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Pierce v. Stocks

Court of Appeals of Texas, First District

July 30, 2019

PEGGY PIERCE, Appellant
v.
GREGORY STOCKS, MD, Appellee

          On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2018-56514

          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 appellee, Gregory Stock, MD's, claims for breach of fiduciary duty and fraud against her because (1) she showed by a preponderance of the evidence that the TCPA applies to Stocks's claims and (2) Stocks failed to establish by clear and specific evidence a prima facie case for each essential element of his claims. We affirm.

         Background

         Dr. Stocks, an orthopedic surgeon, practices with Fondren Orthopedic Group, L.L.P. ("FOG") and holds an ownership interest in Fondren Orthopedic Group, Ltd. ("FOLTD").[2] FOG hired Pierce in 1989. Pierce became FOG's administrator in 1993 and its Chief Operating Officer in 2017. In these roles, she handled the business affairs of both FOG and FOLTD. Pierce also provided financial advice and guidance to Stocks for many years.

         In 2018, after Pierce refused to provide requested financial information to several of FOG's partners, FOG began an investigation into Pierce's actions during her tenure. On February 8, 2018, FOG placed Pierce on a leave of absence. FOG subsequently terminated Pierce's employment.

          On February 28, 2018, Pierce filed a charge of discrimination with the Texas Workforce Commission and the Equal Employment Opportunity Commission. 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 FOLTD in federal court, 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. Stocks is not a party to the federal lawsuit.

         On June 21, 2018, Stocks filed suit against Pierce, asserting claims for breach of fiduciary duty and fraud. On August 27, 2018, Pierce filed a motion to dismiss Stocks's lawsuit arguing that his suit was filed in response to, or was related to, Pierce's exercise of the right to petition, i.e., her federal lawsuit against FOG, and that Stocks failed to establish by clear and specific evidence a prima facie case for each essential element of his 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 his response, Stocks argued that Pierce's motion to dismiss should be denied because Pierce failed to show by a preponderance of the evidence that the TCPA applies to his lawsuit, and he provided clear and specific evidence of a prima facie case for each essential element of his claims. Stocks also objected to Pierce's and her husband's declarations on the grounds that they violated the mediation privilege, contained inadmissible hearsay, were speculative, conclusory, and could not be controverted, and were irrelevant as to whether the TCPA applied to Stocks's lawsuit.

         On October 19, 2018, the trial denied Pierce's motion to dismiss. In its order, the trial court also sustained Stocks's objections to the declarations of Pierce and her husband and struck them from the record. This interlocutory appeal followed.[3]

         Texas Citizens Participation Act

         In one issue, Pierce contends that the trial court erred in denying her motion to dismiss Stocks's claims because (1) the claims relate to, or are in response to, her exercise of the right to petition, and (2) Stocks did not establish by clear and specific evidence a prima facie case for each essential element of his claims.

         A. Applicable Law and ...


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