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Sanders v. Bansal

Court of Appeals of Texas, First District

December 31, 2019

KAREN SANDERS, THEODORE CHASE, KEVIN PEVER, HASSAN GEBARA, LINDSEY VILLANUEVA, TAMISHA SHELTON, KENNETH WILLIAMS, TIMISHA KIMBLE, ROSEMARY EJIOFOR, and ROSEMARY EJIOFOR AS NEXT FRIEND OF DESTINY EJIOFOR, Appellants
v.
KANTI BANSAL D/B/A SIGNATURECARE EMERGENCY CENTER, ROUND TABLE PHYSICIANS GROUP, PLLC, CHYNA CORALLINO, and LISA SNYDER, Appellees/Cross Appellants
v.
KAREN SANDERS, THEODORE CHASE, KEVIN PEVER, HASSAN GEBARA, LINDSEY VILLANUEVA, TAMISHA SHELTON, KENNETH WILLIAMS, TIMISHA KIMBLE, and ROSEMARY EJIOFOR, Cross-Appellees

          On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case Nos. 17-DCV-239861, 17-DCV-239862

          Panel consists of Chief Justice Radack and Justices Keyes and Goodman.

          MEMORANDUM OPINION

          Evelyn V. Keyes, Justice.

         In two separate appeals which we consider together, appellants/cross-appellees Karen Sanders, Theodore Chase, Kevin Pever, Hassan Gebara, Lindsey Villanueva, Tamisha Shelton, Kenneth Williams, Timisha Kimble, and Rosemary Ejiofor in both her individual capacity and as next friend of her daughter, Destiny Ejiofor ("the Patients"), appeal the trial court's dismissal of their fraudulent lien suits against appellees/cross-appellants Kanti Bansal d/b/a SignatureCare Emergency Center, Round Table Physicians Group, PLLC, Chyna Corallino, and Lisa Snyder (collectively, the Providers), pursuant to the Texas Citizen's Participation Act (TCPA). In a single issue, the Patients argue that the trial court erred in granting the Providers' motions to dismiss because (1) the Providers did not carry their burden to show that the Patients' claims are based on TCPA-protected communications, (2) the Patients' claims are excluded from the TCPA's dismissal procedures under the commercial speech exemption, and (3) the Patients presented sufficient evidence to establish a prima facie case to support their claims.

         The Providers assert in a single issue on cross-appeal in the Sanders case that the trial court abused its discretion in determining the amount of attorney's fees and sanctions it awarded them.

         We reverse the trial court's orders dismissing the Patients' cases and awarding attorney's fees and sanctions, we dismiss as moot the Providers' sole issue on cross-appeal, and we remand the cases to the trial court for proceedings consistent with this opinion.

         Background

         On various dates between December 2014 and November 2016, each of the Patients was treated at SignatureCare Emergency Center, an emergency medical care facility, by physicians working together as Round Table Physicians Group PLLC, for injuries sustained in separate car accidents. Shortly after each Patient was treated, both SignatureCare and Round Table, through their representatives Chyna Corallino and Lisa Snyder, filed individual "hospital liens" to secure payment for their medical services from any lawsuit, or the proceeds or settlement therefrom, that the Patients file against the parties responsible for the accidents that caused their injuries, pursuant to Texas Property Code chapter 55. See Tex. Prop. Code Ann. § 55.002(a) (stating that, subject to certain conditions, hospital has lien on cause of action of patient who receives hospital services for injuries caused by accident attributed to another's negligence).

         After she was given notice of the hospital liens, Rosemary Ejiofor filed two separate fraudulent lien suits against appellees Dr. Kanti Bansal d/b/a SignatureCare Emergency Center, Round Table Physicians Group, and Chyna Corallino-one in her own right, and the other as next friend of her daughter, Destiny. Not long thereafter, on various dates between February and March 2017, each of the remaining Patients, represented by the same attorney, filed a separate, virtually identical, suit against Dr. Bansal d/b/a SignatureCare Emergency Center, Round Table Physicians Group, and Lisa Snyder.

         The petitions in each of the ten lawsuits alleged that the Providers filed the hospital liens with the knowledge that they were not eligible to do so because they are not "hospitals" or "emergency medical services providers" as those terms are defined by the hospital lien statute, see Tex. Prop. Code Ann. § 55.001(2), (3) (setting out definitions), and that this violated Texas Civil Practice & Remedies Code section 12.002, see Tex. Civ. Prac. & Rem. Code Ann. § 12.002(a), (b) (stating that person is liable for making, presenting, or using document knowing that it is fraudulent lien, if that person intended for document to be given same legal effect as court record or document and intended to cause another person financial or physical injury, or mental anguish or emotional distress).

         On May 8, 2017, the Providers jointly filed TCPA motions to dismiss both of Ejiofor's fraudulent lien suits. They argued that their recording of the hospital lien notices constituted the lawful exercise of the rights to free speech and petition and that Ejoifor had not presented clear and specific evidence of her fraudulent lien claims as required to survive a TCPA motion to dismiss. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.005(b) (requiring court to dismiss legal action if moving party shows by preponderance of evidence that action is "based on, relate[d] to, or is in response to" moving party's exercise of right of free speech, petition, or association); 27.005(c) (stating that court may not dismiss legal action if nonmovant establishes "by clear and specific evidence a prima facie case for each essential element of the claim in question"). The Providers also requested attorney's fees and sanctions. See id. § 27.009(a) (stating that if court orders dismissal, it "shall award" moving party court costs, reasonable attorney's fees, and other expenses, as well as sanctions sufficient to deter plaintiff from bringing similar actions).

         Ejiofor, in both of her capacities, filed nearly identical responses, arguing that the Providers failed to show by a preponderance of the evidence that their fraudulent lien claims were based on, related to, or in response to the Providers' exercise of their free speech or petition rights in filing the hospital lien notices. See id. § 27.005(b). In other words, Ejiofor argued that the Providers' notices of the hospital liens were not TCPA-protected communications. She also argued, in the alternative, that in each of the two cases, she had met her burden to establish a prima facie case for each element of her fraudulent lien claims by clear and specific evidence. See id. § 27.005(c).

         After holding a combined hearing on the Providers' TCPA motions to dismiss Ejiofor's two separate fraudulent lien actions, the trial court signed separate orders granting the Providers' motions and holding their requests for fees and sanctions until a later hearing. Ejiofor filed motions to reconsider in both cases.

         Shortly thereafter, pursuant to the Providers' unopposed motion, the trial court consolidated all of the Patients' cases, except for Ejiofor's case filed as next friend of Destiny Ejiofor, which retained its own cause number (17-DCV-239862) (the Ejiofor case), into Ejiofor's case filed in her own right (17-DCV-239861) (the Sanders case). The Providers then jointly filed eight TCPA motions to dismiss and requests for attorney's fees and sanctions in the Sanders case, one for each of the eight cases that had been consolidated with Ejiofor's action on her own behalf.

         In August 2017, the trial court held a hearing on the Providers' eight TCPA motions to dismiss the fraudulent lien suits as well as on the motions to reconsider filed in the two Ejiofor cases (one of which was now part of the consolidated Sanders case). After hearing argument of counsel, the trial court orally granted the Providers' eight TCPA motions to dismiss the fraudulent lien suits, denied both of Ejiofor's motions to reconsider its prior rulings, and held the issue of attorney's fees and sanctions for a later date. The trial court then signed separate orders dismissing each of the eight consolidated ...


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