Round Table Physicians Grp., PLLC v. Kilgore

607 S.W.3d 878

ROUND TABLE PHYSICIANS GROUP, PLLC, and Lisa Snyder, Appellants

v.Julie KILGORE, Individually and as Next Friend of XXXX Kilgore, a Minor, Appellee

NO. 14-19-00543-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed August 25, 2020

Kevin Jewell, Justice

Appellants Round Table Physicians Group, PLLC and Lisa Snyder¹ appeal the denial of their Texas Citizens Participation Act ("TCPA") motion to dismiss Julie Kilgore's declaratory judgment suit, which alleges that Round Table's chapter 55 medical lien is fraudulent.² Round Table argues that the trial court erred by denying the motion to dismiss because the TCPA applies to Kilgore's claim, no statutory exemptions apply, Kilgore did not present prima facie evidence in support of her claim, and Round Table conclusively proved a defense.³ After examining the statutory language and relevant case law, we conclude that the TCPA's "commercial speech" exemption applies in this case. Accordingly, we affirm the part of the trial court's order denying the appellants' motion to dismiss under the TCPA.

In its order, the trial court also expressly reached a merits issue and determined that Round Table's liens are invalid. In our court, Round Table challenges that part of the order as well. Concluding, however, that we lack jurisdiction over Round Table's attack on the portion of the trial court's order adjudicating the merits, we dismiss that part of Round Table's appeal.

Background

Julie Kilgore and her minor child were involved in an automobile collision, after which Kilgore and her child received medical treatment from Round Table Physicians Group, PLLC. Round Table is a physician group that provides medical services at a freestanding emergency medical care facility. Round Table billed Kilgore $700 for medical treatment provided to her and $500 for medical treatment provided to her son.

Approximately two weeks after treating Kilgore and her child, Round Table filed with the county clerk two notices of liens (for the services respectively rendered to Kilgore and to her child) under Texas Property Code chapter 55. Chapter 55 creates a lien in favor of certain medical providers who treat individuals allegedly injured by the negligence of a third party and establishes procedures to secure the lien. See Tex. Prop. Code § 55.002(a)-(d) (stating that, subject to certain conditions, hospital or emergency medical services provider has lien on cause of action of patient who receives hospital services for injuries caused by accident attributed to another's negligence). The lien attaches to the patient's personal-injury cause of action, as well as to any corresponding judgment or proceeds of settlement. Id. § 55.003(a)(1)-(3). The statute's purpose is to provide hospitals "an additional method of securing payment from accident victims, encouraging their prompt and adequate treatment." In re N. Cypress Med. Ctr. Operating Co., Ltd. , 559 S.W.3d 128, 131 (Tex. 2018) (orig. proceeding). Round Table also provided written notice of the lien filings to Kilgore. See Tex. Prop. Code § 55.002(a), (d).

Kilgore, individually and as next friend of her child, sued the third party alleged to have caused the car accident and joined Round Table and Snyder—Round Table's revenue specialist manager who signed the liens—as defendants. Kilgore sought a declaratory judgment that the liens were invalid because Round Table is not authorized to file a lien under chapter 55 and that the charges secured by the liens were not reasonable. Kilgore sought monetary relief under the fraudulent lien statute. See Tex. Civ. Prac. & Rem. Code § 12.002.

Round Table and Snyder filed a motion to dismiss under the TCPA, arguing that Kilgore's legal action related or was in response to notices of the liens, which Round Table contended were an exercise of its rights of free speech and to petition. Round Table also argued that Kilgore could not present prima facie evidence of her claims. As relevant here, Kilgore responded that the TCPA did not apply because Round Table's notices of liens were commercial speech exempted from the TCPA.⁴ In a single order, the trial court denied the motion to dismiss and also determined that Round Table's liens "are invalid as they do not meet the criteria of being a hospital lien or an emergency medical services lien per Ch. 55 of the Texas Property Code." Round Table challenges both rulings in the trial court's order by interlocutory appeal.⁵

Analysis

Round Table argues that the trial court erred by denying its TCPA motion to dismiss. According to Round Table: the Act applies because Kilgore's legal action is based on, relates to, or is in response to Round Table's exercise of its rights to petition or speak freely; no statutory exemption applies; Kilgore failed to provide prima facie evidence of her claims; and Round Table proved a defense. Kilgore responds that the Act does not apply because her claims are exempted under the statutory "commercial speech" provision. Regarding the trial court's finding that the liens are invalid, Round Table contends that the trial court erred by reaching that merits issue because it was not presented by the TCPA motion to dismiss.

A. The Texas Citizens Participation Act

The TCPA contemplates an expedited dismissal procedure when a "legal action" 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." Tex. Civ. Prac. & Rem. Code § 27.003(a). The rights of free speech and to petition are at issue here. The TCPA defines "the exercise of the right of free speech" as "a communication made in connection with a matter of public concern." Id. § 27.001(3). A "matter of public concern" is defined in relevant part as including "an issue related to ... health or safety; [or] a good, product, or service in the marketplace." Id. § 27.001(7)(A), (E). "Exercise of the right to petition" means, as relevant here: a communication in or pertaining to a judicial proceeding or an official proceeding, other than a judicial proceeding, to administer the law; or a communication in connection with an issue under consideration or review, or that is reasonably likely to encourage consideration or review of an issue, by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding. Id. § 27.001(4)(A)(i)-(ii), (B), (C). For both the right of free speech and the right to petition, a " ‘[c]ommunication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1).

In enacting the TCPA, the legislature explained that its overarching purpose is "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." Id. § 27.002. "To effectuate the statute's purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant's exercise of these First Amendment rights." ExxonMobil Pipeline Co. v. Coleman , 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). In the first step, the party filing a motion to dismiss under the TCPA bears the burden to show by a "preponderance of the evidence" that the "legal action" is "based on, relates to, or is in response to," as relevant to this appeal, the party's exercise of the right of free speech or right to petition. Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 27.005(b) ; see also Coleman , 512 S.W.3d at 898. If the movant satisfies this burden, the trial court must dismiss the lawsuit unless an exemption applies or unless the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code § 27.005(c) ; see also Coleman , 512 S.W.3d at 899.

The nonmovant can avoid the Act's burden-shifting requirements by showing that one of several exemptions applies. See Tex. Civ. Prac. & Rem. Code § 27.010. One of those exemptions—known as the "commercial speech" exemption—impacts the present dispute, and we discuss it subsequently. The nonmovant must prove each element of a claimed exemption by a preponderance of the evidence. Hieber v. Percheron Holdings, LLC , 591 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).

In construing the Act and determining its applicability, we review statutory construction issues de novo. See Lippincott v. Whisenhunt , 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Similarly, whether the parties have met their respective burdens is a question of law that we review de novo. See Dallas Morning News, Inc. v. Hall , 579 S.W.3d 370, 377 (Tex. 2019). Under the de novo standard, we "make an independent determination and apply the same standard used by the trial court in the first instance." Fawcett v. Grosu , 498 S.W.3d 650, 656 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (internal quotation omitted).

We apply this standard of review to a relatively limited universe of evidence. Courts must consider the relevant pleadings and any supporting or opposing affidavits "stating the facts on which the liability or defense is based." Tex. Civ. Prac. & Rem. Code § 27.006(a). We review this evidence in the light most favorable to the nonmovant. See Brugger v. Swinford , No. 14-16-00069-CV, 2016 WL 4444036, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.).

B. The Commercial Speech Exemption

Round Table argues that the TCPA applies because filing notices of liens under chapter 55 implicates both the right to free speech and the right to petition. We will presume without deciding that Round Table met its initial burden to show that the Act applies. We need only consider Kilgore's...