Elliott v. S&S Emergency Training Solutions, Inc.
559 S.W.3d 568
Tex. App.2017Background
- EMTS (S & S Emergency Training Solutions, d/b/a Emergency Medical Training Services) and Arlington Career Institute formed a Consortium to sponsor an accredited paramedic program; Elliott served as Program Director/Committee member and signed two nondisclosure agreements (NDAs).
- EMTS sued Elliott for breach of the NDAs, alleging she disclosed confidential Consortium/EMTS information in complaints to state and accrediting bodies and in Facebook posts; EMTS obtained temporary injunctive relief pre-suit.
- Elliott moved to dismiss under the Texas Citizens Participation Act (TCPA) and also filed a Rule 91a motion; the trial court denied both, and Elliott appealed the TCPA denial.
- The appellate court applied the TCPA two-step test: (1) whether Elliott showed her conduct invoked a TCPA right, and (2) whether EMTS established by clear and specific evidence a prima facie case for each element of breach of contract.
- The court held Elliott met step one because her communications addressed health/safety issues (matters of public concern) and thus were TCPA-protected speech; the court then evaluated EMTS's evidence under step two.
- The court concluded EMTS produced clear evidence of a valid contract, performance, and breach, but failed to present clear and specific evidence of causation and damages (too conclusory), so dismissal under the TCPA was required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Elliott's communications are exercises of TCPA rights | EMTS: disclosures breached NDAs and thus are not shielded | Elliott: complaints and posts concerned health/safety and are TCPA-protected free speech/petition | Held: protected — communications were about a matter of public concern (health/safety); met step one of TCPA |
| Whether a prior NDA waived Elliott's TCPA rights at step one | EMTS: contractual waiver of petition/speech should defeat TCPA protection | Elliott: TCPA step one requires only that movant show exercise of a statutory right; contract limitations are for step two | Held: NDA limits are considered at step two, not at step one (court follows Lipsky/TCPA text) |
| Whether EMTS proved a prima facie breach of contract under TCPA step two | EMTS: NDAs, affidavits, and documents show contract, performance, breach, and damages (regulatory costs, lost students/revenue) | Elliott: EMTS's damage evidence is conclusory and speculative, insufficient under TCPA | Held: EMTS proved contract, performance, and breach, but failed to present clear and specific evidence of causation/damages; TCPA dismissal required |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (establishes TCPA two-step framework and standards for clear-and-specific evidence)
- Campbell v. Clark, 471 S.W.3d 615 (Tex. App.—Dallas 2015) (de novo review of TCPA section 27.005 burdens)
- Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299 (Tex. App.—Dallas 2013) (statutory construction and TCPA principles)
- Petras v. Criswell, 248 S.W.3d 471 (Tex. App.—Dallas 2008) (elements of breach of contract)
- Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401 (Tex. 1997) (mutuality of obligation and consideration in contract formation)
- Wright Grp. Architects-Planners, P.L.L.C. v. Pierce, 343 S.W.3d 196 (Tex. App.—Dallas 2011) (contract interpretation—entity identity inferred from document headers/signature blocks)
- Avila v. Larrea, 506 S.W.3d 490 (Tex. App.—Dallas 2016) (prevailing TCPA movant entitled to award under section 27.009)
- Kartsotis v. Bloch, 503 S.W.3d 506 (Tex. App.—Dallas 2016) (balancing confidentiality concerns when addressing sealed records)