Court of Appeals of Texas, Fifth District, Dallas
JEFFREY ERDNER, D.O. AND THE EMERGENCY CENTER AT WEST 7TH, LLC, Appellants
HIGHLAND PARK EMERGENCY CENTER, LLC, Appellee
Appeal from the 191st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-18-01059
Justices Whitehill, Molberg, and Reichek
Park Emergency Center, LLC (HPEC) sued Jeffrey Erdner, D.O.
for breach of fiduciary duty. It sued The Emergency Center at
West 7th, LLC (West 7th) for aiding and abetting the breach.
Specifically, HPEC alleged that Erdner, one of its members,
usurped an opportunity to expand HPEC's business
operations for his own personal benefit, communicated with
investors about forming West 7th to capitalize on the
opportunity, and misled HPEC and its other members about his
filed a motion to dismiss HPEC's claims pursuant to the
Texas Citizens Participation Act, Tex. Civ. Prac. & Rem.
Code Ann. §§ 27.001-.011 (the TCPA). Following a
hearing, the trial court denied the motion. In two issues,
appellants argue the trial court erred by denying the motion
to dismiss because the TCPA applies to HPEC's claims and
HPEC failed to establish by clear and specific evidence a
prima facie case for each element of its claims.
TCPA applies only if HPEC's claims are based on, related
to, or in response to appellants' exercise of one of the
rights protected by the statute, each of which requires a
"communication." Appellants assert they are
entitled to the protection of the statute because
Erdner's communications with other investors constituted
the exercise of the right of association and the right of
free speech, as defined by the TCPA.
conclude appellants failed to meet their burden of
establishing the TCPA applies to HPEC's claims because
Erdner's communications did not (1) involve the public or
citizen's participation required for the exercise of the
right of association or (2) relate to a matter of public
concern as required for the exercise of the right of free
speech. Accordingly, we affirm the trial court's order
denying the motion to dismiss.
member-managed limited liability company, operates a
freestanding emergency room (FSER) in Dallas. In 2011, Erdner
was admitted as a member of HPEC and named as one of its
managers. Erdner was considered to be the chief financial
officer of HPEC.
December 16, 2013, Perren Gasc of Centennial Retail Services
sent an email to "admin" at HPEC about an "HP
Emergency Care Site" in Fort Worth. Gasc indicated the
location proposed for a new FSER was a mixed-use project
similar to HPEC's location in Dallas. Gasc attached
marketing information to the email and inquired as to who
would be the best person to speak to regarding the
alleges that Erdner, the only member of HPEC who had access
to the "admin" email, became aware of the
opportunity but did not disclose it to the other members of
HPEC. Instead Erdner contacted investors in Arizona about the
opportunity and formed a number of limited liability
companies, including West 7th, to hide his conduct. West 7th
ultimately built an FSER in the same area as proposed by Gasc
in his email.
on the other hand, contends the "front desk" at
HPEC monitored the "admin" email, and he did not
see the email from Gasc. Rather, he was approached in
December 2013 by a neighbor and long-time friend who offered
him an investment opportunity. The opportunity was available
only to Erdner individually and not to the other members of
HPEC. Erdner spoke with HPEC's attorney about the
investment opportunity and was told the HPEC Company
Agreement did not prevent him from taking advantage of the
opportunity and he was not required to tell the other members
of HPEC about the opportunity.
claims that, because he wanted to be transparent, he
disclosed his involvement in the investment opportunity to
the other members of HPEC. In a July 20, 2014 email to one of
the other members, Erdner stated he had been contacted by a
start-up medical company, his work for that company would be
from home on his own time, and there would be no shift-work.
Erdner stated the new company "deals with a variety of
aspects, including medical software, hospital management, ER
physician contracts, ER physician management, and hospital/ER
development." He represented that most of the new
company's work "intends to be outside of
Texas," but the company was interested in opening
"a limited number of free standing ER's in
Texas." Erdner stated the new company had agreed to
abide by the non-compete clause in HPEC's Company
Agreement, and the work would "by no means affect
anything from the HPEC standpoint."
25, 2014, Erdner sent another email, this time to all the
other members of HPEC. Erdner stated he was not joining a
group of doctors whose "mission" was to open FSERs.
Rather, the new company had a primary focus of
"micro-hospitals" in states in which FSERs were not
protected by law. Following its initial discussions with
Erdner, the company expressed an interest in "a minimal
FSER involvement in Texas and Colorado." Erdner stated
that HPEC was his primary job and responsibility, his
commitment and goals toward HPEC were "unwavering,"
and he would not share "insider information" with
the new company.
withdrew as a member of HPEC on May 2, 2015. West 7th opened
an FSER in Fort Worth in June or July of 2016. HPEC alleged
that Erdner and his partners subsequently opened an FSER in
Arlington and had plans to open one in San Antonio and that
Erdner also "parlayed" the initial opportunity for
the Fort Worth FSER into four emergency centers in Arizona.
sued Erdner for breach of fiduciary duty for usurping
HPEC's opportunity to open an FSER in Fort Worth and West
7th for aiding and abetting Erdner's conduct. HPEC
specifically alleged that Erdner failed to offer or advise
HPEC or its members of the Fort Worth opportunity, used
"corrupted business judgment" to withhold
information about the opportunity from HPEC and its members,
made misleading and materially false representations to HPEC
and its members about the scope and nature of his separate
business dealings, and misappropriated HPEC's
confidential and proprietary information for his personal
filed a motion to dismiss HPEC's claims pursuant to the
TCPA. Appellants asserted that HPEC's claims were based
on, related to, or in response to appellants' exercise of
their right of association and right of free speech and that
HPEC could not produce clear and specific evidence of a prima
facie case for each claim. The trial court denied the motion
to dismiss, and appellants filed this interlocutory appeal.
Law and Standard of Review
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); see also State ex rel.
Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018).
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, relates to, or is in response to the
movant's exercise of the right of free speech, the right
to petition, or the right of association. 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.
the TCPA applies to HPEC's claims is an issue of
statutory interpretation that we review de novo. See
Youngkin, 546 S.W.3d at 680. In construing the statute,
we "ascertain and give effect to the Legislature's
intent as expressed in the language of the statute."
Harper, 562 S.W.3d at 11; see also Travis Cent.
Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011)
("Legislative intent . . . remains the polestar of
statutory construction." (internal citations omitted)).
We consider both the specific statutory language at issue and
the statute as a whole. In re Office of Att'y
Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig.
proceeding); see also Youngkin, 546 S.W.3d at 680
("[L]egislative intent derives from an act as a whole
rather than from isolated portions of it.").
endeavor to read the statute contextually, giving effect to
every word, clause, and sentence. In re Office of
Att'y Gen., 422 S.W.3d at 629; see also
Norman, 342 S.W.3d at 58 (noting courts should
"never" apply requirement that Legislature clearly
and unambiguously express its intent to waive immunity
"mechanically to defeat the law's purpose or the
Legislature's intent"). We apply 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
expression of legislative intent unless a different meaning
is apparent from the context or the plain meaning leads to
absurd or nonsensical results."). Although we must
adhere to the definitions supplied by the Legislature in the
TCPA, Adams v. Starside Custom Builders, LLC, 547
S.W.3d 890, 894 (Tex. 2018); Youngkin, 546 S.W.3d at
680, in the process of applying those "isolated"
definitions, we are required to construe individual words and
provisions in the context of the statute as a whole,
Youngkin, 546 S.W.3d at 680-81.
their first issue, appellants assert they met their initial
burden of showing the TCPA applies because HPEC's claims
are based on, related to, or in response to appellants'
exercise of the right of association or the right of free
speech. See Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(b). Both the right of association and the right
of free speech, as defined by the TCPA, require a
"communication," see Tex. Civ. Prac. &
Rem. Code Ann. § 27.001(2)-(3), which includes "the
making or submitting of a ...