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East Texas Medical Center Athens v. Hernandez

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2018

EAST TEXAS MEDICAL CENTER ATHENS, APPELLANT
v.
ESTHER HERNANDEZ, APPELLEE

          Appeal from the 173rd District Court of Henderson County, Texas (Tr. Ct. No. CV17-0221-173)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          BRIAN HOYLE, JUSTICE

         East Texas Medical Center Athens (ETMC) appeals the denial of its motion to dismiss a lawsuit that Esther Hernandez filed against it. In a single issue, ETMC contends the Texas Citizens Participation Act (TCPA) applies and that the trial court erred when it found that the statute did not apply. It also requests that the case be remanded for a determination of attorney's fees and costs. We affirm.

         Background

         Hernandez was injured in a motor vehicle collision in June 2016. She sought and received medical treatment for her injuries at ETMC. At the time she received medical services, Hernandez assigned her right to payments of any proceeds, including settlement funds, to ETMC. Because a third party was responsible for the accident and Hernandez's injuries, ETMC filed a hospital lien. The purpose of the hospital lien was to secure ETMC's right to recover payment for its services from any settlement made between Hernandez and the third party. The hospital lien does not specify the amount to which ETMC believes it is entitled; however, the parties agree that ETMC seeks to recover $33, 630.75, the balance of the amount billed to Hernandez.

         Hernandez settled her claim with the third party. Following the settlement, Hernandez sought to pay $2, 463.08 to ETMC, and ETMC responded by offering to reduce the bill to $20, 000. When the parties were unable to reach an agreement, Hernandez filed a declaratory judgment action asking the court declare the amount of ETMC's bills excessive and unreasonable. ETMC filed a motion to dismiss under the TCPA, alleging the statute[1] applies to ETMC's filing of the hospital lien. ETMC asserted that Hernandez's lawsuit was in response to its rights of petition and free speech. The trial court denied the motion and found that the TCPA did not apply because of the "commercial speech" exception. This appeal followed.[2]

         Texas Citizens Participation Act

         In its sole issue, ETMC asserts the trial court erred in not granting its motion to dismiss Hernandez's suit. Specifically, ETMC argues that the TCPA's "commercial speech" exception does not apply.

         Standard of Review and Applicable Law

         The purpose of the TCPA 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." Tex. Civ. Prac. & Rem. Code Ann. § 27.002 (West 2015). Although we construe the TCPA liberally "to effectuate its purpose and intent fully, " it "does not abrogate or lessen any other defense, remedy, immunity, or privilege available under other constitutional, statutory, case or common law or rule provisions." Id. § 27.011 (West 2015).

         The TCPA provides a mechanism for early dismissal of a cause of action that "is based on, relates to, or is in response to a party's exercise of the right of free speech, the right to petition, or right of association . . . ." Id. § 27.003 (West 2015). The party moving for dismissal has the initial burden to establish by a preponderance of the evidence "that the legal action is based on, relates to, or is in response to the party's exercise of" the right of free speech, the right to petition, or the right of association. Id. § 27.005(b) (West 2015). If the movant makes this showing, the burden shifts to the nonmovant to establish by "clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). However, even if the plaintiff establishes a prima facie case, the court shall dismiss the case if the movant establishes each essential element of a valid defense by a preponderance of the evidence. Id. § 27.005(d). When determining whether to dismiss the legal action, the court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a) (West 2015).

         The Texas Supreme Court has explained the meaning of the requirement that the nonmovant establish by "clear and specific evidence a prima facie case." In re Lipsky, 460 S.W.3d 579, 590-91 (Tex. 2015) (orig. proceeding). "Clear" means "unambiguous, sure or free from doubt, " and "specific" means "explicit or relating to a particular named thing." Id. at 590. A "prima facie case" is "the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. Id. The "clear and specific evidence" requirement does not impose an elevated evidentiary standard, nor does it categorically reject circumstantial evidence. Id. at 591. But it requires more than mere notice pleading. Id. at 590-91. Instead, a plaintiff must provide enough detail to show the factual basis for its claim. Id. at 590.

         We review questions of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We consider de novo the legal question of whether the movant has established by a preponderance of the evidence that the challenged legal action is covered by the TCPA. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.-Austin 2015, no pet.). We also review de novo a trial court's determination of whether a nonmovant has presented clear and specific evidence establishing a prima facie case of each essential element of the challenged claims. Id. We consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); Campbell v. Clark, 471 S.W.3d 615, 623 (Tex. ...


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