AMERISURVEYORS LLC v. LA BELLA MILLER PROPERTIES LLC (2026)

OPINION

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 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[.]

(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, ––– S.W.3d ––––, 2026 WL 1500909 (Tex. May 29, 2026), which we had issued in February 2024. The trial 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, ––– S.W.3d ––––, 2026 WL 1500909 (Tex. May 29, 2026). After the supreme court affirmed our Studio E. decision, we reinstated AmeriSurveyors' appeal. See id. at ––––, 2026 WL 1500909, 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 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).

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).

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 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 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.

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 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.

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).

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.

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

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, 143 S.Ct. 1932, 216 L.Ed.2d 692 (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, 143 S.Ct. 1932 (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” 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.) (e-mail 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 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., ––– S.W.3d at ––––, 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. 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[.]

––– S.W.3d at ––––, 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 ––––, 2026 WL 1500909, 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., ––– S.W.3d at ––––, 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

“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., ––– S.W.3d at ––––, 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., ––– S.W.3d at ––––, 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.

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 non-suit. 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. App. P. 44.1(a); cf. Studio E., ––– S.W.3d at ––––, 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.

FOOTNOTES

2.   AmeriSurveyors does not request a remand for consideration of attorneys fees with respect to Chapter 150.

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.”

5.   LBMP characterizes a fence Ituarte built along the disputed boundary as a “spite fence.”

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).

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).

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, ––– S.W.3d ––––, ––––, 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”).

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).

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)).

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.

Opinion by: Rebeca C. Martinez, Chief Justice