Opinion issued July 30, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00990-CV
———————————
PEGGY PIERCE, Appellant
V.
GREGORY STOCKS, MD, Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Case No. 2018-56514
MEMORANDUM OPINION
Appellant, Peggy Pierce, appeals the trial court’s order denying her motion to
dismiss filed pursuant to the Texas Citizens Participation Act (“TCPA” or “the
Act”).1 In one issue, Pierce contends that the trial court erred when it denied her
motion to dismiss appellee, Gregory Stock, MD’s, claims for breach of fiduciary
duty and fraud against her because (1) she showed by a preponderance of the
evidence that the TCPA applies to Stocks’s claims and (2) Stocks failed to establish
by clear and specific evidence a prima facie case for each essential element of his
claims. We affirm.
Background
Dr. Stocks, an orthopedic surgeon, practices with Fondren Orthopedic Group,
L.L.P. (“FOG”) and holds an ownership interest in Fondren Orthopedic Group, Ltd.
(“FOLTD”).2 FOG hired Pierce in 1989. Pierce became FOG’s administrator in
1993 and its Chief Operating Officer in 2017. In these roles, she handled the
business affairs of both FOG and FOLTD. Pierce also provided financial advice and
guidance to Stocks for many years.
In 2018, after Pierce refused to provide requested financial information to
several of FOG’s partners, FOG began an investigation into Pierce’s actions during
her tenure. On February 8, 2018, FOG placed Pierce on a leave of absence. FOG
subsequently terminated Pierce’s employment.
1
See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.
2
FOG’s partners formed FOLTD to operate Texas Orthopedic Hospital. The hospital
and FOG “work in tandem as a one-stop shop: the Partners provide clinical care and
perform surgery, and the Hospital provides pre- and post-operative care.”
2
On February 28, 2018, Pierce filed a charge of discrimination with the Texas
Workforce Commission and the Equal Employment Opportunity Commission. On
April 16, 2018, the parties attempted to resolve Pierce’s claims at a pre-suit
mediation but were unsuccessful.
On May 23, 2018, Pierce filed suit against FOG and FOLTD in federal court,
alleging claims of disability, age, and sex discrimination, retaliation, and breach of
contract. On June 21, 2018, FOG and FOLTD answered and asserted counterclaims
against Pierce for breach of fiduciary duty, fraud, conversion, and declaratory
judgment. Stocks is not a party to the federal lawsuit.
On June 21, 2018, Stocks filed suit against Pierce, asserting claims for breach
of fiduciary duty and fraud. On August 27, 2018, Pierce filed a motion to dismiss
Stocks’s lawsuit arguing that his suit was filed in response to, or was related to,
Pierce’s exercise of the right to petition, i.e., her federal lawsuit against FOG, and
that Stocks failed to establish by clear and specific evidence a prima facie case for
each essential element of his claims, thereby entitling Pierce to dismissal of the
claims under the TCPA. To her motion, Pierce attached numerous exhibits,
including her declaration and her husband’s declaration. In his response, Stocks
argued that Pierce’s motion to dismiss should be denied because Pierce failed to
show by a preponderance of the evidence that the TCPA applies to his lawsuit, and
he provided clear and specific evidence of a prima facie case for each essential
3
element of his claims. Stocks also objected to Pierce’s and her husband’s
declarations on the grounds that they violated the mediation privilege, contained
inadmissible hearsay, were speculative, conclusory, and could not be controverted,
and were irrelevant as to whether the TCPA applied to Stocks’s lawsuit.
On October 19, 2018, the trial denied Pierce’s motion to dismiss. In its order,
the trial court also sustained Stocks’s objections to the declarations of Pierce and her
husband and struck them from the record. This interlocutory appeal followed.3
Texas Citizens Participation Act
In one issue, Pierce contends that the trial court erred in denying her motion
to dismiss Stocks’s claims because (1) the claims relate to, or are in response to, her
exercise of the right to petition, and (2) Stocks did not establish by clear and specific
evidence a prima facie case for each essential element of his claims.
A. Applicable Law and Standard of Review
Chapter 27, also known as the Texas Citizens Participation Act, is an
anti-SLAPP statute. See In re Lipsky, 411 S.W.3d 530, 536 n.1 (Tex. App.—Fort
Worth 2013, orig. proceeding). “SLAPP” is an acronym for “Strategic Lawsuits
Against Public Participation.” Id. The purpose of the statute “is to encourage and
3
Pierce has filed a related interlocutory appeal from the trial court’s order denying
her motion to dismiss in Pierce v. Brock, M.D., No. 01-18-00954-CV, which is
currently pending in this Court. The underlying cause is Peggy Pierce v. Gary T.
Brock, M.D. and Gary T. Brock, M.D., P.A., trial court cause number 2018-42395,
in the 157th District Court of Harris County, Texas.
4
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 demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002; KTRK
Television, Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.]
2013, pet. denied). The TCPA created “an avenue at the early stage of litigation for
dismissing unmeritorious suits that are based on the defendant’s exercise” of certain
constitutional rights. Lipsky, 411 S.W.3d at 539. The Legislature has directed courts
to construe the statute liberally “to effectuate its purpose and intent fully.” TEX. CIV.
PRAC. & REM. CODE § 27.011(b); Robinson, 409 S.W.3d at 688.
Section 27.003 of the TCPA 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.” TEX. CIV. PRAC. REM. CODE
§ 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). The TCPA defines “exercise of the right
to petition” as, among other things, “a communication in or pertaining to . . . a
judicial proceeding.” Id. § 27.001(4)(A)(i). “Communication” is further defined as
“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).
5
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 to petition.” Id. § 27.005(b)(2). We
review de novo the trial court’s determination whether the movant carried this
burden. Robinson, 409 S.W.3d at 688. If the trial court determines that the movant
has met her burden, the burden then shifts to the nonmovant to establish “by clear
and specific evidence a prima facie case for each essential element of the claim in
question.” TEX. CIV. PRAC. REM. CODE § 27.005(c). If the nonmovant satisfies that
requirement, the burden shifts back to the movant to prove each essential element of
any valid defenses by a preponderance of the evidence. See id. § 27.005(d).
The Legislature’s use of “prima facie case” in the second step of the inquiry
implies a minimal factual burden: “[a] prima facie case represents the minimum
quantity of evidence necessary to support a rational inference that the allegation of
fact is true.” Robinson, 409 S.W.3d at 688; Rodriguez v. Printone Color Corp., 982
S.W.2d 69, 72 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). The TCPA
requires that the plaintiff’s proof address and support each “essential element” of
every claim and that the proof constitute “clear and specific evidence.” Robinson,
409 S.W.3d at 688. Because the statute does not define “clear and specific,” we
apply the ordinary meaning of these terms. Id. at 689. “Clear” means
6
“unambiguous,” “sure,” or “free from doubt,” and “specific” means “explicit” or
“relating to a particular named thing.” 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 § 27.006(a). We review
the pleadings and evidence in the light most favorable to the plaintiff. Newspaper
Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80–81 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied); see also Sloat v. Rathbun, 513 S.W.3d
500, 504 (Tex. App.—Austin 2015, pet. dism’d) (“Importantly here, we also view
the [evidence] in the light most favorable to . . . the nonmovant[.]”). 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. Serafine
v. Blunt, 466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.). 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. If we determine that Pierce carried her initial burden to
prove that Stocks’s claims are covered by the Act, we must examine the pleadings
and the evidence presented in response to Pierce’s motion to dismiss to determine
whether Stocks marshaled “clear and specific” evidence to support each essential
element of his claims. See Robinson, 409 S.W.3d at 689.
7
B. Applicability of TCPA to Stocks’s Claims
The TCPA applies to Stocks’s lawsuit if it is (1) a legal action (2) related to
or in response to (3) Pierce’s exercise of the right to petition. The TCPA defines a
legal action as “a lawsuit,” and Pierce’s federal lawsuit is “a communication made
in or pertaining to . . . a judicial proceeding.” TEX. CIV. PRAC. REM. CODE
§§ 27.001(1), (4)(A)(i), (6) (defining “communication as “the making or submitting
of a statement or document”). Therefore, we must determine whether Pierce has
established by a preponderance of the evidence that Stocks’s lawsuit relates to, or is
in response to, her federal lawsuit.
Pierce contends that Stocks’s lawsuit was filed in response to her federal
lawsuit because the evidence shows that Stocks “is the sole owner of one of the
general partners of FOG, and that he is a limited partner of FOLTD, and that both of
these partnerships threatened to cause its individual partners to sue Pierce if she sued
them first.” In their declarations, Pierce and her husband describe alleged retaliatory
statements made during the mediation of her federal lawsuit. Pierce argues that
“[t]he district court did not consider this evidence of the subjective motivation
behind Stocks’s lawsuit, presumably based on the claim that it was prohibited from
doing so because the retaliatory statements were made in a mediation.” Pierce
asserts, however, that the statements qualify as an exception to the mediation
8
privilege and, therefore, are admissible to show that Stocks filed his lawsuit in
response to her federal lawsuit.
Section 154.073 of the Texas Civil Practice and Remedies Code provides, in
relevant part:
Except as provided by Subsections (c), (d), (e), and (f), a
communication relating to the subject matter of any civil or criminal
dispute made by a participant in an alternative dispute resolution
procedure, whether before or after the institution of formal judicial
proceedings, is confidential, is not subject to disclosure, and may not
be used as evidence against the participant in any judicial or
administrative proceeding.
TEX. CIV. PRAC. & REM CODE § 154.073(a). Subsection (c) states that “an oral
communication or written material used in or made a part of an alternative dispute
resolution procedure is admissible or discoverable if it is admissible or discoverable
independent of the procedure.” Id. § 154.073(c). Pierce argues that the subjective
motivation behind the filing of Stocks’s lawsuit is relevant to whether he filed his
suit “in response to” Pierce’s federal lawsuit and, therefore, is discoverable
independent of the mediation procedure. However, Stocks was not at the mediation.
The statements whose relevancy is allegedly established because they reveal his
subjective motivation were not made by him.
Further, “a ‘cloak of confidentiality’ surrounds mediation, and the cloak
should be breached only sparingly.” Allison v. Fire Ins. Exch., 98 S.W.3d 227, 260
(Tex. App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.); see also
9
Hydroscience Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 795–96 (Tex.
App.—Dallas 2013, pet. denied) (holding mediation privilege barred consideration
of evidence of oral communications made during mediation). “Unless the parties
agree otherwise, all matters, including the conduct and demeanor of the parties and
their counsel during the settlement process, are confidential and may never be
disclosed to anyone, including the appointing court.” TEX. CIV. PRAC. & REM. CODE
§ 154.053(c); see In re Empire Pipeline Corp., 323 S.W.3d 308, 312 (Tex. App.—
Dallas 2010, orig. proceeding) (citing Allison, 98 S.W.3d at 259). Piercing the cloak
of confidentiality around mediation is a heavy burden. In this case, not only are the
alleged statements arguably hearsay, see TEX. R. EVID. 801, they were not made by
Stocks and were made during mediation of Pierce’s federal lawsuit to which Stocks
is not a party. Further, other than making conclusory assertions, Pierce does not
explain why the statements are relevant or otherwise admissible or discoverable
independent of the mediation procedure. The trial court correctly determined that
they were not proper evidence.
Pierce argues that, even if the mediation statements are not considered, the
pleadings alone compel the conclusion that Stocks’s lawsuit is related to her federal
lawsuit because “both lawsuits involve claims arising out of Pierce’s employment
with FOG.” A review of Stocks’s petition and Pierce’s federal lawsuit does not
support this assertion. Stocks’s claims of fraud and breach of fiduciary duty arise
10
from the financial harm that Pierce’s alleged conduct caused Stocks, while Pierce’s
federal suit alleges claims of employment discrimination based on age, sex, and
disability, and retaliation. That Pierce was employed by FOG and later sued FOG
in federal court does not establish that Stocks’s claims are related to Pierce’s federal
lawsuit for purposes of the TCPA.
Pierce also contends that Stocks’s lawsuit was in response to her federal
lawsuit because it was asserted subsequently in time. “There are myriad reasons for
deciding if and when to bring a legal action against a person.” Beving v. Beadles,
563 S.W.3d 399, 408 (Tex. App.—Fort Worth 2018, pet. denied). Merely arguing
post hoc ergo propter hoc will not satisfy the preponderance-of-the-evidence
standard to demonstrate applicability of the TCPA, particularly where, as here, the
claims are premised on conduct that occurred well before Pierce filed her federal
lawsuit. See id. (concluding mere fact that law partners waited until after
comptroller’s affidavit and deposition before naming her as third-party defendant
did not satisfy standard under TCPA to show that third-party claims were in response
to comptroller’s exercise of right to petition); but cf. Cavin v. Abbott, 545 S.W.3d
47, 69 (Tex. App.—Austin 2017, no pet.) (noting plaintiffs’ claims “would also be
in response to [defendants’] exercise of the right of free speech or exercise of the
right to petition in the sense that they reacted to or were asserted subsequently to
appellants’ . . . lawsuits and subpoenas”) (internal quotations omitted).
11
Viewing the pleadings in the light most favorable to Stocks, we conclude that
Pierce failed to demonstrate by a preponderance of the evidence that Stocks’s lawsuit
relates to, or was in response to, her exercise of the right to petition.4 The trial court
did not err in denying Pierce’s motion to dismiss under the TCPA. See TEX. CIV.
PRAC. & REM. CODE § 27.005(b), (c). Accordingly, we overrule Pierce’s issue.
Conclusion
We affirm the trial court’s order denying Pierce’s motion to dismiss.
Russell Lloyd
Justice
Panel consists of Justices Lloyd, Landau, and Countiss.
4
Having determined that Pierce failed to meet her initial burden to show that the
TCPA applies to Stocks’s claims, we need not address whether Stocks established
a prima facie case for each of the elements of his claims against Pierce.
12