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Staff Care, Inc. v. Eskridge Enterprises, LLC

Court of Appeals of Texas, Fifth District, Dallas

May 15, 2019


          On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-17-17163

          Before Justices Bridges, Partida-Kipness, and Carlyle.



         This is an interlocutory appeal from the trial court's order denying a motion to dismiss based on the Texas Citizen Participation Act (TCPA). Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011. We conclude the TCPA does not apply to appellee Eskridge Enterprises, LLC d/b/a Eskridge and Associates's tortious interference and DTPA counterclaims against Staff Care, Inc., a wholly owned subsidiary of AMN Healthcare, Inc. We affirm the trial court's order denying the motion to dismiss.


         Staff Care is a subsidiary staffing company of AMN Healthcare, Inc. that has a large supply of clinicians and physicians within its network. Eskridge is a "service-disabled Veteran-owned small business" that places doctors on contract assignments nationwide under federal contracts (typically with the Veterans Administration).

         Staff Care and Eskridge had a long-standing relationship in which Staff Care provided healthcare providers and Eskridge used them in its business. On December 22, 2008, the parties entered into a contract for locum tenens coverage (the Agreement) in which Staff Care provided Eskridge healthcare providers in accordance with an agreed upon fee schedule. The most recent contract extension occurred on May 1, 2017.

         On or about May 1, 2017, Eskridge was awarded a lucrative government contract. Shortly thereafter, Staff Care pulled all the physicians from every active contract with Eskridge. According to Eskridge, Staff Care communicated with existing and prospective physicians in March, April, and May of 2017 and told them they were not permitted to leave or work with Eskridge directly. Staff Care further told Eskridge it would have to pay significant reassignment fees, which Eskridge considered "blackmail fees," if it worked directly with any physicians. Eskridge alleged that "[a]s a direct result of [Staff Care's] interference," Eskridge's government contract was cancelled.

         Staff Care thereafter filed suit for breach of contract to recover $750, 000 in damages for the services rendered under the Agreement that Eskridge failed to pay pursuant to the Contract. Eskridge answered and filed counterclaims for deceitful trade practices-false advertising, breach of contract, tortious interference, unfair competition, and economic duress.

         Staff Care filed a motion to dismiss pursuant to the TCPA alleging that Eskridge's counterclaims were predicated on Staff Care's exercise of free speech and association. Specifically, Staff Care asserted the communications related to health or safety, community well-being, and a service in the marketplace, thereby triggering the protections of the TCPA as an exercise of its free speech. It also contended its alleged communications with physicians involved a shared common interest to promote and pursue a business relationship regarding physician staffing thereby triggering protection under the TCPA as a right of association. Staff Care further argued the commercial speech exemption did not apply because its alleged wrongful conduct did not stem from services Staff Care was offering Eskridge, but instead involved communications from Staff Care to physician/clients. Staff Care insisted it met its burden establishing the applicability of the TCPA, and Eskridge, for various reasons, could not establish by clear and specific evidence every essential element of its counterclaims to survive a motion to dismiss.

         Eskridge responded the TCPA did not apply or, alternatively, the commercial speech exemption applied. In conclusory fashion, Eskridge claimed it established by clear and specific evidence every essential element of its counterclaims.

         The trial court held a hearing on April 11, 2018 and May 8, 2018. The court focused, in part, on whether the commercial speech exemption applied. Staff Care repeatedly emphasized the physicians were not clients, but were the "goods" they provided to hospitals. Eskridge responded Staff Care is in the business of selling or subcontracting services, Eskridge and the physicians are the consumers, and the staffing agreement is the transaction.

         The trial court denied Staff Care's motion to dismiss on June 5, 2018. On appeal, Staff Care challenges the trial court's order denying dismissal of Eskridge's DTPA and tortious interference counterclaims.

         The TCPA

         The TCPA "protects citizens ... from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The stated purpose of the statute 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; see also ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam) (Coleman II). We construe the TCPA "liberally to effectuate its purpose and intent fully." Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b).

         "To effectuate the statute's purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant's exercise of [the] First Amendment Rights" protected by the statute. Coleman II, 512 S.W.3d at 898; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). The movant bears the initial burden of showing by a preponderance of the evidence that the legal action is based on, related to, or is in response to the movant's exercise of the right of free speech, the right of association, or the right to petition. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b); see also S & S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). If the movant makes this showing, the burden shifts to the non-movant to establish by clear and specific evidence a prima facie case for each essential element of its claims. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); see Elliott, 564 S.W.3d at 847. However, even if the non-movant satisfies this requirement, the trial court must still dismiss the claim if the movant "establishes by a preponderance of the evidence each essential element of a valid defense to the [non-movant's] claim." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); see also Youngkin, 546 S.W.3d at 679-80.

         Standard of Review

         We review de novo the trial court's ruling on a motion to dismiss under the TCPA. Mohamed v. Ctr. for Sec. Policy, 554 S.W.3d 767, 773 (Tex. App.-Dallas 2018, pet. denied). "In conducting this review, we consider, in the light most favorable to the non-movant, the pleadings and any supporting and opposing affidavits stating the facts on which the claim or defense is based." Fishman v. C.O.D. Capital Corp., No. 05-16-00581-CV, 2017 WL 3033314, at *5 (Tex. App.-Dallas July 18, 2017, no pet.) (mem. op.); see also Tex Civ. Prac. & Rem. Code Ann. § 27.006(a).

         Whether the TCPA applies to Eskridge's counterclaims is an issue of statutory interpretation that we also review de novo. Youngkin, 546 S.W.3d at 680. In conducting our analysis, "we ascertain and give effect to the Legislature's intent as expressed in the language of the statute." Harper, 562 S.W.3d at 1. We construe the statute's words according to their plain and common meaning, "unless a contrary intention is apparent from the context, or unless such a construction leads to absurd results." Youngkin, 546 S.W.3d at 680; see also Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011) ("The plain meaning of the text is the best ...

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