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Pierce v. Brock

Court of Appeals of Texas, First District

July 30, 2019

PEGGY PIERCE, Appellant
v.
GARY T. BROCK, M.D. AND GARY T. BROCK, M.D., P.A., Appellees

          On Appeal from the 157th District Court Harris County, Texas Trial Court Case No. 2018-42395

          Panel consists of Justices Lloyd, Landau, and Countiss.

          MEMORANDUM OPINION

          RUSSELL LLOYD JUSTICE

         Appellant, Peggy Pierce, appeals the trial court's order denying her motion to dismiss filed pursuant to the Texas Citizens Participation Act ("TCPA" or "the Act").[1] In one issue, Pierce contends that the trial court erred when it denied her motion to dismiss appellees, Gary T. Brock, M.D. and Gary T. Brock, M.D., P.A.'s (collectively, "Brock") claims for negligence, fraud, and breach of fiduciary duty against her because (1) she showed by a preponderance of the evidence that the TCPA applies to Brock's claims and (2) Brock failed to establish by clear and specific evidence a prima facie case for each essential element of its claims. We affirm.

         Background

         Dr. Brock is an orthopedic surgeon in Houston, Texas. His professional association, Gary T. Brock, M.D., P.A., is one of a number of partners that forms Fondren Orthopedic Group, L.L.P. ("FOG"). FOG hired Pierce in 1989. Pierce became FOG's administrator in 1993 and, in 2017, she was named FOG's Chief Operating Officer.

         In her role as administrator, Pierce was responsible for the day-to-day operations of Brock P.A. and overseeing all financial aspects of the practice, including billing, collections, the allocation of overhead, and the payment and distribution of partnership funds. In 2018, FOG initiated an internal investigation of Pierce after its physicians had become concerned with Pierce's actions and behavior. On February 8, 2018, FOG placed Pierce on a leave of absence. FOG terminated Pierce's employment on March 15, 2018.[2]

         On February 28, 2018, Pierce filed a charge of discrimination with the Texas Workforce Commission ("TWC") and the Equal Employment Opportunity Commission ("EEOC"). On April 16, 2018, the parties attempted to resolve Pierce's claims at a pre-suit mediation but were unsuccessful.

         On May 23, 2018, Pierce filed suit against FOG and Fondren Orthopedic Ltd. ("FOLTD") in federal court, [3] alleging claims of disability, age, and sex discrimination, retaliation, and breach of contract. On June 21, 2018, FOG and FOLTD answered and asserted counterclaims against Pierce for breach of fiduciary duty, fraud, conversion, and declaratory judgment.

         On June 25, 2018, Dr. Brock and Brock P.A. filed suit against Pierce, asserting claims for fraud, fraud by non-disclosure, negligence, and negligent misrepresentation. Brock P.A. also asserted a claim against Pierce for breach of fiduciary duty.

          On August 23, 2018, Pierce filed a motion to dismiss Brock's lawsuit arguing that the suit was related to, and in response to, Pierce's exercise of the right to petition, to wit, her suit against FOG, and that Brock failed to establish by clear and specific evidence a prima facie case for each essential element of its claims, thereby entitling Pierce to dismissal of the claims under the TCPA. To her motion, Pierce attached numerous exhibits, including her declaration and her husband's declaration. In its response and sur-reply, Brock argued that Pierce's motion to dismiss should be denied because Pierce failed to show by a preponderance of the evidence that Brock's lawsuit was related to, or in response to, Pierce's lawsuit, and Brock provided clear and specific evidence of a prima facie case for each essential element of its claims. Brock also objected to Pierce's and her husband's declarations on the grounds that they violated the mediation privilege, contained inadmissible hearsay, and were irrelevant as to whether the TCPA applied to Brock's lawsuit.

         On September 28, 2018, the trial denied Pierce's motion to dismiss. In its order, the trial court also sustained Brock's objections to the declarations of Pierce and her husband and struck them from the record. This interlocutory appeal followed.[4]

         Texas Citizen's Participation Act

         In one issue, Pierce contends that the trial court erred in denying her motion to dismiss Brock's claims because (1) the claims relate to, and are in response to, her exercise of the right to petition, and (2) Brock did not establish by clear and ...


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