PEGGY PIERCE, Appellant V. GREGORY STOCKS, MD, Appellee
NO. 01-18-00990-CV
Court of Appeals For The First District of Texas
July 30, 2019
On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2018-56514
Appellant, Peggy Pierce, appeals the trial court’s order denying her motion to dismiss filed pursuant to the
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.
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
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
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.”
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
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.”
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.”
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
Section 154.073 of the
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.
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
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
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).
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.