Hicks v. Grp. & Pension Adm'rs, Inc.

• Decision Date: 03 September 2015
• Docket Number: NUMBER 13–14–00607–CV, NUMBER 13–14–00608–CV
• Citation: 473 S.W.3d 518
• Parties: Gloria Hicks, Appellant, v. Group & Pension Administrators, Inc., Appellee. Gulf Coast Division, Inc. and Bay Area Healthcare Group, Ltd., Appellants, v. Group & Pension Administrators, Inc., Appellee.
• Court: Texas Court of Appeals

473 S.W.3d 518

Gloria Hicks, Appellant,

v.Group & Pension Administrators, Inc., Appellee.

Gulf Coast Division, Inc. and Bay Area Healthcare Group, Ltd., Appellants,

v.Group & Pension Administrators, Inc., Appellee.

NUMBER 13–14–00607–CV, NUMBER 13–14–00608–CV

Court of Appeals of Texas, Corpus Christi-Edinburg.

Delivered and filed September 3, 2015

James Robert Wetwiska, Houston, for Appellant.

Bryan D. Pollard, FisherBroyles LLP, Dallas, for Appellee.

Before Chief Justice Valdez, and Justices Rodriguez, and Garza

OPINION

Memorandum Opinion by Justice Garza

In these consolidated interlocutory appeals,¹ appellants Gloria Hicks ("Hicks"), Bay Area Healthcare Group, Ltd. ("BAHG"), and Gulf Coast Division, Inc. ("GCD") appeal the trial court's orders denying their motions to dismiss ("the Motions") that were filed pursuant to the Texas Citizens' Participation Act ("TCPA" or "the Act"), set forth in chapter 27 of the civil practice and remedies code.² See TEX. CIV. PRAC. & REM.CODE ANN. § 7.003 (West, Westlaw through Ch. 46, 2015 R.S.); id. § 51.014(a)(12) (West, Westlaw through Ch. 46, 2015 R.S.) (providing for the interlocutory appeal of an order denying a motion to dismiss filed under section 27.003 ). The Motions were filed in response to a lawsuit filed by appellee, Group and Pension Administrators, Inc. ("GPA"), against the appellants. Hicks and the Hospital Defendants contend that the trial court erred in denying their Motions.

In appellate cause number 13–14–607–CV, we affirm that part of the trial court's order denying Hicks's Motion to dismiss GPA's claims of business disparagement and tortious interference with prospective relations against her. We reverse that part of the trial court's order denying Hicks's Motion to dismiss GPA's claims of conspiracy and joint enterprise and coercion of a public servant against her and render judgment dismissing those claims against Hicks. In appellate cause number 13–14–608–CV, we reverse the trial court's order denying the Hospital Defendants' Motion to dismiss GPA's claims against them and render judgment dismissing those claims. We remand both causes for further proceedings consistent with this opinion, including consideration by the trial court of an award under section 27.009 of the TCPA of costs and fees relating to the Motions to dismiss. See id. § 27.009 (West, Westlaw through Ch. 46, 2015 R.S.).

I. BACKGROUND

In October 2012, GPA was one of four finalists to be awarded a contract to serve as the third-party administrator of Corpus Christi Independent School District's ("CCISD") self-funded health insurance plan. GPA asserts that on Friday, October 26, 2012, Xavier Gonzalez, an assistant superintendent of CCISD, advised GPA representatives that GPA would be awarded the third-party administrator contract on Monday, October 29, 2012.

Hicks, a Corpus Christi resident active in the community, is a member of the board of trustees for Corpus Christi Medical Center ("CCMC").³ Hicks learned of CCISD's decision to award the contract to GPA on Friday, October 26, 2012. That afternoon, Hicks sent the following email to six school board members and the superintendent of CCISD:

I am on the Board of Directors for Corpus Christi Medical Center, which includes Bay Area Hospital, Doctors Regional, ER in Portland, ER in Calallen. The message that I would like to convey is that our hospitals have worked with GPA in the past and they are very difficult with all Healthcare providers. If CCISD does elect to go with GPA[,] we will be forced to bill CCISD employees. The billing difficulties are so bad we are unable to file claims and get them paid. It is a bad situation that I wanted to make you aware of. Thank you. ⁴

Late in the afternoon on Friday, October 26, assistant superintendent Gonzalez notified a GPA representative that CCISD had decided to award the contract to a different bidder. On Monday, October 29, the school board met as scheduled and awarded the contract to a different bidder.

On March 4, 2013, GPA sued Hicks asserting claims for defamation/libel, defamation/libel per se, business disparagement, and tortious interference with a prospective business relationship. Hicks was served with the lawsuit on March 18, 2013.

On April 3, 2014, GPA filed an amended petition adding the Hospital Defendants, removing the defamation/libel claims, retaining the business disparagement and tortious interference claims, and adding claims for conspiracy, joint enterprise, and coercion of a public servant. See TEX. PENAL CODE ANN. § 36.03(a)(1) (West, Westlaw through Ch. 46, 2015 R.S.).

Hicks filed her Motion pursuant to section 27.003(b) of the civil practice and remedies code on June 2, 2014. See TEX. CIV. PRAC. & REM.CODE ANN. § 27.003(b). Hicks argued that her Motion was timely because it was filed within sixty days of the date she was served with GPA's amended petition. See id. (providing that a motion to dismiss must be filed within sixty days "after the date of service of the legal action"). On August 19, 2014, GPA filed a response to the Motion in which it argued, among other things, that Hicks's Motion must be denied because she failed to file her Motion within sixty days of the date she was served with GPA's original petition. Hicks filed a reply to GPA's response.

On June 16, 2014, the Hospital Defendants filed their Motion pursuant to section 27.003(b). The Hospital Defendants noted that the Motion was timely as it was filed within sixty days of April 16, 2014, the date of service of GPA's amended petition. See id. The Hospital Defendants argued that the basis for GPA's claims against them—Hicks's emails—are communications that are protected under the TCPA. The Hospital Defendants also argued that GPA cannot establish "by clear and specific evidence a prima facie case for each essential element" of its claims. See id. § 27.005(c) (West, Westlaw through Ch. 46, 2015 R.S.) (providing that a court must dismiss claims if, after a defendant shows that claims relate to the defendant's rights to free speech, petition, or association, a plaintiff cannot establish a prima facie case for each element of claim). GPA filed a response to the Hospital Defendants' Motion, arguing that: (1) its claims are not covered by the TCPA under the "commercial speech" exception, see id. § 27.010(b); (2) Hicks's emails are not covered by the TCPA "because they amount to criminal coercion"; (3) the Hospital Defendants failed to meet their burden to show that Hicks's emails are covered by the TCPA; and (4) GPA made a prima facie showing as to each essential element of its claims. The Hospital Defendants filed a reply in support of their Motion.

On August 28, 2014, the trial court held a hearing on both Hicks's and the Hospital Defendants' Motions. At the hearing, the Hospital Defendants preserved their right to request damages pursuant to section 27.009(1) of the TCPA. See id. § 27.009(1) (providing that if a court orders dismissal, it shall award court costs and attorneys' fees to moving party). On September 23, 2014, by separate orders, the trial court denied both Motions without stating the basis for its rulings. This interlocutory consolidated appeal followed.

II. STANDARD OF REVIEW AND APPLICABLE LAW

The TCPA provides a mechanism for early dismissal of suits based on a party's exercise of the right of free speech, the right to petition, or the right of association. See id. § 27.003. Section 27.003 allows a litigant to seek dismissal of a "legal action" that is "based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association." Id. § 27.003(a). A " ‘legal action’ means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that requests legal or equitable relief." Id. § 27.001(6) (West, Westlaw through Ch. 46, 2015 R.S.). "The statute broadly defines ‘the exercise of the right of free speech’ as ‘a communication made in connection with a matter of public concern.’ " Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex.2015) (per curiam) (citing TEX. CIV. PRAC. & REM.CODE ANN. § 27.001(3) (West, Westlaw through Ch. 46, 2015 R.S.)). "Under this definition, the right of free speech has two components: (1) the exercise must be made in a communication and (2) the communication must be made in connection with a matter of public concern." Id. "[T]he statute defines ‘communication’ as ‘the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.’ " Id. (citing TEX. CIV. PRAC. & REM.CODE ANN. § 27.001(1) (West, Westlaw through Ch. 46, 2015 R.S.)). Thus, the statute defines "communication" to include any form or medium—regardless of whether the communication takes a public or private form. Id. A "matter of public concern" is defined by the statute to include issues related to health or safety, community well-being, and the provision of services in the marketplace, among other things. See TEX. CIV. PRAC. & REM.CODE ANN. § 27.001(7) (West, Westlaw through Ch. 46, 2015 R.S.).

The Act imposes the initial burden on the movant 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 the right of free speech, the right to petition, or the right of association. Id. § 27.005(b). The Act then shifts the burden to the nonmovant, allowing the nonmovant to avoid dismissal only by "establish[ing] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). The requirement that a plaintiff present "clear and specific evidence" of "each essential element" means that "a plaintiff must provide enough detail to show the factual basis for its claim." In re Lipsky, 460 S.W.3d 579, 591 (Tex.2015) (orig. proceeding). "Though the TCPA initially demands more information about the underlying claim, the...