Crossroads Hospice, Inc. v. FC Compassus, LLC

606 S.W.3d 294

CROSSROADS HOSPICE, INC., Appellant

v.FC COMPASSUS, LLC, CLP Regency of Texas, LLC d/b/a Hospice Compassus, and Asperion Hospice of Houston, LP d/b/a Hospice Compassus—The Woodlands, Appellees

NO. 01-19-00008-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued March 17, 2020

William P. Maines, Reece Rondon, Jeffrey T. Bentch, Caroline H. Russe, Hall Maines Lugrin, P.C., Williams Tower, 64th Floor, 2800 Post Oak Boulevard, Houston, Texas 77056, for Appellant.

Timothy A. Rybacki, Allan H. Neighbors, IV, Karmyn McCloud, LITTLER MENDELSON, P.C., 1301 McKinney Street, Suite 1900, Houston, Texas 77010, for Appellees.

Panel consists of Justices Lloyd, Goodman, and Landau.

Russell Lloyd, Justice

Appellees FC Compassus, LLC, CLP Regency of Texas, LLC, d/b/a Hospice Compassus, and Asperion Hospice of Houston, LP d/b/a Hospice Compassus—The Woodlands ("collectively, Compassus") sued appellant Crossroads Hospice, Inc. ("Crossroads"), alleging causes of action for knowing participation in breach of duty of loyalty/fiduciary duties, tortious interference with contract, and conspiracy. Crossroads filed a motion to dismiss pursuant to the Texas Citizens Participation Act ("TCPA").¹ Following a hearing, the trial court denied the motion. In one issue, Crossroads contends that the trial court erred in denying its motion to dismiss because Compassus failed to prove with clear and specific evidence a prima facie case for each essential element of its causes of action. We reverse and remand.

Background

A. Factual History

Compassus is a nationwide provider of hospice care and related services. In June 2016, Compassus hired Darla Clement as executive director of its two Houston programs. In that role, Clement was responsible for overseeing and managing both Houston programs, including all business operations, financial budgeting and performance, employee management, and regulatory compliance and accreditation.

In connection with her employment, Clement signed a Protective Covenants Agreement ("PCA") on June 9, 2016. Paragraph 3(a) of the PCA contains a non-interference with business relationships provision and paragraph 3(b) contains a non-solicitation of colleagues and contractors provision.² Both covenants were in effect during Clement's employment and for one year thereafter.

In early 2018, Clement and several colleagues discussed leaving the company and forming a startup competitor. Asserting that they were dissatisfied with Compassus's quality of care, they sought to provide a higher level of hospice care to the community. In early May, Clement was offered a new position at Compassus which she considered a demotion. On May 2, Clement emailed a business plan to Debra Houser, a contact at Crossroads, one of Compassus's competitors which did not have a Houston office. In mid-May, Clement took a paid leave of absence to consider Compassus's job offer and evaluate her options.

On May 21, Houser put Clement in contact with Tony Chase, Crossroads's Chief Operating Officer. That same day, Houser emailed Chase stating that "[Clement] is the Administrator" and "[s]he can bring her whole team." On May 22, in response to Chase's request, Clement emailed Chase with salary range information of "identified staff," including Compassus Medical Director, Dr. Jeffrey Lee, whom Clement described as "a board certified geriatrician [who] is networked like you have no idea." Clement also described a group of Dr. Lee's patients who would follow Dr. Lee to Crossroads. On May 23, Clement sent an email to Chase and Dr. Lee for the purpose of introducing them to one another and to provide information regarding their respective backgrounds.

On May 25, Clement emailed Chase with a list of employees whom she identified as willing to join Crossroads as well as their salary requests and start dates. Clement also requested a draft contract for Dr. Lee's review. On May 26, Dr. Lee provided written notice to Compassus of his intent to resign from his role as Medical Director.

On May 28, Clements accepted a job offer from Crossroads. Chase prepared a series of offer letters for the individuals who had expressed an interest in joining Crossroads and forwarded them to Clement to present to each prospective employee. In the ensuing days, Crossroads hired Dr. Lee and four other Compassus employees to establish and work in Crossroads's Houston office. Compassus Regional Vice-President Toby Radabaugh asked Clement if she knew what was going on, and Clement responded that she knew nothing about the departures.

On June 5, Clements resigned her position at Compassus and began her employment at Crossroads as Vice-President of Operations. She subsequently became Chief Operating Officer. Crossroads's Houston office opened its doors on June 11.

On June 19, Radabaugh sent an email to Clement reminding her that she had signed a protective covenant agreement with Compassus and attached a copy of the agreement to her email. Clement responded that the agreement was no longer applicable to her.

Sometime in June, Dawn Kindhart, Compassus's executive director in its Austin office and Clement's former supervisor, contacted Clement to ask if she was aware of any hospice employment opportunities because she was "being exited out of her role" at Compassus. On July 2, Clement offered Kindhart the position of Vice-President of Operations at Crossroads. Kindhart accepted the offer that same day.

B. Trial Court Proceedings

On July 6, 2018, Compassus filed suit against Clement, Dr. Lee, and Crossroads. Against Crossroads, Compassus alleged causes of action for knowing participation in breach of duty of loyalty/fiduciary duties, tortious interference with contract, and conspiracy.³

On September 7, 2018, Crossroads filed a motion to dismiss Compassus's lawsuit under the TCPA.⁴ Crossroads contended that the TCPA applied because Compassus's claims were based on, related to, or in response to Crossroads's exercise of its right to association and right to free speech "because the crux of Compassus's claims against Crossroads center upon its communications with Clement and/or other former Compassus employees for the promotion and pursuit of their common interests in developing and providing hospice and palliative care" to the community. Crossroads further argued that Compassus could not establish by clear and specific evidence a prima facie case for each essential element of its claims. Crossroads argued that Compassus could not prove its tortious interference claim because Crossroads did not know of Clement's PCA with Compassus until Crossroads received a copy of Compassus's petition. Crossroads argued that because it had no knowledge of Clement's agreement with Compassus, Compassus could not prove knowing participation with respect to Clement's alleged breaches of the agreement. It further argued that because Compassus could not prevail on either its tortious interference claim or its knowing participation in breach of fiduciary duty claim, there was no underlying tort upon which to base its conspiracy claim.

On October 11, 2018, the trial court granted, in part, Compassus's motion for discovery. The trial court ordered Clement and Crossroads to produce certain documents and allowed Compassus to depose Clement and a Crossroads's corporate representative.

On December 6, 2018, Compassus filed its response in opposition to Crossroads's motion to dismiss. In support of its response, Compassus attached as exhibits Clement's PCA with Compassus, excerpts (including exhibits) from Clement's deposition, excerpts from Chase's deposition, and several affidavits of Compassus employees. Compassus did not dispute that the TCPA was applicable to the lawsuit. Rather, it argued that it presented sufficient evidence to establish a prima facie case for each essential element of its claims.

With regard to its knowing participation in breach of fiduciary duty claim, Compassus argued that Clement held an informal fiduciary relationship with Compassus as the executive director of its Houston programs and that she breached her fiduciary duties to Compassus while still employed when she:

• "hand-picked" a core team of Compassus employees to join her in establishing a direct competitor in the Houston market;

• introduced Crossroads to the hand-picked Compassus team (and vice versa) for purposes of those employees moving to Crossroads;

• developed and proposed to Crossroads's CEO the positions, salaries, start dates, and other employment terms for the Compassus team;

• presented Crossroads's job offers to that team of Compassus employees;

• solicited further Compassus employees to attempt to have them join Crossroads;

• solicited hospice business for Crossroads from healthcare facilities that were active Compassus referral sources;

• identified Compassus medical director, Dr. Lee, as a potential medical director for Crossroads and introduced him to Crossroads's CEO for that purpose;

• assisted in negotiating the terms of Dr. Lee's medical director agreement with Crossroads;

• had discussions with Dr. Lee (a Compassus referral source) regarding moving Compassus patients to Crossroads; and

• contacted vendors for Crossroads to secure contracts that mirrored Compassus's contracts.

In support of its contention that Crossroads knowingly participated in Clement's breaches, Compassus pointed to evidence showing that (1) "Crossroads was made aware of Clement's fiduciary role with Compassus" when she was introduced to Crossroads's CEO as "the Administrator" who "can bring her whole team" to Crossroads and (2) Crossroads was aware that Clement had taken the actions above for Crossroads while she was still a Compassus employee. According to Compassus, the evidence also showed that Chase "worked in tandem with Clement and provided her the financial backing and platform to see her fiduciary breaches reach their intended conclusion" when he:

• provided her and the solicited Compassus team with a "very nice financial opportunity to brand

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