Summary
The Texas Court of Appeals, Third District, affirmed the denial by operation of law of Laszlo Herczeg’s motion to dismiss under the Texas Citizens Participation Act. The court held that Herczeg failed to show that 5005 SSR, LLC’s declaratory-judgment action concerning an easement was based on, related to, or in response to his exercise of the rights of free speech or petition. The court also concluded that any error concerning treatment of his Rule 91a arguments as a separate motion was harmless.
Topics
Practice areas
Questions Presented
- Whether Herczeg established under the TCPA's first step that 5005's declaratory-judgment action was based on, related to, or in response to Herczeg's exercise of the rights of free speech or petition.
- Whether the trial court improperly fractured Herczeg's filing into a TCPA motion to dismiss and a separate Rule 91a motion, and whether any such error caused reversible harm.
Holdings
- Herczeg failed to establish by a preponderance of the evidence that 5005's suit was based on, related to, or in response to his exercise of the right of free speech or the right to petition.
- The court did not grant relief on Herczeg's fracturing argument. Any error in treating the Rule 91a reference as a separate motion did not cause reversible harm, and an order denying a Rule 91a motion is not independently appealable in this interlocutory appeal.
Key quotations
“"[T]he unique language of the TCPA directs courts to decide its applicability based on a holistic review of the pleadings."” (at 6)
“The movant’s activities “that are not a factual predicate” for the nonmovant’s claims “are simply not pertinent to the inquiry.”” (at 7)
Factual background
The dispute concerned a 1954 recorded easement over Herczeg's property that granted access for road purposes and the right to work and improve the road. 5005 SSR alleged that Herczeg interfered with its use of the easement by restricting access with locks and gates and by confronting surveyors and engineers working on 5005's property. Herczeg argued that the suit was based on his communications with City of Austin officials opposing or commenting on 5005's development plans. The court concluded that 5005's claims were instead factually predicated on the existence and scope of the easement and alleged interference with access.
Procedural history
5005 SSR, LLC sued Herczeg under the Uniform Declaratory Judgments Act seeking a declaration concerning a recorded easement or, alternatively, a prescriptive easement. Herczeg filed a TCPA motion to dismiss and also referenced Texas Rule of Civil Procedure 91a. The trial court denied the Rule 91a motion in a written order and denied the TCPA motion from the bench; because no written TCPA order was entered within the statutory period, the TCPA motion was denied by operation of law. Herczeg brought an interlocutory appeal.