Court of Appeals of Texas, Fifth District, Dallas
STAFF CARE, INC., A WHOLLY OWNED SUBSIDIARY OF AMN HEALTHCARE, INC., Appellant
ESKRIDGE ENTERPRISES, LLC D/B/A ESKRIDGE AND ASSOCIATES, Appellee
Appeal from the 95th District Court Dallas County, Texas
Trial Court Cause No. DC-17-17163
Justices Bridges, Partida-Kipness, and Carlyle.
L. BRIDGES JUSTICE.
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.
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).
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.
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.
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
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
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.
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.
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.
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).
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.
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. §
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