Court of Appeals of Texas, Third District, Austin
Superior HealthPlan, Inc. and William Brendle Glomb, MD, Appellants
Linda Badawo, Individually, and as Next Friend of D. B. (formerly known as D. M.), a Minor, Appellee
THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-18-003168, THE HONORABLE DON R. BURGESS, JUDGE
Chief Justice Rose, Justices Kelly and Smith
HealthPlan, Inc. and its senior medical director, Dr. William
Glomb, (collectively, Superior) appeal from an interlocutory
order denying their motion to dismiss Linda Badawo's
lawsuit pursuant to the Texas Citizens' Participation Act
(TCPA). See Tex. Civ. Prac. & Rem. Code
§§ 27.001-.011. Badawo sued Superior alleging it
wrongfully denied Medicaid benefits to her adopted son D.B.
and that he suffered serious personal injuries as a
result. We will affirm the district court's
order denying the motion to dismiss.
and his twin sister (not a party to this appeal) were born
prematurely at twenty-five weeks with a variety of medical
issues. D.B. in particular had breathing difficulties and
depended on a ventilator, a machine that pushed oxygen into
his lungs through a tracheostomy tube threaded through an
incision in his throat. D.B. learned to breathe on his own
after several months, but the tube remained in place to keep
his airway open. The State obtained custody of D.B. and his
sister and, following their release from the hospital, placed
them in foster care with Linda Badawo, a pediatric nurse, who
eventually petitioned to adopt them.
children were entitled to Medicaid benefits through a program
administered by the state Health and Human Services
Commission (HHSC). Superior is a private organization that
contracts with HHSC to deliver Medicaid benefits to foster
children and certain persons with disabilities. Superior
initially approved one-on-one nursing care for both children.
Around the time of D.B.'s first birthday, Badawo asked
Superior to upgrade D.B.'s care from twelve to
twenty-four hours a day because he was pulling out his
tracheostomy tube multiple times a day. Superior refused.
Superior subsequently informed her that it would now pay for
only a single nurse for both children. After Superior refused
to reconsider either decision, Badawo appealed to HHSC.
See 1 Tex. Admin. Code § 357.3 (2019) (Tex.
Health and Human Servs., Authority and Right to Appeal)
(authorizing "[c]lients of Medicaid-funded
services" to appeal certain actions regarding a
reduction in benefits or refusal to approve care).
appeal was still pending in October 2016 when Badawo traveled
to Nigeria to visit relatives. The children were placed in
different foster homes because Badawo's petition to adopt
them had not been approved by this time. Shortly afterwards,
a nurse at D.B.'s new home (but not assigned to him)
noticed that D.B. had pulled out his tracheostomy tube and
was not breathing. He had no detectible pulse and was taken
to the emergency room where doctors revived him. D.B.
suffered significant brain damage from loss of oxygen to his
brain for approximately forty minutes. As a result, he now
experiences an average of six seizures a day. Superior then
approved Badawo's request for twenty-four-hour one-on-one
nursing care. Badawo subsequently adopted D.B. and his
as D.B.'s next friend, then sued Superior asserting
causes of action for failing "to exercise ordinary care
when making health care treatment decisions," Tex. Civ.
Prac. & Rem. Code § 88.002(a), common-law
negligence, negligence per se, breach of fiduciary duty, and
fraud. Superior filed a motion to dismiss all claims under
the TCPA. The district court denied the motion without
stating its reasons, and this appeal ensued. See
Tex. Civ. Prac. & Rem. Code § 51.014(a)(12)
(authorizing appeal from interlocutory order denying TCPA
motion to dismiss).
initially argues that Badawo lacks standing to sue as
D.B.'s next friend because she has legally adopted him.
See In re Bridgestone Ams. Tire Operations, LLC, 459
S.W.3d 565, 572 & n.9 (Tex. 2015) (orig. proceeding)
(holding minors cannot sue by next friend if a parent has
legal authority to represent them in court). Superior
characterizes this as a challenge to Badawo's standing,
but it actually concerns her capacity. "The issue of
standing focuses on whether a party has a sufficient
relationship with the lawsuit so as to have a
'justiciable interest' in its outcome, whereas the
issue of capacity 'is conceived of as a procedural issue
dealing with the personal qualifications of a party to
litigate.'" Austin Nursing Ctr., Inc. v.
Lovato, 171 S.W.3d 845, 848 (Tex. 2005) (quoting 6A
Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane,
Federal Practice and Procedure: Civil 2d § 1559, at 441
(2d ed. 1990)). Because minors generally lack capacity, they
must appear in court through a next friend or another person
with "the capacity to sue on their behalf."
Id. at 849 (emphasis added); see In re KC
Greenhouse Patio Apartments, LP, 445 S.W.3d 168, 172
(Tex. App.-Houston [1st Dist.] 2012, orig. proceeding)
(explaining "[t]he next friend is present in a
representative capacity only" (citation omitted)). And
unlike standing, "a challenge to capacity may be
waived." In re Bridgestone, 459 S.W.3d at 573.
Preservation of error requires a party to make a "timely
request, objection, or motion" and either obtain a
ruling or object to the trial court's refusal to rule.
Tex.R.App.P. 33.1(a). Superior included a footnote in its
answer stating that it "reserves its right to contest
Linda Badawo's standing to seek legal relief on behalf of
this minor." Dr. Glomb included substantively the same
statement in his answer, but neither actually argued to the
district court that she lacked capacity or requested a ruling
on that issue. We therefore conclude Superior has not
preserved this issue for review.
TCPA creates a multi-step process for dismissal of claims
based on the defendant's exercise of the rights to speak
freely, petition, or associate. Tex. Civ. Prac. & Rem.
Code § 27.003; see id. § 27.001(2)-(4)
(defining exercise of protected rights). The party bringing
the motion has the initial burden to establish "by a
preponderance of the evidence that the legal action is based
on, relates to, or is in response to the party's
exercise" of one of the rights protected by the TCPA.
Id. § 27.005(b). If the movant makes the
required showing, the burden shifts to the nonmovant to
"establish by clear and specific evidence a prima
facie case for each essential element of the claim in
question." Id. § 27.005(c). If the
nonmovant establishes the required prima facie case, the
burden returns to the movant to establish "by a
preponderance of the evidence each essential element of a
valid defense to the nonmovant's claim."
Id. § 27.005(d).
with and overlying this multi-step dismissal process is the
TCPA provision exempting certain actions from the TCPA's
application." Morrison v. Profanchik, ____
S.W.3d ____, ____, No. 03-17-00593-CV, 2019 WL 2202210, at *2
(Tex. App.-Austin May 22, 2019, no pet. h.); see
Tex. Civ. Prac. & Rem. Code § 27.010 (establishing
four exemptions). If the movant carried its initial burden to
show the TCPA applies, the trial court then considers whether
the nonmovant's claims fall within any exception raised
by the movant. Morrison, 2019 WL 2202210, at *2. The
nonmovant bears the burden to demonstrate that her ...