Gloria Hicks v. Group & Pension Administrators, Inc.

NUMBER 13-14-00607-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

GLORIA HICKS, Appellant,

v.

GROUP & PENSION
ADMINISTRATORS, INC., Appellee.

On appeal from the 94th District Court
of Nueces County, Texas.

NUMBER 13-14-00608-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG
GULF COAST DIVISION, INC.
AND BAY AREA HEALTHCARE
GROUP, LTD., Appellants,

v.

GROUP & PENSION
ADMINISTRATORS, INC., Appellee.

On appeal from the 94th District Court
of Nueces County, Texas.

OPINION
Before Chief Justice Valdez, and Justices Rodriguez, and Garza
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. §

27.003 (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

1 In appellate cause number 13-14-607-CV, the appellant is Gloria Hicks. In appellate cause
number 13-14-608-CV, the appellants are Bay Area Healthcare Group, Ltd. (“BAHG”) and Gulf Coast
Division, Inc. (“GCD”). BAHG owns and operates Corpus Christi Medical Center, a hospital system. GCD
is an affiliate of HCA, Inc., a Nashville-based owner and operator of hospitals. We refer to BAHG and GCD
collectively as “the Hospital Defendants.” Pursuant to GPA’s unopposed motion to consolidate the appeals,
we have consolidated the appeals.
2 The TCPA is also known as the Anti-SLAPP statute. See In re Estate of Check, 438 S.W.3d 829,
830 (Tex. App.—San Antonio 2014, no pet.). “SLAPP” is an acronym for “Strategic Lawsuit Against Public
Participation.” Id. at 830 n.1.

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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

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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

3 CCMC is the d/b/a for BAHG.

4 On Saturday afternoon, October 27, Hicks sent essentially the same email to four CCISD school
board members (three of whom had received the Friday email) and to the administrative assistant to the
superintendent.

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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

5
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

6
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 Act does not impose an

elevated evidentiary standard or categorically reject circumstantial evidence.” Id. When

determining whether to dismiss the legal action, the court must consider “the pleadings

and supporting and opposing affidavits stating the facts on which the liability or defense

is based.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). The court may allow specified

7
and limited discovery relevant to the motion on a showing of good cause, but otherwise

all discovery in the legal action is suspended until the court has ruled on the motion to

dismiss. Id. §§ 27.003, .006(b).

Under section 27.006 of the TCPA, the trial court may consider pleadings as

evidence. Id. § 27.006(a). The TCPA does not require a movant to present testimony or

other evidence to satisfy the movant’s evidentiary burden. Serafine v. Blunt, __S.W.3d__,

No. 03-12-00726-CV, 2015 WL 3941219, at *4 (Tex. App.—Austin June 26, 2015, no pet.

h.).

We review de novo questions of statutory construction. We consider de
novo the legal question of whether the movant has established by a
preponderance of the evidence that the challenged legal action is covered
under the Act. We also review de novo a trial court's determination of
whether a nonmovant has presented clear and specific evidence
establishing a prima facie case for each essential element of the challenged
claims.

Id. at *2 (internal citations omitted).

III. DISCUSSION

A. Hicks’s Motion to Dismiss

1. Jurisdiction

As an initial matter, we must address whether we have jurisdiction over Hicks’s

interlocutory appeal. In its brief, GPA argues that this Court lacks jurisdiction over Hicks’s

appeal because “[t]he TCPA does not grant the right of interlocutory appeal from the

denial of a motion for leave to file a motion to dismiss.” (Emphasis added.) In support of

its argument, GPA cites Summersett v. Jaiyeola, 438 S.W.3d 84, 91 (Tex. App.—Corpus

Christi 2013, pet. denied). In Summersett, the defendant filed a motion for leave to file a

motion to dismiss outside the sixty-day window from the return of service, arguing that

8
service was improper. Id. at 88. Following a hearing, the trial court stated, “[t]he only

order I’m entering today is that the Motion for Leave is denied.” Id. at 91. This Court

found that we lacked jurisdiction over the appeal because “[a] trial court’s denial of a

motion for leave or a motion for extension of time to file a motion to dismiss is neither a

ruling on the merits of the motion to dismiss, nor a denial ‘by operation of law’ of a motion

to dismiss.” Id. at 91–92.

We find GPA’s reliance on Summersett is misplaced. Here, Hicks filed a motion

to dismiss; she did not file a motion for leave to file her motion to dismiss. Similarly, the

trial court’s order denying her motion to dismiss explicitly stated that “Defendant’s motion

to dismiss is hereby DENIED.” GPA argues that after Hicks filed her motion to dismiss

and GPA filed a response, Hicks filed a “reply” in support of her motion, in which she

argued, alternatively, that the trial court should consider her motion to dismiss because

the court can extend the time to file a motion on a showing of good cause. See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.003(b) (West, Westlaw through Ch. 46, 2015 R.S.). GPA

argues that by doing so, Hicks “directly asked the trial court to grant her leave[.]”

According to GPA, “[t]he trial court could have denied the motion because it decided not

to grant leave for Hicks to file an untimely motion.” We are unpersuaded by GPA’s

argument. As noted, the Motion requested dismissal, not leave to file, and the order

denying the Motion explicitly denied the motion to dismiss. The civil practice and

remedies code expressly provides for interlocutory appeal of a trial court’s order denying

a motion to dismiss filed under the TCPA. See id. § 51.014(a)(12). We conclude that we

have jurisdiction over this appeal and proceed to consider the remaining appellate issues.

2. Trial Court’s Denial of Hicks’s Motion

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 By a single issue, Hicks contends that the trial court erred in denying her Motion

to dismiss because: (1) she established that GPA’s claims arose out of her exercise of

free speech and right to petition the government; and (2) GPA failed to establish by “clear

and specific evidence” a prima facie case for each element of its claims. By sub-issues,

she further argues: (1) ) her Motion was timely filed because it was filed within sixty days

after the date of service of GPA’s amended petition; and (2) GPA’s claims are not exempt

from application of the TCPA either by the “commercial speech” exemption or because

the speech constitutes criminal coercion of a public servant.

a. Timeliness of Hicks’s Motion

We begin with Hicks’s sub-issue by which she contends that her Motion to dismiss

was timely filed because it was filed within sixty days after service of GPA’s amended

petition. The statute requires that a motion to dismiss must be filed within sixty days of

the “legal action.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(b). “Legal action” is

defined as “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).

Hicks argues that GPA’s amended petition “reformulat[ed] the entire litigation” because it

added the Hospital Defendants and asserted new claims against her for conspiracy with

the Hospital Defendants and for tortious interference on the basis of “coercion of a public

servant.” Hicks also argues that she “could not have filed her motion to dismiss within

sixty days after service of GPA’s Original Petition without the risk of waiving her venue

challenges.”

We are unpersuaded that Hicks’s arguments prevail as to all of GPA’s claims.

GPA’s amended petition added new claims against Hicks for conspiracy and joint

10
enterprise and coercion of a public servant. However, the business disparagement and

tortious interference claims asserted in GPA’s amended petition—claims based on

Hicks’s emails—were also made in its original petition. Thus, Hicks was on notice that

GPA was asserting business disparagement and tortious interference claims against her

in March 2013—over a year before she filed her Motion in June 2014.

In support of her argument that her Motion was timely filed, Hicks cites Better Bus.

Bureau of Metro. Dallas, Inc. (“BBB”) v. Ward. 401 S.W.3d 440, 443 (Tex. App.—Dallas

2013, pet. denied). In Ward, a law firm sued the BBB based on the BBB’s business rating

of “F” assigned to the firm. Id. at 442. The suit was filed before the effective date of the

TCPA. Months later, after the effective date of the TCPA, Ward joined as a party plaintiff

in an amended petition. Id. at 443. The BBB filed a motion to dismiss Ward’s individual

claims against the BBB—the claims added after the effective date of the TCPA—but did

not seek dismissal of the law firm’s claims against the BBB. Id. The trial court denied the

BBB’s motion to dismiss. Id. The Dallas Court of Appeals found that “[t]he definition of

‘legal action’ in the statute is broad and evidences a legislative intent to treat any claim

by any party on an individual and separate basis.” Id. (citing TEX. CIV. PRAC. & REM. CODE

ANN. § 27.001(6)). The court found that the TCPA applied to the BBB’s business review

and that the trial court erred in denying the BBB’s motion to dismiss under the TCPA. Id.

at 445.

In In re Estate of Check, the San Antonio Court of Appeals rejected the categorical

argument that Hicks makes here: that a motion to dismiss is timely filed if filed within sixty

days of an amended petition. 438 S.W.3d 829, 836 (Tex. App.—San Antonio 2014, no

pet.). The Check Court found that “such an interpretation would lead to absurd results

11
not intended by the Legislature.” Id. The court noted that to permit the filing of any

substantive pleading to

reset the deadline for a motion to dismiss . . . is irrational and at odds with
one of the purposes of the Act, which is to allow a defendant early in the
lawsuit to dismiss claims that seek to inhibit a defendant’s constitutional
rights to petition, speak freely, associate freely, and participate in
government as permitted by law.

Id. In Check, the movant asserted that his motion to dismiss was timely filed because it

was filed within sixty days of service of the nonmovant’s amended counterclaim. Id. The

movant cited Ward in support of his argument that the amended counterclaim reset the

sixty-day deadline. Id. at 837. The Check court, however, concluded that Ward “actually

undermine[d]” the movant’s position. The court noted that in Ward, the amended petition

had asserted new claims; therefore, “because the plaintiff had added new claims, a new

deadline was mandated.” Id. The Check court explained, “[e]xtrapolating from Ward, in

the absence of new parties or claims, the deadline for filing a motion to dismiss would run

from the date of service of the original ‘legal action.’” Id. The court then distinguished

Ward on the ground that the Check nonmovant’s amended counterclaim had not added

new parties or claims. See id. Therefore, the court concluded that the movant’s motion

to dismiss was untimely. Id.

In James v. Calkins, the First Court of Appeals determined that the plaintiffs’ claims

asserted in an amended petition—filed after the effective date of the TCPA—were based

on different factual allegations than those in the original petition. 446 S.W.3d 135, 146

(Tex. App.—Houston [1st Dist.] 2014, pet. filed). The Calkins court found that all of the

causes of action in the amended petition “included substantively different factual

12
allegations” and were new causes of action; therefore, the TCPA applied to all of the

claims. Id.

In Miller Weisbrod, LLP v. Llamas-Soforo, the El Paso Court of Appeals also

rejected the position that Hicks urges us to adopt here: to define the term “legal action”

broadly to include any subsequent pleading filed in a lawsuit. No. 08-12-00278-CV, 2014

WL 6679122, at *9 (Tex. App.—El Paso Nov. 25, 2014, no pet.) . In Miller Weisbrod, a

law firm that was added as a defendant in a first amended petition argued that its motion

to dismiss was timely filed because it was filed within sixty days of a second amended

petition that added two individual defendants. Id. The El Paso Court disagreed, stating

that, “[w]e see nothing in the statute or its history and purpose to indicate the Legislature

intended to create a perpetual opportunity to file a motion to dismiss whenever a pleading

qualifies as a ‘legal action’ under Section 27.001(6).” Id. at *10. The court noted that the

law firm was named as a defendant and served with the first amended petition, which

triggered the law firm’s sixty-day deadline for filing a motion to dismiss under the TCPA.

Id. at *11. Because the law firm did not file its motion within the sixty-day deadline, the

El Paso Court found that it was not timely filed. Id.

In the present case, Hicks argues—as did the law firm in Miller Weisbrod—that her

motion to dismiss was timely filed because it was filed within sixty days of GPA’s amended

petition. We agree with the Ward court’s statement that “[t]he definition of ‘legal action’

in the statute is broad and evidences a legislative intent to treat any claim by any party

on an individual and separate basis.” Ward, 401 S.W.3d at 443. As noted, GPA’s original

petition asserted claims of business disparagement and tortious interference with

prospective relations against Hicks, and those claims were retained in GPA’s amended

13
petition.5 As to those two claims, therefore, Hicks’s sixty-day deadline to file a motion to

dismiss was triggered when she was served with GPA’s original petition and her Motion,

filed over a year later, was untimely filed as to those two claims. See In re Estate of

Check, 438 S.W.3d at 836; Miller Weisbrod, LLP, 2014 WL 6679122, at *11. Accordingly,

we overrule Hicks’s timeliness sub-issue as it pertains to her Motion to dismiss GPA’s

business disparagement and tortious interference with prospective relations claims

against her.

GPA’s amended petition, however, asserted two new claims against Hicks:

“conspiracy and joint enterprise” and criminal coercion of a public servant. See TEX.

PENAL CODE ANN. § 36.03(a)(1) (West, Westlaw through Ch. 46, 2015 R.S.). Both claims

are—like GPA’s business disparagement and tortious interference claims—based on

Hicks’s emails. In its “conspiracy and joint enterprise” claim, GPA asserts that Hicks and

the Hospital Defendants “combined or collaborated their efforts to engage in the unlawful

practices [of business disparagement and tortious interference with prospective

relations].” GPA asserts that “[a]ll of the defendants, or, alternatively, at least one of the

defendants, committed an unlawful, overt act or acts to further the object or course of

action. . . . At least one defendants, [sic] though more likely all of the defendants

respectively, committed a tort against GPA while acting within the scope of the

enterprise.” Although no “tort” or “unlawful” act is specifically identified, the only conduct

complained of is Hicks’s emails.

GPA’s “coercion of a public servant” claim is included in a section added to GPA’s

tortious interference with prospective relations claim. Specifically, GPA alleged that:

5 All of GPA’s claims are factually based on Hicks’s emails.

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 Defendants coerced seven members of the CCISD Board of Trustees and
the CCISD Superintendent with a threat to retaliate against CCISD through
a campaign of direct billing CCISD teachers if CCISD contracted with GPA
as CCISD intended to do. Using this threat as a means of coercion,
Defendants influenced public servants, i.e. the CCISD Board of Trustees
and the CCISD Superintendent, in the specific exercise of their official
powers and the specific performance of their official duties.

Because these two claims against Hicks were first asserted in GPA’s amended petition,

we conclude that Hicks’s Motion to dismiss was timely filed as to these two claims. See

In re Estate of Check, 438 S.W.3d at 837; Ward, 401 S.W.3d at 445.

Accordingly, we sustain Hicks’s timeliness sub-issue as it pertains to GPA’s

conspiracy and joint enterprise and coercion of a public servant claims against her. We

therefore proceed to determine whether the trial court erred in denying Hicks’s Motion as

to those claims under the TCPA.

b. Application of TCPA to GPA’s Conspiracy and Coercion Claims

We next determine whether Hicks established by a preponderance of the evidence

that the TCPA applies to her statements. See TEX. CIV. PRAC. & REM. CODE ANN. §

27.005(b). Section 27.003 provides that a party may file a motion to dismiss if a legal

action “is based on, relates to, or is in response to [that] party's exercise of the right of

free speech, right to petition, or right of association.” Id. § 27.003(a). Section 27.001(3)

defines “exercise of the right of free speech” as “a communication made in connection

with a matter of public concern.” Id. § 27.001(3). “Matter of public concern” is defined as

including an issue related to “health or safety,” “environmental, economic, or community

well-being,” and “a good, product, or service in the marketplace.” Id. § 27.001(7)(A), (B),

(E). “Exercise of the right to petition” is defined as including a communication pertaining

to “a proceeding of the governing body of any political subdivision of this state.” Id. §

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27.001(4)(A)(vii). Section 27.005(b) provides that a court “shall dismiss a legal action

against a moving party if the moving party shows by a preponderance of the evidence”

that the action is based on, relates to, or is in response to the moving party's exercise of

the right of free speech, right to petition, or right of association. Id. § 27.005(b).

The record shows that Hicks’s emails related to whether, if CCISD selected GPA

as its third-party administrator, insurance claims made by CCISD’s teachers would be

promptly and satisfactorily paid. Hicks’s email expressed concern that GPA’s past

performance as being “difficult” with health care providers likely would result in CCISD’s

employees being billed for health care costs. We conclude that Hicks’s emails related to

the health and economic well-being of CCISD’s employees and also related to a “service”

offered by GPA in the marketplace. See id. § 27.001(7)(A), (B), (E). We conclude, based

on the facts alleged in GPA’s pleadings and in response to Hicks’s Motion, that Hicks met

her initial burden of showing by a preponderance of the evidence that her statements

were made in connection with a matter of public concern and that GPA’s conspiracy and

coercion of a public servant claims relate to those statements so that the TCPA applies

to those claims. See id. § 27.001(3), (7)(A), (B), (E), 27.005(b); see In re Lipsky, 460

S.W.3d at 586.

GPA contends that Hicks’s emails do not relate to the exercise of her right to free

speech or the right to petition because: (1) the TCPA applies only to public speech, and

Hicks’s emails were private speech; (2) Hicks’s statements are exempt from the TCPA

under the commercial speech exemption under section 27.010(b), see TEX. CIV. PRAC. &

REM. CODE ANN. § 27.010(b); and (3) Hicks’s emails constitute criminal coercion under

the penal code and therefore fall outside the protection of the TCPA. See TEX. PENAL

16
CODE ANN. § 36.03(a)(1). After the parties filed briefs, the Texas Supreme Court rejected

GPA’s first argument in Lippincott, 462 S.W.3d at 509. The Court held that the statutory

definition of “communication” includes both public and private communication. See id.

GPA also argues that the TCPA does not apply to Hicks’s statements because the

statements fall within the “commercial speech” exemption. Section 27.010(b) provides

that:

This chapter does not apply to a legal action brought against a person
primarily engaged in the business of selling or leasing goods or services, if
the statement or conduct arises out of the sale or lease of goods, services,
or an insurance product, insurance services, or a commercial transaction in
which the intended audience is an actual or potential buyer or customer.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.010 (West, Westlaw through Ch. 46, 2015 R.S.).

Section 27.010(b) thus provides, in relevant part, that a statement is exempt from the

TCPA if the action is against a person primarily engaged in selling services and the

statement arises from the sale of services. See id. This provision has been construed

such that, for the exemption to apply, the statement must be made for the purpose of

securing sales in the goods or services of the person making the statement. See

Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 88–89

(Tex. App.—Houston [1st Dist.] 2013, pet. denied). The party asserting the exemption

(here GPA) bears the burden of proving its applicability. Id. at 89.

GPA argues that Hicks’s emails fall within the commercial speech exemption

because she was a member of the Hospital Defendants’ Board of Directors and the

Hospital Defendants “primarily engage in the business of selling healthcare services.”

According to GPA, “Hicks, on behalf of the Hospital Defendants, endeavored to place her

hospitals at an advantageous position to sell healthcare services at higher

17
reimbursements—that would be paid by CCISD’s self-funded insurance plan.” Hicks

responds that as an unpaid member of the hospital’s governing board, she “was not

selling anything.” Hicks notes that “[t]he only services at issue were third[-]party

insurance companies’ services, and only GPA was selling them.” GPA continues to

assert that Hicks and the Hospital Defendants had an economic interest in the CCISD

board’s decision to award the insurance contract to a different provider. Even assuming,

without deciding, that GPA’s assertion is correct—that Hicks and the Hospital Defendants

stood to gain if the CCISD board chose a different provider—that does not alter the fact

that Hicks was not “a person primarily engaged in the business of selling or leasing goods

or services.” See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b); see also Schimmel v.

McGregor, 438 S.W.3d 847, 857–58 (Tex. App.—Houston [1st Dist.] 2014, pet. denied)

(finding that a lawyer’s statements that allegedly induced the City of Galveston to back

out of an agreement to purchase properties was not commercial speech because his

intended audience, the City, was not a “potential buyer or customer” of his services). We

conclude that GPA has failed to establish the applicability of the “commercial speech”

exemption. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b); Schimmel, 438 S.W.3d

at 857–58.

We next address GPA’s argument that Hicks’s emails do not constitute protected

conduct under the TCPA because “they amount to criminal coercion.” A person commits

the offense of coercion of a public servant if he “influences or attempts to influence a

public servant in a specific exercise of his official power or a specific performance of his

official duty or influences or attempts to influence a public servant to violate the public

servant's known legal duty[.]” TEX. PENAL CODE ANN. § 36.03(a)(1). The penal code

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defines “coercion” as “a threat, however communicated” to take certain actions. Id. §

1.07(a)(9) (West, Westlaw through Ch. 46, 2015 R.S.). Thus, “coercion” must involve a

“threat.” Because the penal code does not define “threat,” we must give the term its

common ordinary meaning. Jaster v. Comet II Const., Inc., 438 S.W.3d 556, 563–64

(Tex. 2014). “Threat” is defined, in relevant part, as “an expression of intention to inflict

evil, injury, or damage.” See Merriam-Webster’s Online Dictionary, (last visited July 2, 2015).

According to GPA, Hicks “threatened the school board members that if the CCISD

retained GPA to administer the CCISD’s self-funded health insurance plan, then the

Hospital Defendants would refuse to work with the CCISD’s self-funded health insurance

plan and would instead ‘be forced to bill CCISD employees.’” We do not construe Hicks’s

emails as expressing an intention to inflict evil, injury, or damage, and therefore, the

emails do not constitute a “threat.” See id. Accordingly, Hicks’s emails do not constitute

coercion of a public servant.

Because we have held that Hicks’s emails—which formed the basis for GPA’s

claims of coercion of a public servant and conspiracy and joint enterprise—constitute

protected conduct under the TCPA, we must next determine whether GPA met its burden

to establish, by clear and specific evidence, a prima facie case for every essential element

of its claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).

Because we have already concluded that Hicks’s emails do not constitute a

“threat,” GPA cannot establish a prima facie case for coercion of a public servant. See

TEX. PENAL CODE ANN. §§ 1.07(a)(9), 36.03(a)(1). In other words, GPA has not met its

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burden of establishing by clear and specific evidence a prima facie case for the “threat”

element of this claim. See id.; TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).

Civil conspiracy requires (1) two or more persons who agree upon an object, (2) a

meeting of minds on the object to be accomplished, and (3) one or more overt, unlawful

acts committed in furtherance of the conspiracy, (4) which results in damages. Guevara

v. Lackner, 447 S.W.3d 566, 582 (Tex. App.—Corpus Christi 2014, no pet.). The

elements of a joint enterprise are (1) an agreement (express or implied) among the

members of the group, (2) a common purpose to be carried out by the group, (3) a

community of pecuniary interest among the members in that common purpose, and (4)

an equal right to direct and control the enterprise. St. Joseph Hosp. v. Wolff, 94 S.W.3d

513, 525, 530 (Tex. 2003). An appellate court first looks to the evidence of an agreement

or agreements among the members of the group to ascertain their possible common

purposes, and then it considers if the evidence supports a finding of a joint enterprise with

respect to each possible common purpose. Id. at 531.

In its amended petition, in the section asserting a claim for “conspiracy and joint

enterprise,” GPA asserts that the defendants “collaborated their efforts to engage in the

unlawful practices set forth above.” As to GPA’s “joint enterprise” theory, GPA’s amended

petition does not identify any “agreement” or parties to it, does not identify any “common

purpose,” and does not identify any “community of pecuniary interest” involved in the

alleged joint enterprise. See id.

Our review of GPA’s amended petition reveals that the only allegedly “unlawful

practice” about which GPA complains as a basis for its conspiracy and joint enterprise

claim is Hicks’s emails. GPA has not provided evidence of—or even identified—any other

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“unlawful practice.” We have already determined that Hicks met her initial burden of

showing by a preponderance of the evidence that her statements were made in

connection with a matter of public concern so that the TCPA applies to GPA’s “conspiracy

and joint enterprise” claim. GPA offers no other evidence regarding the alleged unlawful

nature of Hicks’s act of sending the emails. Therefore, we conclude that GPA has not

established, by clear and specific evidence, a prima facie case on its claims for conspiracy

or joint enterprise. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c).

We therefore hold that because Hicks established by a preponderance of the

evidence that GPA’s conspiracy and joint enterprise and coercion of a public servant

claims are based on, relate to, or are in response to her exercise of her right to free

speech, and because GPA failed to establish a prima facie case on any essential element

of its conspiracy and joint enterprise or coercion of a public servant claims, the trial court

erroneously denied Hicks’s Motion to dismiss those claims under the TCPA. See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(b), (c). We reverse that part of the trial court’s

order denying Hicks’s Motion to dismiss GPA’s conspiracy and joint enterprise and

coercion of a public servant claims against Hicks and render judgment dismissing those

claims against Hicks.

B. The Hospital Defendants’ Motion to Dismiss

By a single issue, the Hospital Defendants contend on appeal that the trial court

erred in denying their Motion.

In their Motion, the Hospital Defendants argued that: (1) they can show by a

preponderance of the evidence that all of GPA’s claims against them are based on Hicks’s

emails, in which she was exercising her right of free speech and right to petition; and (2)

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GPA cannot establish by clear and specific evidence a prima facie case for each essential

element of its claims. See id. In its amended petition, GPA asserted against the Hospital

Defendants the same claims it asserted against Hicks: business disparagement, tortious

interference with prospective contract, and conspiracy and joint enterprise. All of GPA’s

claims are based on Hicks’s emails.

In its response, GPA argued 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.

We have already determined that (1) Hicks’s emails constitute protected conduct

under the TCPA, (2) the emails do not fall within the “commercial speech” exemption, and

(3) the emails do not constitute criminal coercion. For the reasons discussed above, we

find that the Hospital Defendants have established by a preponderance of the evidence

that all of GPA’s claims are based on Hicks’s exercise of her right to free speech. See

id. § 27.005 (b). To defend against the Hospital Defendants’ Motion, GPA’s burden under

the TCPA was to establish by clear and specific evidence a prima facie case for each

essential element of its claims against the Hospital Defendants. See id. § 27.005(c).

1. Business Disparagement

“Business disparagement or ‘injurious falsehood applies to derogatory publications

about the plaintiff’s economic or commercial interests.’” In re Lipsky, 460 S.W.3d at 591

(quoting 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW OF TORTS § 656,

22
at 615 (2d ed. 2011)). “‘To prevail on a business disparagement claim, a plaintiff must

establish that (1) the defendant published false and disparaging information about it, (2)

with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.’” Id.

at 592 (quoting Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex.

2003)). In their Motion, the Hospital Defendants asserted that GPA “cannot present by

clear and specific evidence a prima facie case that [Hicks’s] statements were false,

committed with malice and without privilege, or caused [GPA] special damages—i.e.,

caused [GPA] to lose the bid from the School District.”

In its response, GPA pointed to the following evidence in support of its claim: (1)

Hicks’s emails; (2) an unsworn “declaration” by Lynn Huckaby, branch director of GPA’s

San Antonio, Texas, office; and (3) an unsworn “declaration” by Jeff McPeters, a GPA

senior sales executive.6 Huckaby’s declaration states, in relevant part, that: (1) on Friday,

October 26, 2012, Huckaby and other GPA staff members met with Xavier Gonzalez,

CCISD Assistant Superintendent; (2) on the afternoon of October 26, 2012, Gonzalez

said that GPA had won the CCISD business; and (3) around 5:00 p.m. on October 26, 7

Gonzalez called and said “GPA did not end up getting the business after all, despite what

he had said earlier.” The McPeters declaration states, in relevant part:

Because of the business disparagement and interference by Gloria Hicks
and Corpus Christi Medical Center with GPA’s prospective relations with
the Corpus Christi Independent School District, GPA suffered direct
pecuniary loss by losing the fees to service the subject contract in the
approximate amount of $2,289,528, which includes $603,792 for fees for

6 We note that neither declaration includes a jurat as specified in section 132.001(d) of the civil

practice and remedies code. See TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(d) (West, Westlaw through
Ch. 46, 2015 R.S.).

We note the declaration states Gonzalez called at 5:00 p.m. “on Friday, October 29, 2012.” We
7

assume that “29” is a typographical error.

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 claims administration, $129,384 for utilization review, and approximately
$30,000 for other servicing fees on a yearly basis.

In their reply to GPA’s response, the Hospital Defendants objected to McPeters’s

declaration as conclusory “because it fails to provide underlying facts to support the

conclusion these Defendants disparaged or interfered with GPA’s prospective relations

and it contains unsupported legal conclusions.” Similarly, the Hospital Defendants

objected to Huckaby’s declaration as containing inadmissible hearsay, i.e., Gonzalez’s

statements to Huckaby.

Assuming, without deciding, that the declarations are adequate substitutes for an

affidavit, see TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(a) (West, Westlaw through Ch.

46, 2015 R.S.), we agree that McPeters’s declaration is conclusory. In Lipsky, the

supreme court found “general averments of direct economic losses and lost profits”

insufficient to satisfy the minimum requirements of the TCPA. See In re Lipsky, 460

S.W.3d at 593. The Court noted that “[o]pinions must be based on demonstrable facts

and a reasoned basis.” Id.

With regard to GPA’s hearsay objection to Huckaby’s declaration, we note that an

objection that a declaration contains hearsay is an objection to the form of the declaration.

Stone v. Midland Multifamily Equity REIT, 334 S.W.3d 371, 374 (Tex. App.—Dallas 2011,

no pet.). A defect in the form of a declaration must be objected to in the trial court and

failure to obtain a ruling from the trial court on an objection to the form of a declaration

waives the objection. Id. Here, although the Hospital Defendants raised their hearsay

objection to the trial court, the record does not reflect that the trial court ruled on the

objection. Therefore, the Hospital Defendants waived their hearsay objection. See id.

Nonetheless, even considering the hearsay, we conclude that the Huckaby declaration

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provides no evidence of causation. The declaration simply states that, on the afternoon

of October 26, Gonzalez said that GPA had won the CCISD business and then later that

day, said that it had not. The declaration provides no clear and specific evidence that

Hicks’s emails caused CCISD to award the contract to another bidder.

Even if we consider GPA’s pleadings, we find no evidence establishing that Hicks’s

emails caused CCISD to award the contract to another bidder. GPA alleged in its

amended petition: “Mr. Gonzalez told Mr. McPeters that the Superintendent and some

board members received an email that really stirred them up (i.e., the October 26 email),

that the email was ‘political,’ and that due to the email, CCISD decided not to award the

contract to GPA.” However, as noted above, McPeters’s declaration does not expressly

state that Hicks’s emails caused CCISD to award the contract to another bidder.

We conclude that GPA’s supporting evidence does not establish, by clear and

specific evidence, a prima facie case on the essential element of causation. See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.005(c).

2. Tortious Interference with Prospective Business Relations

To prevail on a claim for tortious interference with prospective business relations,

a plaintiff must establish that (1) a reasonable probability existed that the plaintiff would

have entered into a business relationship with a third party; (2) the defendant either acted

with a conscious desire to prevent the relationship from occurring or knew the interference

was certain or substantially certain to occur as a result of the conduct; (3) the defendant's

conduct was independently tortious or unlawful; (4) the interference proximately caused

the plaintiff injury; and (5) the plaintiff suffered actual damage or loss as a result.

McGregor, 438 S.W3d at 860 (citing Coinmach Corp. v. Aspenwood Apartment Corp.,

25
417 S.W.3d 909, 923 (Tex. 2013); Wal–Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 726

(Tex. 2001)). In GPA’s response to the Hospital Defendants’ Motion, it asserts, in a

section addressing its tortious interference claim, that “[d]efendants’ interference caused

CCISD to not award the contract to [GPA], as CCISD had intended and informed [GPA]

it would.” As evidence to support this claim, GPA cites Huckaby’s declaration. As we

have noted, however, Huckaby’s declaration provides no such evidence of causation.

We conclude that GPA’s supporting evidence does not establish, by clear and specific

evidence, a prima facie case on the essential element of causation in its claim for tortious

interference with prospective business relations. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.005(c); McGregor, 438 S.W.3d at 860–61 (“The fact that Schimmel's alleged conduct

occurred roughly contemporaneously with the City of Galveston's and the Department of

Public Safety's consideration of whether to move forward with the purchases does not

establish that Schimmel's conduct caused the governmental agencies to act as they did.)

(emphasis in original).

3. Conspiracy and Joint Enterprise and Coercion of a Public Servant

As noted earlier, the sending of Hicks’s emails is the only allegedly “unlawful

practice” that the Hospital Defendants are accused of “conspiring” to engage in. We have

already determined that Hicks met her burden of showing that her statements were made

in connection with a matter of public concern so that the TCPA applies to GPA’s

conspiracy and joint enterprise claim. Because GPA’s conspiracy and joint enterprise

claims against the Hospital Defendants are based solely on Hicks’s emails, and because

we have found that GPA failed to establish a prima facie case on the essential element

of causation on either of GPA’s alleged underlying torts, we conclude that GPA has not

26
established, by clear and specific evidence, a prima facie case on its claims against the

Hospital Defendants for conspiracy and joint enterprise. See West Fork Advisors, LLC v.

SunGard Consulting Services, LLC, 437 S.W.3d 917, 920 (Tex. App.—Dallas 2014, pet.

filed) (“Conspiracy is a derivative tort because ‘a defendant's liability for conspiracy

depends on participation in some underlying tort for which the plaintiff seeks to hold at

least one of the named defendants liable.’”).

We also have already determined that GPA did not establish coercion of a public

servant by clear and specific evidence. Accordingly, GPA’s claim of coercion of a public

servant against the Hospital Defendants also fails.

We hold that the trial court erred in denying the Hospital Defendants’ Motion to

dismiss GPA’s claims. We sustain the Hospital Defendants’ sole issue.

IV. CONCLUSION

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, and remand those claims to

the trial court. 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.

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 the Hospital

Defendants and render judgment dismissing GPA’s claims against the Hospital

Defendants. We remand both causes for further proceedings consistent with this opinion,

including consideration by the trial court of an award of costs and fees relating to the

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motions to dismiss under section 27.009 of the TCPA. See id. § 27.009 (West, Westlaw

through Ch. 46, 2015 R.S.).

DORI C. GARZA
Justice

Delivered and filed the
3rd day of September, 2015.

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