AFFIRM; and Opinion Filed May 22, 2019.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-18-00654-CV
JEFFREY ERDNER, D.O. AND THE EMERGENCY CENTER AT WEST 7TH, LLC,
Appellants
V.
HIGHLAND PARK EMERGENCY CENTER, LLC, Appellee
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-01059
OPINION
Before Justices Whitehill, Molberg, and Reichek
Opinion by Justice Molberg
Highland Park Emergency Center, LLC (HPEC) sued Jeffrey Erdner, D.O. for breach of
fiduciary duty. It sued The Emergency Center at West 7th, LLC (West 7th) for aiding and abetting
the breach. Specifically, HPEC alleged that Erdner, one of its members, usurped an opportunity
to expand HPEC’s business operations for his own personal benefit, communicated with investors
about forming West 7th to capitalize on the opportunity, and misled HPEC and its other members
about his activities.
Appellants filed a motion to dismiss HPEC’s claims pursuant to the Texas Citizens
Participation Act, TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011 (the TCPA). Following a
hearing, the trial court denied the motion. In two issues, appellants argue the trial court erred by
denying the motion to dismiss because the TCPA applies to HPEC’s claims and HPEC failed to
establish by clear and specific evidence a prima facie case for each element of its claims.
The TCPA applies only if HPEC’s claims are based on, related to, or in response to
appellants’ exercise of one of the rights protected by the statute, each of which requires a
“communication.” Appellants assert they are entitled to the protection of the statute because
Erdner’s communications with other investors constituted the exercise of the right of association
and the right of free speech, as defined by the TCPA.
We conclude appellants failed to meet their burden of establishing the TCPA applies to
HPEC’s claims because Erdner’s communications did not (1) involve the public or citizen’s
participation required for the exercise of the right of association or (2) relate to a matter of public
concern as required for the exercise of the right of free speech. Accordingly, we affirm the trial
court’s order denying the motion to dismiss.
Background
HPEC, a member-managed limited liability company, operates a freestanding emergency
room (FSER) in Dallas. In 2011, Erdner was admitted as a member of HPEC and named as one
of its managers. Erdner was considered to be the chief financial officer of HPEC.
On December 16, 2013, Perren Gasc of Centennial Retail Services sent an email to “admin”
at HPEC about an “HP Emergency Care Site” in Fort Worth. Gasc indicated the location proposed
for a new FSER was a mixed-use project similar to HPEC’s location in Dallas. Gasc attached
marketing information to the email and inquired as to who would be the best person to speak to
regarding the opportunity.
HPEC alleges that Erdner, the only member of HPEC who had access to the “admin” email,
became aware of the opportunity but did not disclose it to the other members of HPEC. Instead
Erdner contacted investors in Arizona about the opportunity and formed a number of limited
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liability companies, including West 7th, to hide his conduct. West 7th ultimately built an FSER
in the same area as proposed by Gasc in his email.
Erdner, on the other hand, contends the “front desk” at HPEC monitored the “admin” email,
and he did not see the email from Gasc. Rather, he was approached in December 2013 by a
neighbor and long-time friend who offered him an investment opportunity. The opportunity was
available only to Erdner individually and not to the other members of HPEC. Erdner spoke with
HPEC’s attorney about the investment opportunity and was told the HPEC Company Agreement
did not prevent him from taking advantage of the opportunity and he was not required to tell the
other members of HPEC about the opportunity.
Erdner claims that, because he wanted to be transparent, he disclosed his involvement in
the investment opportunity to the other members of HPEC. In a July 20, 2014 email to one of the
other members, Erdner stated he had been contacted by a start-up medical company, his work for
that company would be from home on his own time, and there would be no shift-work. Erdner
stated the new company “deals with a variety of aspects, including medical software, hospital
management, ER physician contracts, ER physician management, and hospital/ER development.”
He represented that most of the new company’s work “intends to be outside of Texas,” but the
company was interested in opening “a limited number of free standing ER’s in Texas.” Erdner
stated the new company had agreed to abide by the non-compete clause in HPEC’s Company
Agreement, and the work would “by no means affect anything from the HPEC standpoint.”
On July 25, 2014, Erdner sent another email, this time to all the other members of HPEC.
Erdner stated he was not joining a group of doctors whose “mission” was to open FSERs. Rather,
the new company had a primary focus of “micro-hospitals” in states in which FSERs were not
protected by law. Following its initial discussions with Erdner, the company expressed an interest
in “a minimal FSER involvement in Texas and Colorado.” Erdner stated that HPEC was his
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primary job and responsibility, his commitment and goals toward HPEC were “unwavering,” and
he would not share “insider information” with the new company.
Erdner withdrew as a member of HPEC on May 2, 2015. West 7th opened an FSER in
Fort Worth in June or July of 2016. HPEC alleged that Erdner and his partners subsequently
opened an FSER in Arlington and had plans to open one in San Antonio and that Erdner also
“parlayed” the initial opportunity for the Fort Worth FSER into four emergency centers in Arizona.
HPEC sued Erdner for breach of fiduciary duty for usurping HPEC’s opportunity to open
an FSER in Fort Worth and West 7th for aiding and abetting Erdner’s conduct. HPEC specifically
alleged that Erdner failed to offer or advise HPEC or its members of the Fort Worth opportunity,
used “corrupted business judgment” to withhold information about the opportunity from HPEC
and its members, made misleading and materially false representations to HPEC and its members
about the scope and nature of his separate business dealings, and misappropriated HPEC’s
confidential and proprietary information for his personal benefit.
Appellants filed a motion to dismiss HPEC’s claims pursuant to the TCPA. Appellants
asserted that HPEC’s claims were based on, related to, or in response to appellants’ exercise of
their right of association and right of free speech and that HPEC could not produce clear and
specific evidence of a prima facie case for each claim. The trial court denied the motion to dismiss,
and appellants filed this interlocutory appeal.
Applicable Law and Standard of Review
The TCPA “protects citizens . . . from retaliatory lawsuits that seek to intimidate or silence
them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The stated purpose of
the statute is to “encourage and safeguard the constitutional rights of persons to petition, speak
freely, associate freely, and otherwise participate in government to the maximum extent permitted
by law and, at the same time, protect the rights of a person to file meritorious lawsuits for
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demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002; see also ExxonMobil
Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam) (Coleman II). We
construe the TCPA “liberally to effectuate its purpose and intent fully.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.011(b); see also State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018).
“To effectuate the statute’s purpose, the Legislature has provided a two-step procedure to
expedite the dismissal of claims brought to intimidate or to silence a defendant’s exercise of [the]
First Amendment Rights” protected by the statute. Coleman II, 512 S.W.3d at 898; see also TEX.
CIV. PRAC. & REM. CODE ANN. §§ 27.003(a), .005(b); Youngkin v. Hines, 546 S.W.3d 675, 679
(Tex. 2018). The movant bears the initial burden of showing by a preponderance of the evidence
that the legal action is based on, relates to, or is in response to the movant’s exercise of the right
of free speech, the right to petition, or the right of association. TEX. CIV. PRAC. & REM. CODE
ANN. § 27.005(b); see also S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847
(Tex. 2018). If the movant makes this showing, the burden shifts to the non-movant to establish
by clear and specific evidence a prima facie case for each essential element of its claims. TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(c); see Elliott, 564 S.W.3d at 847.
Whether the TCPA applies to HPEC’s claims is an issue of statutory interpretation that we
review de novo. See Youngkin, 546 S.W.3d at 680. In construing the statute, we “ascertain and
give effect to the Legislature’s intent as expressed in the language of the statute.” Harper, 562
S.W.3d at 11; see also Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 58 (Tex. 2011)
(“Legislative intent . . . remains the polestar of statutory construction.” (internal citations omitted)).
We consider both the specific statutory language at issue and the statute as a whole. In re Office
of Att’y Gen., 422 S.W.3d 623, 629 (Tex. 2013) (orig. proceeding); see also Youngkin, 546 S.W.3d
at 680 (“[L]egislative intent derives from an act as a whole rather than from isolated portions of
it.”).
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We endeavor to read the statute contextually, giving effect to every word, clause, and
sentence. In re Office of Att’y Gen., 422 S.W.3d at 629; see also Norman, 342 S.W.3d at 58 (noting
courts should “never” apply requirement that Legislature clearly and unambiguously express its
intent to waive immunity “mechanically to defeat the law’s purpose or the Legislature’s intent”).
We apply the statute’s words according to their plain and common meaning, “unless a contrary
intention is apparent from the context, or unless such a construction leads to absurd results.”
Youngkin, 546 S.W.3d at 680; see also Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011)
(“The plain meaning of the text is the best expression of legislative intent unless a different
meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results.”).
Although we must adhere to the definitions supplied by the Legislature in the TCPA, Adams v.
Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); Youngkin, 546 S.W.3d at 680,
in the process of applying those “isolated” definitions, we are required to construe individual words
and provisions in the context of the statute as a whole, Youngkin, 546 S.W.3d at 680–81.
Analysis
In their first issue, appellants assert they met their initial burden of showing the TCPA
applies because HPEC’s claims are based on, related to, or in response to appellants’ exercise of
the right of association or the right of free speech. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(b). Both the right of association and the right of free speech, as defined by the TCPA,
require a “communication,” see TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2)–(3), which
includes “the making or submitting of a statement or document in any form or medium, including
oral, visual, written, audiovisual, or electronic, id. § 27.001(1).
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The communications referenced in HPEC’s petition1 include (1) Gasc’s email about the
opportunity to build an FSER in Fort Worth; (2) Erdner’s communications with the Arizona
investors about opening an FSER in Fort Worth;2 and (3) Erdner’s emails to the other HPEC
members in July 2014 in which he allegedly misrepresented the scope and purpose of the company
with which he had been having discussions. However, in their appellate brief, appellants rely only
on Erdner’s communications with the Arizona investors to support their contentions that HPEC’s
claims are based on, related to, or in response to appellants’ exercise of their right of association
or of free speech.
Exercise of Right of Association
The TCPA broadly defines the “exercise of the right of association” as “a communication
between individuals who join together to collectively express, promote, pursue, or defend common
interests.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(2); see also Kawcak v. Antero Res. Corp.,
No. 02-18-00301-CV, 2019 WL 761480, at *6 (Tex. App.—Fort Worth Feb. 21, 2019, pet. filed).
Appellants argue they met their burden of establishing the TCPA applies to HPEC’s claims
because Erdner and the Arizona investors communicated to “promote and pursue their common
interest in forming an LLC to open and operate an FSER in the West 7th project.”
This Court has concluded that “to constitute an exercise of the right of association under
the [TCPA], the nature of the ‘communication between individuals who join together’ must
involve public or citizen’s participation.” Dyer v. Medoc Health Servs., LLC, No. 05-18-00472-
CV, 2019 WL 1090733, at *5 (Tex. App.—Dallas Mar. 8, 2019, pet. filed) (quoting ExxonMobil
Pipeline Co. v. Coleman, 464 S.W.3d 841, 847 (Tex. App.—Dallas 2015) (Coleman I), rev’d on
1
Whether a legal action is based on, related to, or in response to the exercise of a protected right is determined
based on the claims made in the non-movant’s petition. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).
2
Neither the form nor the actual substance of Erdner’s communications with the Arizona investors are in the
appellate record. However, the parties do not dispute that the communications occurred and encompassed at least the
formation of a company to build an FSER.
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other grounds, Coleman II, 512 S.W.3d at 900–01 (Tex. 2017)). The communications between
Erdner and the Arizona investors were private communications relating to establishing a business
to open an FSER in Fort Worth. Because those communications did not involve public or citizen’s
participation, it would be “illogical” for those communications to support a right of association
under the TCPA. Id.; Coleman I, 464 S.W.3d at 847; Kawcak, 2019 WL 761480, at *5 (concluding
definition of “common” under right of association in TCPA “embrace[s] a larger set defined by
the public or at least a group”).
We conclude appellants failed to establish the TCPA applies to HPEC’s claims based on
appellants’ exercise of their right of association.
Exercise of Right of Free Speech
As defined by the TCPA, the “exercise of the right of free speech” is a communication
made in connection with a matter of public concern. TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.001(3). A “matter of public concern” includes an issue related to health or safety;
environmental, economic, or community well-being; the government; a public official or public
figure; or a good, product, or service in the marketplace. Id. § 27.001(7). Appellants argue they
met their burden of establishing the TCPA applies to HPEC’s claims because Erdner’s
communications with the Arizona investors were made in connection with health, community
well-being, and a service in the marketplace.
Private communications made in connection with a matter of public concern fall within the
TCPA’s definition of the exercise of the right of free speech under the TCPA. Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Further, the TCPA does not require
that communications specifically “mention” a matter of public concern or have more than a
“tangential relationship” to such a matter. Coleman II, 512 S.W.3d at 900. Rather, the TCPA
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applies so long as the movant’s statements are “in connection with” “issue[s] related to” any of the
matters of public concern listed in the statute. Id.
The TCPA, however, “has its limits” and not every communication falls under the statute.
In re IntelliCentrics, Inc., No. 02-18-00280-CV, 2018 WL 5289379, at *4 (Tex. App.—Fort Worth
Oct. 25, 2018, orig. proceeding) (mem. op.); see also Dyer, 2019 WL 1090733, at *6. A private
communication made in connection with a business dispute is not a matter of public concern under
the TCPA. Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-00732-CV, 2019 WL 2121116,
at *5 (Tex. App.—Dallas May 15, 2019, no pet. h.) (mem. op.); see also Brugger v. Swinford, No.
14-16-00069-CV, 2016 WL 4444036, at *3 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no
pet.) (mem. op.). Further, if a communication itself does not relate to a matter of public concern,
a contention that it will result in a matter of public concern is not sufficient to establish the TCPA
applies. Nguyen v. Hoang, 318 F. Supp. 3d 983, 1001 (S.D. Tex. 2018).
In this case, HPEC alleges Erdner usurped a corporate opportunity in December 2013. All
of Erdner’s communications with the Arizona investors occurred after the alleged wrongdoing and
related to the formation of a business that was considering offering healthcare services in the
marketplace in the future. There is no evidence that Erdner’s communications with the Arizona
investors were about the existence of healthcare services in the market or an issue relating to
current community well-being; rather, at most, the communications were about the formation of a
business and the possible scope of its future activities. Using a “wispy” definition of “tangential,”
the dissent argues those communications are tangentially related to health and community well-
being because the communications “projected” or “proposed” the building of an FSER. The
dissent then attempts to analogize Erdner’s communications about the formation of a business to
a situation where citizens are discussing a proposal to build a nuclear power plant in their
community, presumably by a business already in existence and ready to offer that service.
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Erdner’s communications, however, did not involve a proposal to the community to build
anything anywhere. Rather, those communications involved, at most, the potential formation of a
company that might, in the future, have the resources to acquire the right to build an FSER
somewhere in a general area. The fact that the communications could result in healthcare service
being offered to the public at some location at some point in the future is not enough to bring them
within the scope of the TCPA. See Nguyen, 318 F. Supp. 3d at 1001.3
We recognize that we may not “substitute the words of a statute in order to give effect to
what we believe a statute should say.” Coleman II, 512 S.W.3d at 901. However, in defining
“exercise of the right of free speech” in the TCPA, the Legislature required that a protected
communication be made in connection with a matter of public concern. TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(3). This statutory requirement is satisfied if the communication has a
“tangential relationship” to a matter of public concern. Coleman II, 512 S.W.3d at 900. But, a
communication cannot have a “tangential relationship” to a matter of public concern that does not
yet exist. See Nguyen, 319 F. Supp. 3d at 1001.
Further, if a “matter of public concern” encompasses communications about possibly
forming a business that intends at some point to offer healthcare or other goods, products, or
services in the marketplace, no communication pertaining to a business that offers, or intends to
offer, such goods, products, or services would fall outside the reach of the statute. Construing the
statute to denote that all private business discussions are a “matter of public concern” if the
business offers a good, service, or product in the marketplace or is related to health or safety is a
potentially absurd result that was not contemplated by the Legislature. See, e.g., Brugger, 2016
3
The communications in this case, therefore, are distinguishable from those in Coleman II, which involved oral
discussions about an employee’s alleged failure to gauge a storage tank, implicating existing environmental, health,
safety, and economic risks, see Coleman II, 512 S.W.3d at 901, and Lippincott, which involved email communications
about a healthcare provider’s failure to provide adequate care to patients, implicating existing health concerns, see
Lippincott, 462 S.W.3d 509–10.
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WL 4444036, at *3 (concluding communications made in connection with business dispute was
not matter of public concern under TCPA); I-10 Colony, Inc. v. Lee, No. 01-14-00465-CV, 2015
WL 1869467, at *5 (Tex. App.—Houston [1st Dist.] Apr. 23, 2015, no pet.) (mem. op.)
(concluding that because fraud claim was based on allegation that lawyer fraudulently represented
to plaintiff that lawyer would comply with a previous judgment, rather than on communications
about lawyer’s service in the marketplace, TCPA did not apply).
We conclude appellants failed to establish the TCPA applies to HPEC’s claims based on
appellants’ exercise of their right of free speech.
Conclusion
We resolve appellants’ first issue against them and affirm the trial court’s order denying
appellants’ TCPA motion to dismiss. Based on our resolution of appellants’ first issue, we need
not address their second issue. TEX. R. APP. P. 47.1.
/Ken Molberg/
KEN MOLBERG
JUSTICE
180654F.P05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
JEFFREY ERDNER, D.O. AND THE On Appeal from the 191st Judicial District
EMERGENCY CENTER AT WEST 7TH, Court, Dallas County, Texas,
LLC, Appellants Trial Court Cause No. DC-18-01059.
Opinion delivered by Justice Molberg,
No. 05-18-00654-CV V. Justices Whitehill and Reichek
participating.
HIGHLAND PARK EMERGENCY
CENTER, LLC, Appellee
In accordance with this Court’s opinion of this date, the trial court’s May 21, 2018 order
denying appellants Jeffrey Erdner, D.O. and The Emergency Center at West 7th, LLC’s motion
to dismiss pursuant to the Texas Citizens Participation Act is AFFIRMED.
It is ORDERED that appellee Highland Park Emergency Center, LLC recover its costs
of this appeal from appellants Jeffrey Erdner, D.O. and The Emergency Center at West 7th, LLC.
Judgment entered this 22nd day of May, 2019.
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