Court of Appeals of Texas, Twelfth District, Tyler
from the 173rd District Court of Henderson County, Texas (Tr.
Ct. No. CV17-0221-173)
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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.
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.
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 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.
Citizens Participation Act
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.
of Review and Applicable Law
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).
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)
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.
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. ...