ETX SUCCESSOR TYLER F/K/A EAST TEXAS MEDICAL CENTER v. TERRIE PRIDGEON, AS GUARDIAN OF THE PERSON AND THE ESTATE OF JASON C. DUBOSE
NO. 12-18-00083-CV
IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS
February 14, 2019
APPEAL FROM THE 217TH JUDICIAL DISTRICT COURT ANGELINA COUNTY,
OPINION
ETX Successor Tyler, formerly known as East Texas Medical Center (ETMC), brings this interlocutory appeal of the trial court‘s denial of its motion to dismiss the declaratory judgment action filed by Terrie Pridgeon, as guardian of the person and the estate of Jason C. Dubose. In its sole issue, ETMC asserts that the Texas Citizens Participation Act (TCPA)1 applies, there are no applicable statutory exemptions, Pridgeon did not meet her burden to establish a prima facie case, and ETMC established affirmative defenses to Pridgeon‘s claim. We affirm.
After being seriously injured in a car accident in September 2015, Jason C. Dubose obtained treatment at ETMC. While Dubose was still in the hospital, ETMC filed a hospital lien pursuant to
Pridgeon filed a personal injury lawsuit against the person who caused DuBose‘s injuries. That case settled in July 2017. A few months later, Pridgeon filed a declaratory judgment action pursuant to the Uniform Declaratory Judgments Act (UDJA)2 for a determination of the parties’ rights, status, and other legal relationship arising under
TEXAS CITIZENS PARTICIPATION ACT
In its sole issue, ETMC asserts that the trial court erred in failing to grant its TCPA motion to dismiss. It argues that recording the notice of hospital lien constitutes an exercise of the right to free speech and the right to petition, the statute‘s commercial speech and bodily injury exemptions do not apply, Pridgeon failed to satisfy her burden of establishing a prima facie case for each essential element of her claim, and ETMC established affirmative defenses to Pridgeon‘s claim.
Standard of Review
We review a trial court‘s ruling on a TCPA motion to dismiss de novo. Lane v. Phares, 544 S.W.3d 881, 886 (Tex. App.-Fort Worth 2018, no pet.). Specifically, we consider de novo whether each party has met its respective burden under the Act‘s two-step dismissal mechanism. Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 873 (Tex. App.-Austin 2018, pet. filed). In our review, we consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.
Applicable Law
The TCPA provides a two-step procedure for early dismissal of claims brought to intimidate or to silence a defendant‘s exercise of its First Amendment rights.
ETMC‘s First Amendment Rights
ETMC asserts that the notice of hospital lien that it filed constitutes an exercise of the right of free speech or, alternatively, the right to petition. Pridgeon argues that her suit is not a challenge to ETMC‘s speech, and the lien notice is not speech on a matter of public concern.
The TCPA defines “exercise of the right of free speech” as a communication made in connection with a matter of public concern.
A hospital has a lien on a cause of action or claim of an individual who receives hospital services for injuries caused by an accident that is attributed to the negligence of another person.
ETMC‘s filing of written notice of the hospital lien fits within the definition of communication. See
Statutory Exemptions
Pridgeon asserts that her suit is exempt from a TCPA analysis due to application of the bodily injury exemption and the commercial speech exemption. ETMC argues that neither exemption applies and therefore cannot justify the trial court‘s failure to grant its motion to dismiss. The party asserting the exemption has the burden of proving its applicability. Kirkstall Road Enters., Inc. v. Jones, 523 S.W.3d 251, 253 (Tex. App.-Dallas 2017, no pet.).
Regarding the commercial speech exemption, the TCPA 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.
ETMC contends it is not primarily engaged in the business of selling or leasing goods or services. It asserts that it is primarily in the business of treating sick and injured people and the selling of goods and services is ancillary to its primary purpose. ETMC does not contend that it does not charge for its services. As demonstrated by its filing the lien, attempting to have Pridgeon‘s declaratory judgment action dismissed, and countersuing to recover almost $600,000 for goods and services provided to Dubose, ETMC wants to be paid. Pridgeon provided evidence that, between 1996 and 2015, ETMC charged in excess of $2.5 billion for its services. During that same time period, ETMC‘s expenses totaled less than $500,000,000, indicating that ETMC sold its services, and for an amount much greater than the expenses required for providing those services. The business of selling or leasing goods or services and the business of treating sick and injured people are not mutually exclusive activities. We conclude ETMC participated in the business of selling goods or services in the context of treating sick and injured people.
ETMC also argues that the commercial speech exemption does not apply because Pridgeon was not the intended audience of the lien. We disagree. The lien attaches to the personal injury lawsuit Dubose had against the person who caused his injuries, the judgment arising out of that lawsuit, or the proceeds of a settlement of his cause of action. See
ETMC was primarily engaged in the business of selling goods or services, that is, healthcare. ETMC filed the lien in its capacity as seller of healthcare, and the lien arose out of a commercial transaction involving ETMC‘s provision of healthcare to Dubose, who was the intended audience of the lien. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam). We conclude that the
Prima Facie Case
ETMC also asserts that Pridgeon failed to meet her burden to establish by clear and specific evidence a prima facie case for each essential element of her claim. ETMC bases its argument on its interpretation of Pridgeon‘s claim. ETMC emphasizes that Pridgeon “pleaded for declaratory judgment specifically holding that ETMC‘s ‘lien amount of $597,830.16 exceeds the reasonable and regular rate for the services provided.‘” Therefore, ETMC asserts that Pridgeon has the burden to prove whether the lien amount of $597,830.16 exceeds the reasonable and regular rate for the services provided. We disagree. For purposes of determining if ETMC‘s motion to dismiss should be granted, the reasonableness of the lien amount is not the issue Pridgeon must address.4
The trial court may not dismiss a legal action pursuant to the TCPA if the party bringing the legal action establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.
The UDJA is a procedural device available as a remedy. Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996) (per curiam) (orig. proceeding). The UDJA‘s purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.
Therefore, we evaluate the pleadings and evidence adduced in connection with ETMC‘s motion to dismiss to determine whether Pridgeon established a prima facie case by clear and specific evidence that (1) a justiciable controversy exists as to
In her petition for declaratory judgment, Pridgeon asked the court to affirmatively declare the rights, status, and other legal relationship between the parties arising under the UDJA. She argued that
Thus, in her suit for declaratory action Pridgeon sought to have her rights under the hospital lien statute construed. Her burden then was to establish that a justiciable controversy exists as to the rights of the parties with respect to construction of the hospital lien statute and to show that the controversy will be resolved by the declaration sought.
ETMC‘s motion to dismiss asserts an interpretation of the statute that is at odds with Pridgeon‘s, arguing that the statute does not require the lien amount to be a reasonable and regular rate. While a mere difference of opinion does not create a justiciable controversy, under the circumstances of this case, the dueling interpretations as to whether the statute requires the charges to be reasonable are at the crux of the parties’ dispute. See Allstate Indem. Co. v. Mem‘l Hermann Health Sys., 437 S.W.3d 570, 575-76 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (held, in context of standing dispute, insurance company‘s declaratory judgment action concerning the construction of the hospital lien statute, including its right to challenge the reasonableness of billed services, presented a justiciable controversy which will be resolved by the declaration sought). Further, whether the statute requires the amount of the lien to be a reasonable and regular rate is the question of statutory construction before the trial court. Statutory construction is a purely legal question that does not involve evidentiary issues or burdens of proof. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex. 1989) (per curiam). A justiciable controversy exists as to the rights and status of the parties with respect to the hospital lien statute. Thus, Pridgeon established a prima facie case as to the first element of her declaratory judgment action. See Dolcefino, 540 S.W.3d at 201.
ETMC‘s argument that Pridgeon must prove the lien amount exceeds the reasonable and regular rate for the services provided misses the mark. Fact issues in declaratory judgment proceedings may be tried and determined in the same manner that issues of fact are tried and determined in other civil actions.
Furthermore, ETMC asserted numerous counterclaims against Pridgeon in an effort to obtain payment. A hospital attempting to recover sums owed pursuant to a hospital lien bears the burden of proving the amount owed. See Dallas Cty. Hosp. Dist. v. Perrin, 694 S.W.2d 257, 260 (Tex. App.-Dallas 1985, writ ref‘d n.r.e.) (holding that, in case involving earlier version of hospital lien statute, hospital has burden of proving its charge was not more than a reasonable and regular rate for services billed); see also Linnstaedter, 226 S.W.3d at 412 (holding that the
We note that ETMC does not argue that, if a justiciable controversy exists, the requested declaratory judgment will not resolve it. ETMC‘s counterclaims for conversion and for money had and received are based on its lien, and it requested an award of the entire amount of its bill. A determination of the correct interpretation and application of the hospital lien statute will resolve the parties’ dispute about how to determine the amount owed. See Allstate Indem. Co., 437 S.W.3d at 575-76. Specifically, Pridgeon will know if she is responsible for the full amount of the hospital bill. We conclude that Pridgeon met her burden to show that the controversy would be resolved by the declarations sought. See Dolcefino, 540 S.W.3d at 201.
Affirmative Defenses
ETMC also asserts that its motion to dismiss should have been granted because it established affirmative defenses to Pridgeon‘s claim. Again relying on the language in Pridgeon‘s pleading asking the court to find that the amount of the lien exceeds the reasonable and regular rate for the services provided, ETMC argues that is the “claim” that must be considered in determining whether it has established a defense to Pridgeon‘s claim.
ETMC argues that it established the defense of quasi-estoppel because Pridgeon‘s use of the full amount of the hospital bill in her negotiations with the third-party tortfeasor is inconsistent with her assertion in her declaratory judgment action that the bill was not reasonable and regular. Quasi-estoppel precludes a party from asserting, to another‘s disadvantage, a right inconsistent with a position previously taken. Samson Expl., LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 778 (Tex. 2017).
ETMC also asserts that it established the defense of estoppel by contract because Pridgeon contractually assigned all money due to her pursuant to the settlement up to the total amount of her ETMC account. The doctrine of estoppel by contract provides that a party is bound by the terms of his contract until it is set aside by fraud, accident, or mistake. Royalco Oil & Gas Corp. v. Stockhome Trading Corp., 361 S.W.3d 725, 732 (Tex. App.-Fort Worth 2012, no pet.).
ETMC‘s reliance on these affirmative defenses is misplaced. ETMC would have been entitled to dismissal of Pridgeon‘s declaratory judgment suit if ETMC established a valid defense to her claim. See
Conclusion
Because filing the hospital lien is an exercise of free speech and Pridgeon‘s declaratory judgment suit was a response to the lien, the TCPA applies. However, Pridgeon‘s suit is exempt from the TCPA‘s dismissal provisions due to application of the statute‘s bodily injury and commercial speech exemptions. Additionally, Pridgeon avoids dismissal because she met her burden to prove her prima facie case, and ETMC did not raise any viable affirmative defenses to Pridgeon‘s declaratory judgment suit. We overrule ETMC‘s sole issue.
DISPOSITION
Having overruled ETMC‘s sole issue, we affirm the trial court‘s denial by operation of law of ETMC‘s motion to dismiss pursuant to the TCPA.
BRIAN HOYLE
Justice
Opinion delivered February 14, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
(PUBLISH)
JUDGMENT
FEBRUARY 14, 2019
NO. 12-18-00083-CV
ETX SUCCESSOR TYLER F/K/A EAST TEXAS MEDICAL CENTER, Appellant V. TERRIE PRIDGEON (AS GUARDIAN OF THE PERSON AND THE ESTATE OF JASON C. DUBOSE), Appellee
Appeal from the 217th District Court of Angelina County, Texas (Tr.Ct.No. CV-00752-17-11)
THIS CAUSE came to be heard on the oral arguments, appellate record, and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the denial by operation of law of Appellant ETX SUCCESSOR TYLER F/K/A EAST TEXAS MEDICAL CENTER‘S motion to dismiss.
It is therefore ORDERED, ADJUDGED and DECREED that the trial court‘s denial by operation of law be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellant, ETX SUCCESSOR TYLER F/K/A EAST TEXAS MEDICAL CENTER, for which execution may issue, and that this decision be certified to the court below for observance.
Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.