CLINICAL PATHOLOGY LABORATORIES, INC. v. JUAN POLO
No. 08-19-00067-CV
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS
August 6, 2020
Aрpeal from the 210th Judicial District Court of El Paso County, Texas (TC#2018DCV2966)
O P I N
Unfortunate as it may be, employees are sometimes fired. And it is hard to imagine that any worker would be discharged from employment without some internal discussion by the employer, whether from manager-to-manager,
The Texas Supreme Court has already decided that some purely internal company discussions can invoke the TCPA.3 But the same court has also cautioned that discussions attendant to a “private contract dispute affecting only the fortunes of the private parties” do not involve a “matter of public concern”--a necessary predicate under the TCPA.4 Because we conclude that the employer in this wrongful discharge case failed to show, by a preponderance of the evidence, that the discussions leading up to the termination of the plaintiff related to a matter of public concern, or that the plaintiff is suing over those discussions as distinct from the termination dеcision itself, we affirm the trial court’s order declining to apply the TCPA.
I. FACTUAL BACKGROUND
Appellant Clinical Pathologies Laboratories (“CPL”) terminated Appellee Juan Polo (“Polo”) from his employment as a phlebotomist after Polo suffered a work-related injury and filed a worker’s compensation claim. CPL is “a reference laboratory” that performs laboratory testing for its clients, which includes physicians, clinics, and hospitals. Polo was employed by CPL as a phlebotomist and driver from March 13, 2012 until his termination on November 14, 2016. Among other things, phlebotomists are tasked with obtaining blood samples from patients.
On August 22, 2016, Polo was involved in a work-related motor vehicle accident while driving a company vehicle. As Polo was unable to immediately return to work, he filed for and received worker’s compensation benefits. The parties dispute, however, what happened next. According tо Polo, his physician released him to perform light duty work on August 30, 2016, with some restrictions on the movement of his ankle. He claims that despite this limitation, he was physically able to perform the essential functions of his job as a phlebotomist, but CPL nevertheless refused to allow him to return to work on light duty. CPL, however, contends that it never received notification that Polo could return to work on light duty, and that instead, it
CPL sent a letter to Polo dated November 8, 2016, informing him that it was terminating his employment. In the letter, CPL stated that it had accommodated Polo’s need for time off since his work-related accident, but that this had “placed a hardship on the department,” and that, despite its concern for Polo’s health, CPL could no longer continue to carry him as an emрloyee. The letter further stated that when Polo was fully recovered and released by his physician to return to work, he could reapply for employment with CPL.
II. PROCEDURAL BACKGROUND
A. Polo’s Lawsuit
Polo filed his Original Petition against CPL alleging that it had terminated him in violation of Chapter 451 of the Texas Labor Code. See
In its answer to the petition, CPL denied that it terminated Polo as the result of the filing of his worker’s compensation claim, asserting instead that its decision to terminate Polo was “induced by business necessity or bona fidе occupational qualifications.” CPL further elaborated that its termination decision was based on Polo’s inability to perform the “essential functions of the job,” and that the termination was made “according to a uniform application of a company policy.”
B. The TCPA Motion to Dismiss
CPL thereafter filed its motion to dismiss Polo’s lawsuit pursuant to the TCPA. In its motion, CPL alleged that Polo’s “claims in his suit are based on, related to, or in response to CPL’s exercise of its right of free speech on a matter of public concern, or its right to associate, and are subject to dismissal under the TCPA.” In particular, CPL argued that the “unequivocal language” in Polo’s Original Petition demonstrated that he was complaining about the communications that took place among CPL management or employees, which pertained to, “among other things, Plaintiff’s extended time off, which placed CPL’s phlebotomy depаrtment in a hardship,” and caused CPL to be “unable to provide the best service to its clients in the medical community.” Although the record does not contain any of the actual alleged communications, CPL contends that these communications were “made in connection with a matter of public concern,” as defined by the TCPA, i.e., health and safety issues, given CPL’s role in the medical community and Polo’s employment as a phlebotomist.
1. Klein’s affidavit
In support of its motion, CPL attached an affidavit from Debbie Klein, CPL’s Vice President of Human Resources. In her affidavit, Klein described the several regulations and guidelines that a clinical lab must follow in conducting its operations, and their connection to the health and safety of its customers. She further explained that phlebotomists, such as Polo, are required to understand and follow various regulations and guidelines, and that they are responsible for adhering to “departmental policies and procedures to include
Klein explained that in general, when CPL does not have a fully staffed phlebotomy department, it “risks a loss of services” to the community, and it causes “a delay in diagnosing, preventing, or treating disease which would be harmful to [the] community.” Klein explained that Polo’s inability to return to work as a phlebotomist caused “CPL’s ability to provide health services to suffer,” and it eventually became “economically necessary” to hire a replacement. According to Klein, after CPL received a Texas Workers’ Compensation Work Status Report, dated October 31, 2016, stating that Polo would be unable to return to work until November 30, 2016, CPL called Polo about the situation to determine if his physician would release him to work sooner. But after receiving no response, CPL sent Polo the November 8, 2016 termination letter.
Klein also concluded from a review of Polo’s Original Petition, that his lawsuit was based on communications that CPL employees had with each other and with Polo regarding the decision to terminate him. She also concluded that the claim was related to internal communications CPL’s staff had with each other discussing the “proper management and staffing of a clinical laboratory” and the “provision of services, which CPL offers in the marketplace.” She did not, however, provide the substance of any of those communications, or other details regarding them.
In addition, Klein expressed her belief that Polo’s lawsuit related to various communications that CPL and its employees had with “state and federal governments, and among each other, with regard to compliance with [CPL’s] reporting obligations,” and CPL’s need tо comply with the various “standards and regulations” imposed upon it to ensure the health and safety of the community. Once again, however, Klein did not provide the substance of any such communications or explain how they related to Polo’s absence from work.
2. Polo’s opposition to the motion and supporting affidavit
Polo opposed CPL’s motion to dismiss, contending that his lawsuit was not based on, related to, or made in response to any of the above-described communications, and was instead based solely on CPL’s purely private acts of allegedly retaliating against him for filing his worker’s compensation claim. He further alleged that CPL’s termination decision was not related to any health or safety concerns, and that it was instead related solely to CPL’s private “economic concerns.” Polo attached his own affidavit in which he averred that he had been released to light duty work in August of 2016, but that CPL had refused to let him return to wоrk, and that its decision to terminate him less than three months later was a “pre-text and a cover up” of CPL’s true intent, which was to retaliate against him for filing his worker’s compensation claim. In addition, Polo alleged that at an unspecified time, CPL’s management had expressed to him that it “did not want people to file worker’s compensation claims as that is a loss of money.”
Following a hearing on the motion, the trial court denied the motion, and this interlocutory appeal follows. In the three issues before us CPL contends that the trial court erred by denying its TCPA motion to dismiss. More specifically, its first issue contends that it met the initial burden of demonstrating that Polo’s lawsuit constituted a legal action that was based on, related to, or in response to CPL’s exercise of its right of free speech on a matter of public concern, or its right to associate. In its second issue, CPL contends
III. APPLICABLE LAW AND STANDARD OF REVIEW
The Legislature passed the TCPA 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 demonstrable injury.” Pacheco v. Rodriguez, 600 S.W.3d 401, 404 (Tex.App.--El Paso 2020, no pet.) citing
In determining whether a legal action should be dismissed under the TCPA, the statute requires courts to employ a multi-step dеcisional process. Under the first step, the trial court must determine if the TCPA applies. In that step, the moving party must show 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: “(A) the right of free speech; (B) the right to petition; or (C) the right of association[.]”
If the movant meets the initial burden of demonstrating that the TCPA applies, and the trial court determines that no exception applies, the burden then shifts to the non-movant to establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” Pacheco, 600 S.W.3d at 405, citing
We review de novo a trial court’s ruling on a TCPA motion to dismiss. Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019) (Supreme Court conducts a de novo review of a court of appeals’ determination regarding whether the parties met their respective burdens of proof under the TCPA); MVS Int’l Corp., 545 S.W.3d at 189-90 (conducting a de novo review of trial court’s ruling on a TCPA motion). In conducting our review, as mandated by the TCPA, we consider all “pleadings and supporting and opposing affidavits” stating the facts on which the liability or defense is based. Creative Oil & Gas, LLC, 591 S.W.3d at 132, citing
To the extent that we need to interpret the statutory language, our objective is to “give effect to the Legislature’s intent, which requires us to first look to the statute’s plain language.” Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). If the statute’s language is unambiguous, “we interpret the statute according to its plain meaning.” Id. And “[w]e presume the Legislature included each word in the statute for a purpose and that words not included were purposefully omitted.” Id.
IV. THE RIGHT OF FREE SPEECH UNDER THE TCPA
We first consider whether Polo’s claim of retaliatory discharge was based on, related to, or made in response to CPL’s right of free speech within the meaning of the TCPA. The exercise of the right of free speech is defined by the TCPA as a “communication made in connection with a matter of public concern.”
A broad range of communications, in various mediums, are covered by the TCPA.
Therefore, our initial task is to determine whether Polo’s lawsuit was based on, related to, or made in response to any “communications” that would invoke the TCPA, or alternatively, whether, his lawsuit was factually predicated on CPL’s decision to terminate him, rendering it outside the TCPA’s scope.
A. Communications or Conduct?
Polo contends that his lawsuit was based solely on CPL’s decision to terminate him in retaliation for filing his worker’s compensation claim. And he argues that the decision was not factually predicated on any specific communications made by CPL. Rather, he urges that at
not apply to plaintiff’s claims to the extent that they were predicated factually on conduct by defendant rather than on “communications” as defined by the TCPA).78
CPL, on the other hand, contends that Polo’s lawsuit was at the very least related to (1) the communications that took place among CPL’s managers regarding Polo’s absence from work, (2) their communications made in deciding to terminate Polo, and (3) the communications it had with Polo on the subject. In particular, CPL points out that in both his pleadings and his affidavit, Polo contends that the reasons CPL gave for his termination in its November letter were pretextual or false. In addition, CPL points out that Polo alleged
In truth, almost every lawsuit at its core is based on some decision, followed by conduct, that is bracketed by communications in one form or another by or between the parties. For instance, a breach of a contract presupposes a decision followed by conduct, which is normally preceded by related emails, demand letters, or person-to-person discussions. A workplace accident may result from an ill-advised decision or action, often preceded by some directive communicatеd by the employer. And it would be rare for an employee to be discharged without some communication between employer and employee leading up to the termination decision. How then to apply the TCPA to protect free speech without swallowing the whole of tort and contract litigation? We find the answer to that question in two related ideas. First the TCPA itself requires that the movant show 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 one the enumerated rights.
From the record as a whole, it seems clear that the decision to terminate Polo, followed by the act of terminating him are at the core of this lawsuit, as distinct from the several discussions and letters surrounding that decision. CPL could have had all the discussions that it did without exposing itself to Chapter 451 liability if it did not take the last step of actually terminating Polo. And as Polo also argues, the communications at most are “evidence” that the parties will likely present at trial to be used by the trier of fact in determining whether CPL had a retaliatory motive for terminating him, but the lawsuit is not itself factually predicated on them. See 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., not designated for publication) (recognizing “a distinction between communications used as evidence to support a claim . . . and a claim that is ‘based upon, relate[d] to, or [ ] in response to’ that communication under the TCPA.”).9
The easier cases are those where the communication itself causes the harm and triggers liability. In Coleman, for instance, company managers accused a worker of
A more difficult case to reconcile, and the one CPL relies on, is Khalil v. Memorial Hermann Health System, No. H-17-1954, 2017 WL 5068157, at *5 (S.D. Tex. 2017) (unpublished memorandum and order), in which the court determined that the TCPA was implicated in a plaintiff’s age discrimination lawsuit. Id. However, in Kahlil, the plaintiff’s claim of age discrimination was not based solely оn her employer’s decision to terminate the plaintiff from her employment but was instead factually predicated on allegedly discriminatory communications the plaintiff claimed led to her termination. In that case, the plaintiff-physician had been employed at the defendant hospital. She initially brought several claims in state court against the hospital, including, defamation, fraud, tortious interference with a contract, and age discrimination. Those claims arose from the hospital employees’ criticism of her performance in various communications. She alleged those communications prevented her from retaining credentials at the hospital, which in turn, led to her termination of her employment at the hospital. Id. at *3, citing Mem’l Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017 WL 3389645, at *18 (Tex.App.--Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op. on rehr’g, not designated for publication). The defendant hospital moved to dismiss all of her state-law claims under the TCPA, with the exception of her age discrimination claim, arguing that those claims were made in response to the exercise of its right to free speech in engaging in the above-described communications. Id. The trial court agreed and granted the defendant’s motion to dismiss, after which the plaintiff’s sole remaining claim of age discrimination was removed to federal court. Id.
In the removed action, the defendant hospital moved to dismiss the age discrimination claim, again contending that it was made in response to its exercise of its right to free speech. Id. at *5. In granting the motion, the court reasoned that the plaintiff’s age discrimination claim was based on the exact same communications criticizing her performance that formed the basis of her state court claims. She alleged that the hospital’s personnel hаd a discriminatory motive for criticizing her performance, and that those criticisms ultimately led to her termination. Id. at *5. Relying on the same analysis as the state court did with respect to the plaintiff’s other claims, the federal court concluded that the plaintiff’s age discrimination claim was made in response to those communications, and that her claim therefore implicated the defendant’s right to free speech within the meaning of the TCPA. Id.
As we recently recognized in Sec. Serv. Fed. Credit Union v. Rodriguez, No. 08-19-00154-CV, 2020 WL 1969399, at *4-5 (Tex.App.--El Paso Apr. 24, 2020, no pet.), the facts in Khalil were “unique,” and provided an unusual example of how an age discrimination claim could be considered “speech-based.” However, unlike the situation in Khalil, Polo’s claim for retaliatory discharge is not based on any unique set of facts that would render it a “speech-based” claim. As set forth above, Polo did not allege in his pleading that he was harmed by any defamatory or discriminatory statements
B. A Public Concern or a Private Interest?
Moreover, even if we were to agree with CPL that Polo’s lawsuit was, at least indirectly related to the above-described communications, CPL would still have the burden of convincing us that the communications were made “in connection with a matter of public concern.” See Creative Oil & Gas, LLC, 591 S.W.3d at 134, citing
The Texas Supreme Court has held that in determining whether a communication was made in connection with a matter of public concern, even private communications relating to private disputes may on occasion fit within that category. See Coleman, 512 S.W.3d at 898, 901. However, the Supreme Court more recently cautioned that if a private dispute “affect[s] only the fortunes of the private parties involved,” it is simply not a “‘matter of public concern’ under any tenable understanding of those words.” Id. at 137. This Court, as well as many of our sister courts, have recognized this same distinction between matters of public concern (which invoke the TCPA) and matters involving only the parties’ private pecuniary interests (which do not). See, e.g., Ridge Petroleum, Inc. v. Energy Ops, LLC, No. 08-19-00078-CV, 2020 WL 1969398, at *9 (Tex.App.--El Paso Apr. 24, 2020, no pet.) (statements referenced in plaintiff’s petition related only to the amount of royalties owed to a private party pursuant to a waste water disposal agreement, and therefore did not relate to a matter of public concern within the meaning of the TCPA.); Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 476-77 (Tex.App.--Houston [1st Dist.] 2020, pet. filed) (internal communications among parties regarding plaintiff’s trade secrets had no public relevance beyond the pecuniary intеrests of the private parties, and were therefore not connected to a matter of public concern within the meaning of the TCPA); Tex. Custom Wine Works, LLC v. Talcott, 598 S.W.3d 380, 387 (Tex.App.--Amarillo 2020, no pet.) (“[T]o trigger the TCPA’s protections, [the communication] must involve more than a handful of individuals communicating about a private business deal.”); Forget About It, Inc. v. Bio TE Med., LLC, 585 S.W.3d 59, 67-68 (Tex.App.--Dallas 2019, pet. denied) (“a private communication made in connection with a business dispute is not a matter of public concern under the TCPA.”); Caliber Oil & Gas, LLC v. Midland Visions 2000, 591 S.W.3d 226, 239-40 (Tex. App.--Eastland 2019, no pet.) (communications that related only to the “parties’ personal financial well-being,” were not made in connection with a matter of public concern within the meaning of the TCPA); Mathiew v. Subsea 7 (US) LLC, No. 4:17-CV-3140, 2018 WL 1515264, at *4-5 (S.D. Tex. 2018) (communications regarding defendant’s decision to terminate plaintiff, which pertained purely to defendant’s economic interests, were not made in connection with a matter of public concern within the meaning of the TCPA).
In this appeal, CPL contends that its communications about Polo’s absence and its decision to terminate Polo, were made in connection with health or safety issues, thereby making them a matter of public concern within the meaning of the TCPA. In support of its argument, CPL finds it significant that it conducts business in the health care field, providing laboratory services to the public, and that Polo’s position as a phlebotomist was important to CPL’s ability to effectively provide those services. But as the Dallas court recently explained, the mere fact that a defendant operates in the health care field is not sufficient to demonstrate that each and every communication it makes about one of its employees--even those employees who are health care workers--is related to a matter of public concern. See U.S. Anesthesia Partners of Tex., P.A. v. Mahana, 585 S.W.3d 625, 630-31 (Tex.App.--Dallas 2019, pet. denied) (recognizing that a private communication about an employee’s alleged positive drug test or addiction was not a matter of public concern “merely because the employee happens to be a nurse”). To construe the TCPA otherwise to “denote that all private business discussions are a ‘matter of public concern’ if the business . . . is related to health or safety is a potentially absurd result that was not contemplated by the Legislature.” Erdner v. Highland Park Emergency Ctr., LLC, 580 S.W.3d 269, 277 (Tex.App.--Dallas 2019, pet. denied). Instead, the focus must be on the communications themselves, and whether they were made in connection with a health or safety issue. Mahana, 585 S.W.3d at 630-31. In other words, the “communications do not become a matter of public concern simply bаsed on the nature of the parties’ business,” and instead, the communications themselves must have “some relevance to issues beyond the interests of the parties” to be considered matters of public concern under the TCPA. See Blue Gold Energy Barstow, LLC v. Precision Frac, LLC, No. 11-19-00238-CV, 2020 WL 1809193, at *7 (Tex.App.--Eastland Apr. 9, 2020, no pet.) (mem. op., not designated for publication); Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-00732-CV, 2019 WL 2121116, at *4 (Tex.App.--Dallas May 15, 2019, no pet.) (mem. op., not designated for publication) (to determine whether the TCPA applies, a court “must look to the content of the communications themselves and not focus solely on the occupation of the speaker or the related industry”); see also Goldberg v. EMR (USA Holdings) Inc., 594 S.W.3d 818, 828 (Tex.App.--Dallas 2020, pet. denied) (court must focus on the communication itself to determine whether it was made in connection with a matter of public concern or whether it was “simply а communication
No doubt, when a health-care operator engages in communications relevant to an employee’s ability to safely and competently provide medical services to patients, courts have held that these communications relate to health and safety issues impacting the public, and can be considered a matter of public concern within the meaning of the TCPA. See, e.g., Lippincott, 462 S.W.3d at 509-10 (defendant’s communications relating to plaintiff’s ability to provide services to patients as a nurse anesthetist without endangering their health involved a matter of public concern); see also Pisharodi v. Columbia Valley Healthcare Sys., L.P., No. 13-18-00364-CV, 2020 WL 2213951, at *3 (Tex.App.--Corpus Christi May 7, 2020, no pet. h.) (when a defendant’s communications center on the plaintiff’s “ability to provide competеnt medical services,” the communications can be said to impact a matter of public concern); Batra v. Covenant Health Sys., 562 S.W.3d 696, 709 (Tex.App.--Amarillo 2018, pet. denied) (private communications relating to a physician’s “handling of specific cases, his medical competence, and disciplinary action” were “matters of public concern”); Khalil, 2017 WL 5068157, at *5-6 (communications criticizing the plaintiff-physician’s competence related to health and safety issues and was therefore made in connection with a matter of public concern).
But here, we simply disagree that CPL has shown its communications regarding Polo’s absence from his employment as a phlebotomist similarly focused on a public health concern as distinct from the parties’ private employment dispute. First, other than the termination notice, none of the alleged communications appear in our record. Without being able to review the communications, we are unable to determine whether any of CPL’s communications did in fact relate to public health or safety issues, or whether they were instead merely related to CPL’s concern about how Polo’s absence was affecting its business operations and its own pecuniary interests. See Staff Care, Inc., 2019 WL 2121116, at n.3 (recognizing that without knowing its content, “a court cannot determine whether the alleged communication falls under the statutory definitions of the TCPA”); see also Gaskamp, 596 S.W.3d at 477-78 (record did not contain sufficient information from which it could be determined that plaintiff’s lawsuit involved protected communications).
Nor is there any objective indication that a public health or safety concern actually factored into CPL’s consideration to any significant degree. Nothing informs us, for instance, whether Polo was one of only a few phlebotomists such that his individual absence would meaningfully impact the community, or whether he was only one of a much larger group, where the health and safety impact of his loss would be no more than with any employee’s departure. The record is replete, however, with references to CPL’s concern with the financial impact Polo’s absence was causing. For example, in the termination notice itself--which is the only communication that we have in the record--CPL stated that Polo’s absence was causing a “hardship” on the phlebotomy department, but made no mention of how the public may have been impacted by his absence. In addition, in its answer to Polo’s petition, CPL stated that its decision to terminate Polo was “induced by business necessity,” again making no mention of any concerns it had about the public’s health or safety. And finally, in her affidavit, Klein averred that Polo’s absence from his job had impacted the “work demands” at CPL’s El Paso location, and
Accordingly, we conclude that CPL failed to meet its burden of demonstrating that it engaged in any communications that could be considered a matter of public concern regarding Polo’s termination within the meaning of the TCPA. And, in turn, we therefore conclude that CPL has failed to establish that Polo’s wrongful termination lawsuit was based on, related to, or made in response to CPL’s exercise of its right of free speech.
V. THE RIGHT TO ASSOCIATE UNDER THE TCPA
We next consider CPL’s argument that Polo’s lawsuit was based on, related to, or made in response to CPL’s exercise of its right to associate within the meaning of the TCPA. The TCPA, as it existed when Polo filed his lawsuit, defined the “[e]xercise of the right of association” as “a communication between individuals who join together to collectively express, promote, pursue, or defend common interests.” Act of May 18, 2011, 82nd Leg. R.S., ch. 341, 2011 TEX.GEN.LAWS 961, 963 (amended 2019) (current version at
As Polo points out, however, CPL once again provides little information about thе identity of these managers or the content of these communications. Moreover, we have difficulty concluding that CPL’s managers, who were already associated with each other as employees of an ongoing business, could be said to have “join[ed] together” for the purpose of communicating about Polo’s employment, within the meaning of the TCPA’s right to associate provision. See generally Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 287 (Tex.App.--Dallas 2015, pet. denied) (concluding that the TCPA’s right to associate provision was not implicated where the company’s managers exchanged private, internal communications regarding the plaintiff’s employment). More importantly, we disagree with CPL’s argument that it was not required to establish that its managers joined together for a “public purpose” in order to invoke the TCPA’s right to associate, and that the right to associate could be impliсated where the managers joined together for a “private purpose,” as long as they were otherwise “pursuing a common interest.”
The former version of the TCPA did not expressly impose a requirement that the “common interest” element of the right to associate had to relate to a public concern or purpose.
Accordingly, we overrule Issue One. Because we resolve the case based on the first issue, finding that the TCPA does not apply to Polo’s retaliatory discharge claim, we need not discuss CPL’s remaining two issues. See Chandni I, Inc. v. Patel, 601 S.W.3d 13 (Tex.App.--El Paso 2019, pet. denied) (where appellants did not meet their burden of showing that the TCPA applied to appellee’s claim, court need not address issues of whether appellee established a prima facie case for his claim or whether appellants had a valid defense to the claim); see also Pacheco, 600 S.W.3d at 411 (same).
VI. CONCLUSION
Because we conclude that CPL has failed to establish that the TCPA applies to Polo’s lawsuit, we need not address the other issues raised by the parties. We therefore affirm the trial court’s judgment denying CPL’s motion to dismiss and remand this matter to the trial court for further proceedings.
JEFF ALLEY, Chief Justice
August 6, 2020
Before Alley, C.J., Rodriguez, and Palafox, JJ.