Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-24-00401-CV
AMERISURVEYORS, LLC,
Appellant
v.
LA BELLA MILLER PROPERTIES, LLC,
Appellee
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2023CI17484
Honorable Laura Salinas, Judge Presiding
Opinion by: Rebeca C. Martinez, Chief Justice
Sitting: Rebeca C. Martinez, Chief Justice
Lori I. Valenzuela, Justice
Adrian A. Spears II, Justice
Delivered and Filed: September 23, 2026
AFFIRMED
Appellee La Bella Miller Properties, LLC (“LBMP”) sued appellant AmeriSurveyors, LLC
(“AmeriSurveyors”) for declaratory judgment and civil conspiracy, among other claims.
AmeriSurveyors filed a motion to dismiss these two claims pursuant to the Texas Citizens
Participation Act (“TCPA”). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011.
Alternatively, AmeriSurveyors sought dismissal under Chapter 150 of the Texas Civil Practice and
Remedies Code. See id. §§ 150.001–.004. The trial court denied AmeriSurveyors’ motion, and it
04-24-00401-CV
then filed this interlocutory appeal. We affirm the trial court’s order denying AmeriSurveyors’
motion.
I. BACKGROUND 1
This appeal arises from a boundary dispute. LBMP owns Lots 1 and 2 in the 1891
Huberich’s Subdivision in San Antonio. In 1900, a house was built on Lot 2, and in 1936, a
commercial building was built on neighboring Lot 3. According to LBMP, the commercial
building encroaches onto Lot 2 by 1.9 feet.
On June 28, 2022, De Moment, LLC (“De Moment”) purchased Lots 3 and 4. Prior to
purchase, AmeriSurveyors prepared a “Final ‘As-Built’ Survey” of Lots 3 and 4, which was dated
June 14, 2022. The survey shows a 0.1 foot encroachment of the commercial building onto Lot 2
and a larger encroachment going the other way — by the house onto Lot 3 — of 0.3 feet and a
“neighbor roof overhang” of the house onto Lot 3 of 0.9 feet. LBMP alleges that De Moment’s
“control person and alter ego,” Gerardo Ituarte Hesles, instructed AmeriSurveyors to prepare
another survey. According to LBMP:
Ituarte was aware of the AmeriSurveyors survey at the time of his purchase of the
property. Ituarte told AmeriSurveyors to go back and try again because he was not
satisfied with the slight amount of the encroachment shown on the survey.
AmeriSurveyors did what it was told and produced another FINAL “AS-BUILT”
SURVEY, also dated June 14, 2022. This survey manipulated the location of pins
so as to shift the boundary line between Lots 2 and 3 further to the east, away from
the vacant building. The change eliminated the encroachment by the building onto
Lot 2, with about a foot to spare, increased the encroachment of the Lot 2 house
onto Lot 3 to .8 feet at the northwest corner of the house, and increased the
“neighbor roof overhang” to 2.1–2.7 feet. The survey, modified as demanded by
Ituarte, did not indicate that it was a revised or amended version of an earlier survey,
which would have been proper protocol. There was a space to indicate that the
survey was a revision, and to state the date of the revision — both were left blank[.]
1
We draw our factual background from LBMP’s second amended petition and the exhibits attached to AmeriSurveyors’ motion to dismiss, its supplement to the motion, and the parties’ briefing on the motion. See id. § 27.006(a).
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(Emphasis in original). Additionally, LBMP contends that the commercial building on Lot 3,
is in extreme disrepair, is not structurally sound, is a public and private nuisance
and eyesore on a major city street, is a fire hazard, and presents a danger to
neighbors and the public. Further, the building has a history of attracting unlawful
activity and of not being secured from entry. The structure cannot be repaired
without a substantial reconstruction that replaces most or all of the structure. The
building should be demolished and removed from Lot 2 and 3.
On these allegations, LBMP stated claims against De Moment and AmeriSurveyors for declaratory
judgment, injunctive relief, public and private nuisance/nuisance per se, trespass, and civil
conspiracy.
LBMP filed its original petition in August 2023, but did not include with the petition an
affidavit of a licensed professional land surveyor. On September 11, 2023, LBMP filed a “Motion
for Non-Suit,” as to its case against AmeriSurveyors. Three days later, the trial court signed an
order of non-suit, dismissing LBMP’s case against AmeriSurveyors without prejudice. The next
day, LBMP filed a first amended petition, attaching to the petition an affidavit of a licensed
professional land surveyor, Lemuel T. Sinclair. On September 20, 2023, LBMP filed a second
amended petition — currently its “live” petition — adding the resume of Sinclair. In October
2023, LBMP filed an “Amended Certificate Of Merit,” consisting of an amended affidavit by
Sinclair.
Later in October, AmeriSurveyors filed a motion to dismiss LBMP’s claims against it for
civil conspiracy and declaratory judgment, pursuant to the TCPA and, alternatively, Chapter 150
of the Texas Civil Practice and Remedies Code. After holding a hearing, the trial court dismissed
LBMP’s claims against AmeriSurveyors with prejudice in January 2024. Three months later,
LBMP filed a motion to reconsider, directing the trial court to our opinion in Studio E. Architecture
& Interiors, Inc. v. Lehmberg, 690 S.W.3d 725 (Tex. App.—San Antonio 2024), aff’d, No. 24-0286, 2026 WL 1500909 (Tex. May 29, 2026), which we had issued in February 2024. The trial
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court held a hearing on the matter, and thereafter signed an order granting the motion to reconsider
and denying AmeriSurveyors’ motion to dismiss.
AmeriSurveyors timely appealed from this order. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 51.014(a)(12) (authorizing interlocutory appeal from denial of TCPA motion); id. § 150.002(f)
(authorizing interlocutory appeal from denial of Chapter 150 motion). We abated
AmeriSurveyors’ appeal pending the Texas Supreme Court’s decision in Studio E. Architecture &
Interiors, Inc. v. Lehmberg, No. 24-0286, 2026 WL 1500909 (Tex. May 29, 2026). After the
supreme court affirmed our Studio E. decision, we reinstated AmeriSurveyors’ appeal. See id. at
*1. In four issues, AmeriSurveyors contends the trial court erred by denying its motion to dismiss.
II. THE TEXAS CITIZENS PARTICIPATION ACT
We begin our discussion with the TCPA because AmeriSurveyors seeks greater relief
through its TCPA issues than through its Chapter 150 issues. See Huynh v. Blanchard, 694 S.W.3d
648, 690 (Tex. 2024) (addressing argument that would provide greater relief first); Bradleys’ Elec.,
Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (“Generally, when a party presents
multiple grounds for reversal of a judgment on appeal, the appellate court should first address those
points that would afford the party the greatest relief.”). In two issues, AmeriSurveyors contends
that the TCPA applies to LBMP’s claims for declaratory judgment and civil conspiracy. In another
issue AmeriSurveyors broadly contends that the trial court erred by denying its motion to dismiss
under the TCPA. AmeriSurveyors requests that we reverse the trial court’s order, render judgment
dismissing LBMP’s claims for declaratory judgment and civil conspiracy against AmeriSurveyors,
and remand for consideration of an award of attorney’s fees. See TEX. CIV. PRAC. & REM. CODE
ANN. § 27.009(a) (authorizing award of attorney’s fees following dismissal pursuant to the
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TCPA). 2 For the reasons that follow, we hold LBMP’s claims for declaratory relief and civil
conspiracy do not fall within the scope of the TCPA, and, therefore, we overrule AmeriSurveyors’
TCPA issues.
A. Standard of Review and Applicable Law
The TCPA’s purpose “is 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.” Id.§ 27.002. Pursuant to the TCPA, a party may file a motion
to dismiss a legal action if the “legal action is based on or is in response to [that] party’s exercise
of the right of free speech, right to petition, or right of association.” Id. § 27.003(a).
A motion to dismiss pursuant to the TCPA is resolved under a burden-shifting framework.
See id. §§ 27.003(a), 27.005(b)–(d); see also Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex.
2018) (describing three-step analysis). First, the movant must demonstrate that the nonmovant’s
legal action is based on or is in response to the movant’s exercise of a right to associate, speak
freely, or petition. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). If the movant fails to satisfy
its initial burden, the motion can be denied on that basis. See McLane Champions, LLC v. Hous.
Baseball Partners LLC, 671 S.W.3d 907, 914 (Tex. 2023) (concluding TCPA did not apply and
affirming dismissal of claims). However, if the movant meets its initial burden, the nonmovant
then must establish “by clear and specific evidence a prima facie case for each essential element”
of its claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). If the nonmovant satisfies that
requirement, the burden shifts back to the movant to establish “an affirmative defense or other
grounds on which the moving party is entitled to judgment as a matter of law.” Id. § 27.005(d).
2
AmeriSurveyors does not request a remand for consideration of attorneys fees with respect to Chapter 150.
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We review de novo whether the parties have met their respective TCPA burdens. See Dall.
Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). Whether the TCPA applies is an
issue of statutory interpretation that we also review de novo. Youngkin, 546 S.W.3d at 680. We
construe the TCPA “liberally to effectuate its purpose and intent fully.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.011(b).
B. Discussion
Our analysis begins and ends with the first step. AmeriSurveyors argues that LBMP’s
declaratory judgment and civil conspiracy claims are “legal action[s] based on or [are] in response
to” AmeriSurveyors’ “exercise of the right of free speech [and] right to petition.” Id. § 27.003(a). 3
LBMP does not dispute that its declaratory judgment and civil conspiracy claims are “legal
actions,” as that term is defined, see id. § 27.001(6), or that these claims are “based on or [are] in
response to” AmeriSurveyors’ land surveys. See id. § 27.003(a). However, for the reasons that
follow, we hold LBMP’s claims are not based on or in response to an “exercise of the right of free
speech [or] right to petition,” and, therefore, do not come within the scope of the TCPA. See id.
1. Exercise of the Right of Free Speech
The TCPA defines “Exercise of the right of free speech” as “a communication made in
connection with a matter of public concern.” Id. § 27.001(3). LBMP does not dispute that
AmeriSurveyors’ land surveys are “communications,” as defined by the TCPA. See id. §
27.001(1). 4 Instead, LBMP disputes that the land surveys were made “in connection with a matter
of public concern.” Id. § 27.001(3).
3
AmeriSurveyors does not contend that LBMP’s claims implicate an “exercise of the right of association” or concern conduct described by section 27.010(b), which independently could bring the claims within the scope of the TCPA. See id. §§ 27.001(2), .003(a), .010(b).
4
We generally use the plural, “surveys,” to refer to AmeriSurveyors land survey(s) dated June 14, 2022, because LBMP alleges its claim in terms of “surveys.” However, generally, AmeriSurveyors uses the singular “survey” when discussing LBMP’s claims. Our legal analysis is the same regardless of whether we consider both surveys or only the second of the two dated June 14, 2022, so we adopt the more expansive “surveys.”
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A “matter of public concern,” under the TCPA, means, among other things, “a matter of
political, social, or other interest to the community” or “a subject of concern to the public.” Id. §
27.001(1)(7)(B)–(C). AmeriSurveyors argues that the building on Lot 3 — the 1936 commercial
building — is a matter of public concern because LBMP has alleged that the building constitutes
a public nuisance. From there, AmeriSurveyors argues that “[b]y seeking to recover public
nuisance damages in its civil conspiracy claim against AmeriSurveyors for making the land survey,
LBMP’s pleadings are necessarily asserting that the land survey was made ‘in connection with’
the public nuisance.” Further, AmeriSurveyors asserts that “Sinclair, solidif[ied] the land survey’s
connection to matters of public concern in his Amended Certificate of Merit” by alleging that
AmeriSurveyors and its staff violated state regulations that apply to land surveyors.
To determine whether LBMP’s claims involve a “matter of public concern,” we look to its
pleading, which is the “best and all-sufficient evidence of the nature of the action.” Hersh v.
Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (citation omitted); see TEX. CIV. PRAC. & REM. CODE
ANN. § 27.006(a) (allowing consideration of pleadings as TCPA evidence). We cannot “blindly
accept” attempts by the movant to characterize the nonmovant’s claims as implicating protected
expression. Sloat v. Rathbun, 513 S.W.3d 500, 504 (Tex. App.—Austin 2015, pet. dism’d).
Instead, we view the pleading in the light most favorable to the nonmovant. Youngblood v.
Zaccaria, 608 S.W.3d 134, 137 (Tex. App.—San Antonio 2020, pet. denied). We consider
dismissal on a claim-by-claim basis. 3D Ventures Cap., LLC v. Toscano, No. 04-24-00481-CV,
2025 WL 1949559, at *6 (Tex. App.—San Antonio July 16, 2025, no pet.) (mem. op.); see Doe v.
Cruz, 683 S.W.3d 475, 492 (Tex. App.—San Antonio 2023, no pet.).
LBMP’s petition alleges that the 1936 commercial building constitutes a public nuisance,
and, by its lawsuit, it seeks to recover all actual damages, including “the cost of abating the
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nuisance (removal of both the vacant building and the spite fence).” 5 However, allegations that
the building is a nuisance pertain to LBMP’s claim for public and private nuisance/nuisance per
se, which AmeriSurveyors did not contest through its motion to dismiss. This nuisance claim
concerns De Moment’s “failure to demolish and remove the dilapidated building,” and the claim
ties to LBMP’s request for “cost of abating the nuisance.” However, this nuisance claim is beyond
the scope of our review because it was not challenged. See 3D Ventures, 2025 WL 1949559, at
*6; Perales v. Newman, No. 02-23-00095-CV, 2023 WL 5615893, at *15 (Tex. App.—Fort Worth
Aug. 31, 2023, pet. denied) (mem. op.) (“[In TCPA review], we disregard as irrelevant any factual
allegations that are not a factual predicate for the claims.”).
As to the civil conspiracy claim, which AmeriSurveyors has challenged, we do not construe
the claim to request “public nuisance damages,” as AmeriSurveyors asserts. LBMP alleges its
civil conspiracy claim as follows:
19. Civil Conspiracy. De Moment, AmeriSurveyors, and their agents and
employees, conspired to produce a false and inaccurate survey or surveys for the
purpose of bolstering De Moment’s claims that the vacant building did not encroach
on Lot 2, and that instead the home on Lot 2 encroached on Lot 3. Such persons,
working in concert, engaged in intentional torts and/or other illegal acts in order to
accomplish an improper purpose. . . . The intentional creation of an inaccurate and
misleading land survey, and use of the survey to surreptitiously replace and “ghost”
an earlier survey deemed unsatisfactory by a client, in order to assist the client in a
boundary dispute, is intentionally tortious conduct and a fraudulent concealment of
writing and forgery under Texas Penal Code sections 32.47(a) and
32.21(a)(1)(A)(ii). . . . Based on these and other unlawful acts, the Defendants
should be held jointly and severally liable for all actual damages their acts and
conduct caused Plaintiff to suffer.
Viewed in the light most favorable to LBMP, its request for “actual damages” refers only to those
actual damages caused by the alleged acts and conduct mentioned in the immediately preceding
sentences — “produc[tion of] a false and inaccurate survey or surveys,” “creation of an inaccurate
5
LBMP characterizes a fence Ituarte built along the disputed boundary as a “spite fence.”
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and misleading land survey,” and “use of the survey to surreptitiously replace and ‘ghost’ an earlier
survey.” See Youngblood, 608 S.W.3d at 137. We do not read LBMP’s civil conspiracy claim to
seek the recovery of “public nuisance damages” because LBMP does not specifically assert that it
seeks “public nuisance damages” by this claim, and the civil conspiracy claim does not concern a
public nuisance. 6 In short, we cannot accept AmeriSurveyors’ premise that LBMP seeks “to
recover public nuisance damages in its civil conspiracy claim against AmeriSurveyors for making
the land survey.” Consequently, we cannot accept AmeriSurveyors’ conclusion that “LBMP’s
pleadings are necessarily asserting that the land survey was made ‘in connection with’ the public
nuisance.”
Instead, we construe LBMP’s civil conspiracy claim to generally allege that
AmeriSurveyors’ land surveys were wrongfully made in connection with a private boundary
dispute. LBMP’s declaratory judgment claim likewise asserts that the surveys incorrectly describe
a boundary between neighboring private properties. 7 Thus, as alleged, the communications — the
land surveys — relate only to a private boundary dispute.
6
“A public nuisance is a condition that amounts to ‘an unreasonable interference with a right common to the general public.’” Jamail v. Stoneledge Condo. Owners Ass’n, 970 S.W.2d 673, 676 (Tex. App.—Austin 1998, no pet.) (quoting Restatement (Second) of Torts § 821B(1) (1979)). As just discussed, LBMP’s civil conspiracy claim seeks actual damages flowing from “acts and conduct,” not from a “condition.” Additionally, LBMP’s civil conspiracy claim generally concerns creation of land surveys, and it alleges nothing about interference with a right common to the general public.
7
In its appellate brief, AmeriSurveyors does not discuss LBMP’s declaratory judgment claim in connection with an “exercise of the right of free speech.” See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), .003. However AmeriSurveyors discusses the declaratory judgment claim in sections concerning “exercise of the right to petition,” which we consider below. Id. §§ 27.001(4), .003. LBMP’s declaratory judgment claim is as follows:
15. Declaratory Judgment: Plaintiff asks the Court to declare, pursuant to the Texas Uniform
Declaratory Judgments Act (TUDJA) that (a) the boundary line between Lots 2 and 3 is correctly
described in the surveys prepared by Sinclair Land Surveying; (b) De Moment’s vacant building
located on Lot 3 encroaches on Lot 2; (c) the surveys prepared by AmeriSurveyors are incorrect and
fail to correctly describe the location of the boundary; and (d) Plaintiff is entitled to removal of the
building from its property. TUDJA § 37.004(c). The surveys prepared by AmeriSurveyors constitute
a cloud on Plaintiff’s title, and Plaintiff seeks an order in law and/or equity that states that the surveys
are incorrect and do not comply with applicable professional surveying standards. Id. § 37.011
(authorizing supplemental relief).
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The land surveys do not satisfy the definition of “exercise of the right of free speech”
because the TCPA requires that “the communications themselves must relate to a matter of public
concern,” but the surveys relate only to a matter of private concern. Goldberg v. EMR (USA
Holdings) Inc., 594 S.W.3d 818, 828 (Tex. App.—Dallas 2020, pet. denied) (emphasis added); see
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7); McLane Champions, 671 S.W.3d at 916
(citing Goldberg approvingly). Although the 1936 building may have some relevance to the public
if it is unsound or hazardous, the parties’ boundary dispute does not. See McLane Champions, 671
S.W.3d at 918–19 (explaining that financial loss associated with purchase agreement was relevant
only to parties to the agreement, even though purchase agreement concerned the Houston Astros).
Sinclair’s Amended Certificate of Merit does not alter our determination that the surveys
solely regard a matter of private concern. Sinclair asserts in his affidavit that AmeriSurveyors and
its staff have “a professional duty to the public” and that “they failed to protect the public interest
[and] endangered the property and welfare of the public” by preparing the surveys. Sinclair cites
specific state regulations that he contends AmeriSurveyors and its staff violated. 8 Based on these
alleged violations of professional responsibilities to the public, AmeriSurveyors asserts TCPA
protection. 9
The surveys’ connection, if any, to matters of public concern based on alleged violations
of professional responsibilities through creation of the surveys is too attenuated to satisfy the
TCPA’s requirements. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), (7), .003(a); cf.
McLane Champions, 671 S.W.3d at 915–16 (“[N]ot every communication related somehow to one
8
These are: 22 TEX. ADMIN. CODE § 138.37(a)(1) (titled “Sealing Misconduct”); id. § 138.55(b) (titled “Surveyors Shall Protect the Public”); id. § 138.57(a) (titled “Surveyors Shall Be Objective and Truthful”); id. § 138.59(c) (titled “Surveyors’ Actions Shall Be Competent”); id. § 138.63(a), (b) (titled “Surveyors’ Responsibility to the Profession”). 9
To be clear, AmeriSurveyors contests LBMP’s allegations but asserts TCPA applicability based on the allegations. Cf. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018) (emphasizing TCPA review does not resolve whether allegations are valid).
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of the broad categories set out in section 27.001(7) always regards a matter of public concern.”
(quoting Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 137 (Tex. 2019)).
AmeriSurveyors essentially contends that the TCPA “communications” — the land surveys — are
themselves matters of public concern; however, the TCPA requires that the communications must
be “made in connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN. §
27.001(3) (emphasis added)); see also id. 27.001(7) (“‘Matter of public concern’ means a
statement or activity regarding . . . (C) a subject of concern to the public.” (emphasis added)). In
other words, the TCPA protects persons who “speak on matters of public concern from retaliatory
lawsuits that seek to intimidate or silence them,” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015)
(emphasis added). But it does not, as written, protect persons whose private speech itself becomes
a matter of public concern because the speech allegedly violates professional obligations owed to
the public. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), (7); cf. Hayman v. Khan, 693
S.W.3d 444, 452 (Tex. App.—Houston [14th Dist.] 2023, no pet.) (holding claims based on an
employer’s racially offensive statements were not made in connection with a matter of public
concern, although racism generally is a matter of public concern); Reed v. Centurion Terminals,
LLC, No. 05-18-01171-CV, 2019 WL 2865281, at *4 (Tex. App.—Dallas July 3, 2019, pet.
denied) (mem. op.) (“We will not read the [TCPA] to equate an allegation of giving a client an
unfair and unethical advantage in a lawsuit by disclosing attorney-client privileged information
with protected expression that encourages judicial review.”).
In sum, we hold that the land surveys were not “made in connection with a matter of public
concern,” such that LBMP’s claims for declaratory judgment and civil conspiracy could fall within
the scope of the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3), (7), .003(a);
McLane Champions, 671 S.W.3d at 919.
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2. Exercise of the Right to Petition
Alternatively, AmeriSurveyors contends that LBMP’s declaratory judgment and civil
conspiracy claims fall within the scope of the TCPA because they are based on or are in response
to AmeriSurveyors’ right to petition. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(4),
.003(a).
The TCPA defines “exercise of the right to petition” through numerous subsections. See
id. § 27.001(4). AmeriSurveyors contends that only subsection (4)(C) is satisfied: “‘Exercise of
the right to petition’ means . . . a communication that is reasonably likely to encourage
consideration or review of an issue by a legislative, executive, judicial, or other governmental body
or in another governmental or official proceeding.” Id. § 27.001(4)(C). AmeriSurveyors asserts:
“A communication is ‘reasonably likely to encourage consideration or review of an issue’ by a
governmental body if the communication bolsters or otherwise supports another party’s right to
seek legal relief or legal redress.” AmeriSurveyors directs us to LBMP’s petition, which alleges:
“De Moment, AmeriSurveyors, and their agents and employees, conspired to produce a false and
inaccurate survey or surveys for the purpose of bolstering De Moment’s claims that the vacant
building did not encroach on Lot 2, and that instead the home on Lot 2 encroached on Lot 3.”
AmeriSurveyors also argues:
[A]lternatively, even if the land survey were not enough by itself to be “reasonably
likely to encourage” litigation, the unique facts of this case . . . establish that the
whole point of the land survey was to force litigation. . . .
LBMP’s allegations — that AmeriSurveyors conspired with De Moment to
fabricate a claim to LBMP’s property, and falsified a land survey so that De
Moment could effectively steal LBMP’s property — do not support that
AmeriSurveyors’ land survey encouraged private settlement. . . . Rather, such
allegations support that the land survey was intended to create or further a boundary
dispute, which actually has resulted in judicial review of that boundary dispute.
(Emphasis in original).
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Few appellate cases have construed subsection (4)(C) as it pertains to “a communication
that is reasonably likely to encourage consideration or review of an issue by a . . . judicial . . .
body.” Id. The three cases AmeriSurveyors cites for the proposition that a communication suffices
if it “bolsters or otherwise supports another party’s right to seek legal relief or legal redress,” do
not suggest such a sweeping rule. AmeriSurveyors first cites Consultants in Pain Med., PLLC v.
Ellen Boyle Duncan, PLLC, 690 S.W.3d 739 (Tex. App.—San Antonio 2024, pet. denied), which
determined TCPA applicability under definitional subsections (4)(A)(ii)–(iii) and (4)(B), not
(4)(C). See id. at 752, 756. In Consultants, the movants’ communication did more than “bolster
or otherwise support” the nonmovants’ claim; the communication alleging malfeasance was
submitted directly to the entity authorized to review the matter. See id. at 749, 754–56, 758 (letter
alleging active avoidance of legal responsibilities to Medicare payors sent to entity responsible for
reviewing Medicare claims). Likewise, in Saks & Co., LLC v. Li, 653 S.W.3d 306 (Tex. App.—
Houston [14th Dist.] 2022, no pet.), the communication the TCPA movants submitted to police
was the basis for the nonmovant’s defamation and malicious prosecution claims. Id. at 310.
Furthermore, TCPA applicability under subsection (4)(C) was not contested. Id. at 314–15. Last,
AmeriSurveyors cites Guardianship of Workman, 670 S.W.3d 414 (Tex. App.—Eastland 2023,
pet. denied), which concerned a communication that did more than “bolster” or “support.” In
Workman, the TCPA movant sent a letter to two persons alleging that a contract signed on behalf
of their incapacitated sister was invalid and fraudulent. Id. at 419–20. The letter provided a legal
opinion (the contract was “likely invalid” due to “fraudulent[] induce[ment]”), stated that the
sender had retained an attorney to represent the letter recipients, and requested a meeting with the
recipients to “discuss various options to move forward.” See id. at 420.
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To determine whether the land surveys are “communication[s] that [are] reasonably likely
to encourage consideration or review of an issue by a . . . judicial . . . body,” we must construe the
statutory language. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4)(C); see Walgreens v.
McKenzie, 713 S.W.3d 394, 399 (Tex. 2025); Youngkin, 546 S.W.3d at 680. “We construe statutes
according to their plain language, consider them as a whole, and presume that the Legislature
chooses a statute’s language with care, including each word chosen for a purpose, while
purposefully omitting words not chosen.” Walgreens, 713 S.W.3d at 399 (citation omitted).
“Further, we give undefined terms in a statute their ordinary meaning unless a different or more
precise definition is apparent from the term’s use in the context of the statute.” Id. (citation
omitted).
“Communication” is defined broadly by the TCPA, and it is undisputed that the surveys
are “communications,” as defined by the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. §
27.001(1) (“‘Communication’ includes the making or submitting of a statement or document in
any form or medium, including oral, visual, written, audiovisual, or electronic.”). However,
importantly, AmeriSurveyors does not contend that anything other than the surveys are TCPA
“communications.” Because “excise of the right to petition” means “a communication that is
reasonably likely to encourage consideration or review by a . . . judicial . . . body,” id. §
27.001(4)(C), we cannot, as AmeriSurveyors requests, look beyond the only communication at
issue “if the land survey [is] not enough by itself.” 10
10
Furthermore, the fact that litigation resulted does not establish TCPA applicability because a movant “will not satisfy her burden to demonstrate applicability of the TCPA by simply alleging post hoc ergo propter hoc.” Flatt v. Tornow, No. 01-24-00901-CV, 2026 WL 1752352, at *3 (Tex. App.—Houston [1st Dist.] June 18, 2026, pet. filed) (citation omitted); see Post Hoc Ergo Propter Hoc, BLACK’S LAW DICTIONARY (12th ed. 2024) (translating phrase from Latin as “after this, therefore resulting from it”).
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When properly focused on the surveys, resolution of whether subsection (4)(C) is satisfied
is straightforward. LBMP generally alleges that the surveys were falsified to bolster De Moment’s
claim to disputed property. Even if we accept the contention that the surveys could serve the
purpose of bolstering De Moment’s claim to property, the surveys themselves were not
“reasonably likely to encourage consideration or review of an issue by a . . . judicial . . . body.”
See id.
“Encourage” is not defined by the TCPA, but its ordinary meaning is to “inspire with
courage, spirit, or hope.” United States v. Hansen, 599 U.S. 762, 774 (2023) (quoting Webster’s
Third New International Dictionary 747 (1966)). The word also can mean “to spur on,” “to give
help or patronage to,” or “to call forth.” Encourage, WEBSTER’S THIRD NEW INTERNATIONAL
DICTIONARY 747 (1993) (second, third, and fourth definitions). In a criminal context, the word
has a specialized meaning “used to denote solicitation and facilitation.” Hansen, 599 U.S. at 771
(citing 2 W. LaFave, Substantive Criminal Law § 13.2(a) (3d ed. 2022)); see also Encourage,
BLACK’S LAW DICTIONARY (12th ed. 2024) (“Criminal law. To instigate; to incite to action; to
embolden; to help.”). Only by stretching the term “encourage” beyond any of these definitions
could it be said that the surveys — which are simply documents supportive of one party’s position
in a boundary dispute — “inspired,” “spurred on,” “gave help,” “called forth” or “solicitated,”
review of an issue by a judicial body. In contrast to the circumstances here, in cases in which
subsection (4)(C) was satisfied, a governmental body was directly “solicited” through the
communication itself, see, e.g., Li, 653 S.W.3d at 310, 11 or language “inspiring” or “spurring on”
11
See also Maynard v. Bankston, No. 04-24-00074-CV, 2025 WL 1452565, at *4 (Tex. App.—San Antonio May 21, 2025, pet. denied) (mem. op.) (declaration filed in disbarment proceeding); Beard v. McGregor Bancshares, Inc., No. 05-21-00478-CV, 2022 WL 1076176, at *11 (Tex. App.—Dallas Apr. 11, 2022, pet. denied) (mem. op.) (documents delivered to federal regulator); Enter. Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 295 (Tex. App.— Houston [14th Dist.] 2020, no pet.) (application for building permits made to city).
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litigation was included within the communication itself, see, e.g., Guardianship of Workman, 670
S.W.3d at 419–20. Neither is the case here. Cf. Day v. McHazlett, No. 13-21-00124-CV, 2023
WL 2422499, at *4 (Tex. App.—Corpus Christi–Edinburg Mar. 9, 2023, no pet.) (mem. op.) (email containing draft EEOC complaint sent to an employee of a private employer did not satisfy
subsection (4)(C)); Graham v. Miller, No. 05-22-00766-CV, 2023 WL 1960680, at *4 (Tex.
App.—Dallas Feb. 13, 2023, pet. denied) (mem. op.) (recording of a child’s father and stepmother
shared by child’s therapist with mother based on therapist’s concern for child’s mental health did
not satisfy subsection (4)(C)); Winstead PC v. Moore, 633 S.W.3d 200, 204–05 (Tex. App.—
Dallas 2021, pet. denied) (law firm’s alleged misrepresentation about the quality of its legal work
did not satisfy subsection (4)(C)).
Moreover, we cannot say that the surveys were “reasonably likely” to encourage
consideration or review by a judicial body, if they could do so at all. See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(4)(C). The TCPA does not define “reasonably likely;” therefore we consider
ordinary meanings. Walgreens, 713 S.W.3d at 399. Black’s Law Dictionary defines the term
“likely” as: “Showing a strong tendency; reasonably expected.” Likely, BLACK’S LAW
DICTIONARY (12th ed. 2024) (second definition). It defines “reasonable” as: “Within sensible or
rational limits; not excessive; moderate.” Reasonable, BLACK’S LAW DICTIONARY (12th ed. 2024)
(fourth definition). We cannot say that the surveys had a “tendency” — even a “moderate” one —
or were “expected,” within “sensible or rational limits,” to encourage judicial review, if they could
do so at all, because the surveys did not state or imply that any matter should be decided judicially,
and the surveys, as TCPA “communications,” were not directed to an adjudicative body.
In short, we hold the TCPA does not apply to LBMP’s declaratory judgment and civil
conspiracy claims because the surveys, as TCPA “communications,” were not “reasonably likely
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to encourage consideration or review of an issue by a . . . judicial . . . body.” TEX. CIV. PRAC. &
REM. CODE ANN. §§ 27.001(1), .001(4)(C). Thus, the claims were not based on or in response to
AmeriSurveyors’ “exercise of the right to petition.” Id. § 27.003(a). Because AmeriSurveyors
did not carry its burden to show that the TCPA applied, the trial court did not err by denying
AmeriSurveyors’ motion to dismiss pursuant to the TCPA. See id. § 27.003(a); McLane
Champions, 671 S.W.3d at 914.
III. CIVIL PRACTICE & REMEDIES CODE CHAPTER 150
AmeriSurveyors also sought dismissal of LBMP’s declaratory judgment and civil
conspiracy claims pursuant to Chapter 150 of the Texas Civil Practice and Remedies Code.
AmeriSurveyors contends that the trial court erred by depriving it of its “absolute” right to seek
dismissal with prejudice pursuant to Chapter 150 and, more broadly, by denying its motion to
dismiss pursuant to Chapter 150.
A. Standard of Review and Applicable Law
Texas Civil Practice and Remedies Code Chapter 150 mandates the filing of certificates of
merit in certain cases against land surveyors and other construction professionals. See TEX. CIV.
PRAC. & REM. CODE ANN. § 150.002(a). “[T]he purpose of the certificate-of-merit requirement is
to deter meritless claims and bring them quickly to an end.” Studio E., 2026 WL 1500909, at *2
(citation omitted). LBMP does not dispute that Chapter 150 applies to its declaratory judgment
and civil conspiracy claims.
Section 150.002, entitled “Certificate of Merit,” states that “in any action . . . for damages
arising out of the provision of professional services by a licensed or registered professional, a
claimant shall be required to file with the complaint an affidavit of a third-party . . . registered
professional land surveyor,” who meets certain requirements as set forth in the statute. TEX. CIV.
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PRAC. & REM. CODE ANN. § 150.002(a). Chapter 150 defines “complaint” as “any petition or other
pleading which, for the first time, raises a claim against a licensed or registered professional for
damages arising out of the provision of professional services by the licensed or registered
professional.” Id. § 150.001(1-b). “A claimant’s failure to file the affidavit in accordance with
[section 150.002] shall result in dismissal of the complaint against the defendant.” Id. §
150.002(e). “This dismissal may be with prejudice.” Id. We generally review an order on a
motion to dismiss pursuant to Chapter 150 under an abuse of discretion standard; however, we
review de novo any issues that require us to construe statutory language. Studio E., 690 S.W.3d at
727.
B. Discussion
Chapter 150 defines “complaint” as “any petition or other pleading which, for the first time,
raises a claim against a licensed or registered professional.” Id. § 150.001(1-b) (emphasis added).
AmeriSurveyors argued in its motion to dismiss that “LBMP’s failure to attach a certificate of
merit with its original petition entitle[d] AmeriSurveyors to a judgment of dismissal as a matter of
law under Chapter 150.” It further argued: “By nonsuiting AmeriSurveyors and then immediately
adding AmeriSurveyors back to the suit in the First Amended Petition, the First Amended Petition
was not the “complaint” that raised the civil conspiracy claim against AmeriSurveyors ‘for the
first time’ in this action.”
The Texas Supreme Court recently provided guidance that helps resolve AmeriSurveyors’
contentions. In Studio E. Architecture & Interiors, Inc. v. Lehmberg, the supreme court held:
[W]here . . . the plaintiff has asserted claims against other defendants that have not
been dismissed, she need not file a new suit to assert claims subject to Section
150.002 that were previously dismissed without prejudice. Rather, in this
circumstance, the plaintiff can amend her petition to assert the dismissed claims
and append the certificate of merit[.]
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2026 WL 1500909, at *3. In reaching this holding, the supreme court rejected an argument that a
“complaint” under Chapter 150 could only be asserted in a new and separate lawsuit after dismissal
of claims without prejudice. Id. at *1. Rather, it explained that the plaintiff, Lehmberg, could
assert her claims against the licensed professional, Studio E, by filing an amended petition in the
same lawsuit:
[T]he ordinary rule [for amending pleadings, TEX. R. CIV. P. 63,] permitted
Lehmberg to reassert her claims against Studio E. by, in essence, rejoining Studio
E. by amended petition. This is plain if one imagines that Lehmberg had not
asserted any claim against Studio E. in her original petition. In that case, no one
would dispute that she could have sued Studio E. for the first time by amending her
petition to add claims against it. . . . When the trial court dismissed Lehmberg’s
claims against Studio E., it placed Lehmberg in exactly this position by effectively
removing those claims from the case. Thus, Lehmberg’s amended petition
functionally became the first petition to assert claims against Studio E. in the case.
Studio E., 2026 WL 1500909, at *4.
Here the result is the same: LBMP could reassert claims for declaratory judgment and civil
conspiracy against AmeriSurveyors in the same lawsuit after dismissal of those claims without
prejudice because the first amended petition, which reasserted the claims, was functionally the first
petition to assert the claims against AmeriSurveyors. In August 2023, LBMP filed its original
petition but did not include a certificate of merit. On September 11, 2023, LBMP filed a “Motion
for Non-Suit,” as to its case against AmeriSurveyors. On September 14, 2023, the trial court signed
an “Order of Non-Suit,” dismissing LBMP’s case against AmeriSurveyors without prejudice, and
on September 15, 2023, LBMP filed a first amended petition, attaching to the petition a certificate
of merit. 12
12
Later, LBMP filed a second amended petition and, later still, an amended certificate of merit. AmeriSurveyors does not contend that these amendments impact the Chapter 150 analysis. Cf. Hardy v. Matter, 350 S.W.3d 329, 334 (Tex. App.—San Antonio 2011, pet. dism’d) (holding trial court was not precluded from looking to supplemental affidavit to determine whether licensed professional’s qualifications satisfied section 150.002(a)).
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“In Texas, the general rule is that plaintiffs have the right to take a nonsuit without
prejudice at any time until they introduce all their evidence other than rebuttal evidence.” Dargin
v. Noble Drilling Servs., Inc., 725 S.W.3d 749, 754 (Tex. App.—Houston [14th Dist.] 2025, no
pet.) (citing TEX. R. CIV. P. 162; Hyundai Motor Co. v. Alvarado, 892 S.W.2d 853, 854 (Tex.
1995)). A nonsuit extinguishes a case or controversy from “the moment it is filed . . . with the
clerk of the [trial] court.” Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel.
Shultz, 195 S.W.3d 98, 100 (Tex. 2006) (per curiam) (citations omitted). “The subsequent entry of
an order in conformity with the nonsuit is ministerial.” Birnbaum v. CSD Van Zandt, LLC, 735
S.W.3d 911, 914 (Tex. App.—Tyler 2026, no pet.) (citing FKM P’ship, Ltd. v. Bd. of Regents of
Univ. of Hous. Sys., 255 S.W.3d 619, 632-33 (Tex. 2008)).
Under this authority, LBMP’s “Motion for Non-Suit” extinguished LBMP’s case against
AmeriSurveyors at the moment it was filed. See TEX. R. CIV. P. 162; Estate of Blackmon, 195
S.W.3d at 100; see also Studio E., 2026 WL 1500909, at *4 (“[W]hen claims against a defendant
are dismissed without prejudice, that dismissal has the effect of removing those claims from the
lawsuit as though they had never been brought.”). The trial court subsequently signed a ministerial
order in conformity with the non-suit. See Birnbaum, 735 S.W.3d at 914. Then, LBMP filed a
first amended petition in the same lawsuit to reassert the claims, which, according to the reasoning
in Studio E., “functionally became the first petition to assert claims” against AmeriSurveyors,
which satisfied the requirements of Chapter 150. Studio E., 2026 WL 1500909, at *4; see TEX.
CIV. PRAC. & REM. CODE ANN. §§ 150.001(1-b), .002(a). Consequently, we overrule
AmeriSurveyors’ broad issue contending the trial court erred by denying its motion to dismiss
pursuant to Chapter 150.
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Last, AmeriSurveyors contends in a narrower issue that it had an “‘absolute’ right to seek
dismissal with prejudice,” despite the non-suit, because LBMP failed to comply with Chapter 150
when it filed its petition originally in August 2023, without a certificate of merit. AmeriSurveyors
compares its right to seek dismissal with prejudice to a party’s right to seek sanctions after a nonsuit. See Estate of Blackmon, 195 S.W.3d at 101 (“Rule 162 permits the trial court to hold hearings
and enter orders affecting costs, attorney’s fees, and sanctions, even after notice of nonsuit is filed,
while the court retains plenary power.”).
We overrule AmeriSurveyors’ issue because the record reflects that AmeriSurveyors
sought dismissal with prejudice pursuant to Chapter 150, but the trial court denied its request; in
other words, the record does not reflect that AmeriSurveyors was denied an opportunity to seek
dismissal with prejudice. 13 The record shows that AmeriSurveyors sought dismissal of LBMP’s
declaratory judgment and civil conspiracy claims with prejudice in its motion to dismiss. In a
footnote, it stated:
This motion is alternatively asserted under Chapter 150 to the extent Chapter 27
does not apply. AmeriSurveyors[’] same arguments regarding the merits of
LBMP’s claims under Chapter 27 establish why a Chapter 150 dismissal should be
with prejudice.
The trial court initially granted AmeriSurveyors’ motion and dismissed LBMP’s claims with
prejudice. Later, the trial court reconsidered its order and signed a new order denying
AmeriSurveyors’ motion. On this record, AmeriSurveyors has not established that the trial court
failed to consider its request to have LBMP’s claims dismissed with prejudice, nor has it
established any error that probably caused the rendition of an improper judgment. See TEX. R.
13
To the extent AmeriSurveyors argues that it was deprived the opportunity to seek dismissal with prejudice because the trial court did not dismiss LBMP’s claims, we overrule the issue because the trial court’s denial of AmeriSurveyors’ motion to dismiss pursuant to Chapter 150 was not error for the reasons just given.
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APP. P. 44.1(a); cf. Studio E., 2026 WL 1500909, at *2 (“[The] permissive phrasing [of section
150.002(e)] affords the trial court discretion to dismiss the complaint without prejudice”).
IV. CONCLUSION
We affirm the trial court’s order denying AmeriSurveyors’ motion to dismiss.
Rebeca C. Martinez, Chief Justice
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