Appeal from the 215th District Court Harris County, Texas
Trial Court Case No. 2018-56514
consists of Justices Lloyd, Landau, and Countiss.
RUSSELL LLOYD JUSTICE
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"). 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.
Stocks, an orthopedic surgeon, practices with Fondren
Orthopedic Group, L.L.P. ("FOG") and holds an
ownership interest in Fondren Orthopedic Group, Ltd.
("FOLTD"). 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.
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.
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.
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.
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
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
Citizens Participation Act
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.
Applicable Law and ...