MARTHA RENEE LESLEY-MCNIEL AND ABUNDANTIA B. G., Appellants
CP RESTORATION INC. AND STEPHEN KAYE MCNIEL, Appellees
Appeal from the 190th District Court Harris County, Texas
Trial Court Case No. 2018-43521
consists of Justices Keyes, Higley, and Landau.
BETH LANDAU JUSTICE.
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. 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
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.
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.
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
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."
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.
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).
Citizen's Participation Act
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. § 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 ...