, and compelling rapid dismissal-with mandatory ...

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