Motion for Rehearing Denied, Affirmed, and Substitute Memorandum Opinion
filed March 5, 2020.




                                       In The

                      Fourteenth Court of Appeals

                                NO. 14-18-00929-CV

         THE METHODIST HOSPITAL D/B/A HOUSTON METHODIST
                        HOSPITAL, Appellant
                                         V.

                           WILLIE HARVEY, Appellee

                     On Appeal from the 125th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2018-29940

     SUBSTITUTE MEMORANDUM OPINION

         Appellant’s motion for rehearing is denied. We withdraw our memorandum
opinion of January 28, 2020, and issue the following memorandum opinion in its
stead.

         In this accelerated interlocutory appeal, appellant The Methodist Hospital
d/b/a Houston Methodist Hospital challenges the denial of its motion to dismiss
under the Texas Citizens Participation Act (“TCPA”).1 Appellee Willie Harvey is a
former Houston Methodist employee. One of Harvey’s subordinates, Jason Lazo,
notified Harvey’s supervisor that Harvey had solicited gifts from one of Houston
Methodist’s vendors.              Houston Methodist investigated Lazo’s allegations and
ultimately terminated Harvey. Harvey then filed suit against Houston Methodist and
Lazo, alleging, in pertinent part, that Lazo defamed Harvey and that Houston
Methodist was vicariously liable for Lazo’s statements. Contending that Harvey’s
defamation claim is based on, relates to, or is in response to Lazo’s exercise of free
speech, Houston Methodist filed a motion to dismiss under the TCPA.2 Harvey
opposed the motion on the grounds that: (1) the TCPA does not apply; and (2) clear
and specific evidence supports a prima facie case for each element of his defamation
claim. The trial court did not rule on Houston Methodist’s motion, so it was denied
by operation of law.3

       We conclude that the TCPA does not apply to Harvey’s lawsuit because the
communications at issue do not involve a matter of public concern. Accordingly,
we affirm the trial court’s denial of Houston Methodist’s TCPA motion to dismiss.

                                           Background

       Harvey is a former manager in Houston Methodist’s Facilities Maintenance
Department. Lazo, Harvey’s subordinate, reported to a manager Lazo’s belief that




       1
         See Tex. Civ. Prac. & Rem. Code §§ 27.001-.011 (West 2015). The TCPA was amended
in 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684. The 2019
amendments do not apply to this case, which was filed on May 3, 2018. See id. §§ 11-12, 2019
Tex. Gen Laws at 687 (providing that amendments apply to actions filed on or after September 1,
2019). All references to the TCPA are to the version that applies to this dispute.
       2
           See Tex. Civ. Prac. & Rem. Code § 27.003(a).
       3
           See id. § 27.008(a).

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Harvey improperly solicited gifts from a hospital vendor.4 Houston Methodist
investigated Lazo’s report and thereafter terminated Harvey’s employment.

       Harvey filed suit against Houston Methodist and Lazo, asserting claims for,
as is relevant here, defamation and tortious interference with an employment
relationship.5 Harvey asserted that he did not instruct Lazo to request personal gifts
from a vendor, and that Lazo’s contrary statements to Harvey’s supervisor were false
and defamatory.

       Houston Methodist filed a motion to dismiss under the TCPA. Houston
Methodist alleged that Harvey’s defamation allegations fall within the TCPA’s
scope because they are based on, related to, or in response to a party’s exercise of
the right of free speech, which means a communication in connection with a “matter
of public concern.” Houston Methodist further asserted that the alleged statements
forming the basis of the claim concerned the public because they “centered on an
issue related to a good, product, or service in the marketplace and/or health, safety,
environmental, or economic concerns.” Houston Methodist attached an affidavit, in
which Lazo averred that he emailed Houston Methodist’s Facilities Maintenance
Services supervisor and detailed numerous instances when he overheard Harvey
requesting personal gifts from a vendor. According to Lazo, Harvey’s requests
occurred during the time period when the vendor’s performance or contract with
Houston Methodist was under discussion. Houston Methodist argued that Harvey’s

       4
        According to Harvey’s allegations, Lazo told the supervisor that Lazo was instructed by
Harvey to solicit gifts. Lazo, in his affidavit, stated that he overheard Harvey soliciting gifts. This
minor factual discrepancy is not material to the outcome.
       5
         Harvey also filed claims for negligence and wrongful termination, and he sought to hold
Houston Methodist vicariously liable for Lazo’s statements and conduct. Harvey filed an amended
petition on December 7, 2018, adding more factual allegations, but we do not consider the facts
contained in his amended petition because he filed it after Houston Methodist’s motion to dismiss
was overruled by operation of law. See Tex. Civ. Prac. & Rem. Code § 27.006(a); cf. also
Bacharach v. Garcia, 485 S.W.3d 600, 602-03 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

                                                  3
alleged requests for “personal kickbacks” pertained to an issue related to a product
or service in the marketplace because Houston Methodist’s “vendor contracts are bid
upon in an open market.” Houston Methodist further urged that Lazo’s reported
statements pertained to matters of economic concern and community well-being,
such as the potential for Houston Methodist to suffer economic losses if it became
publicly known as a business “where kickbacks are solicited.” Finally, Houston
Methodist alleged that Harvey could not establish a prima facie case for every
element of his defamation claim.

      In response to Houston Methodist’s motion, Harvey argued that “soliciting a
vendor for personal kickbacks” is not a matter of public concern. Because his
defamation claim is not based on, related to, or in response to a matter of public
concern, Harvey continued, the TCPA does not apply to his claim and the burden
did not shift to him to present prima facie proof supporting his claims.6
Alternatively, Harvey purported to present prima facie proof on each element of his
defamation and tortious interference claims in an attached affidavit.

      The trial court did not rule on Houston Methodist’s TCPA motion to dismiss,
resulting in its denial by operation of law. Tex. Civ. Prac. & Rem. Code § 27.008(a).
Houston Methodist appeals.

                                       Analysis

A.    Standard of Review and Applicable Law

      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


      6
        See Tex. Civ. Prac. & Rem. Code § 27.005(c); In re Lipsky, 460 S.W.3d 579, 586-87
(Tex. 2015) (orig. proceeding).

                                           4
§ 27.003(a). Only the right of free speech is 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 . . . environmental, economic, or
community well-being; [or] a good, product, or service in the marketplace.” Id.
§ 27.001(7)(B), (E). 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). The Texas Supreme Court has held that
the Act may protect both public and private communications. See ExxonMobil
Pipeline Co. v. Coleman, 512 S.W.3d 895, 899 (Tex. 2016) (per curiam) (discussing
Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam)).

      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.” Tex. Civ. Prac. & Rem. Code
§ 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.” Coleman, 512 S.W.3d at
898. In the first step, the party filing a motion to dismiss under section 27.003 of 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.” 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 the nonmovant
“establishes by clear and specific evidence a prima facie case for each essential


                                           5
element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c); see
Coleman, 512 S.W.3d at 899. In determining whether to dismiss an action, the trial
court must consider “the pleadings and supporting and opposing affidavits stating
the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code
§ 27.006(a).

      We construe the TCPA liberally to effectuate its purpose and intent fully. See
Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018);
Coleman, 512 S.W.3d at 899; Cox Media Grp., LLC v. Joselevitz, 524 S.W.3d 850,
859 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Tex. Civ. Prac. & Rem. Code
§ 27.011(b). However, we cannot ignore the legislature’s purpose for enacting the
TCPA, particularly when this purpose is expressly included in the statute. See Jardin
v. Marklund, 431 S.W.3d 765, 771 (Tex. App.—Houston [14th Dist.] 2014, no pet.).
A court’s determination of whether communications are matters of public concern
under the TCPA is subject to a de novo standard of review. See Adams, 547 S.W.3d
at 894. Under the de novo standard, we “make an independent determination and
apply the same standard used by the trial court in the first instance.” Joselevitz, 524
S.W.3d at 859.

B.    Application

      Houston Methodist argues first that Lazo’s statements are a matter of public
concern because they relate to the products and services of one of its vendors,
Schindler Elevator Corp., in that Harvey allegedly requested Houston Rodeo Bar-B-
Q Cookoff tickets and Houston Rockets playoff tickets from Schindler and told or
suggested that Schindler needed to “outdo” a previous Christmas gift. See Tex. Civ.
Prac. & Rem. Code § 27.001(7)(E).          According to Houston Methodist, these
communications “generally occurred during discussions concerning Schindler’s
performance on projects and Schindler’s contract with Houston Methodist.”

                                          6
      We conclude, however, that the statements forming the basis of Harvey’s
claims do not relate to products or services “in the marketplace.” “The words ‘good,
product, or service in the marketplace’ . . . do not paradoxically enlarge the concept
of ‘matters of public concern’ to include matters of purely private concern. [T]he
‘in the marketplace’ modifier suggests that the communication must have some
relevance to a public audience of potential buyers or sellers.” Creative Oil & Gas,
LLC v. Lona Hills Ranch, LLC, No. 18-0656, —S.W.3d—, 2019 WL 6971659, at
*5-7 (Tex. Dec. 20, 2019). Harvey’s alleged solicitation of gifts from Schindler do
not involve a public audience of potential buyers or sellers. Instead, these matters
relate to only Harvey’s, Houston Methodist’s, and (potentially) Schindler’s private
concerns.

      Houston Methodist relies on Camp v. Patterson, No. 03-16-00733-CV, 2017
WL 3378904, at *5 & n.6 (Tex. App.—Austin Aug. 3, 2017, pet. denied) (mem.
op.), but we are unpersuaded that Camp compels a different conclusion. The facts
of Camp are easily distinguished. There, Camp, a former employer of Patterson,
drafted emails and text messages to third-party customers accusing Patterson of
billing the third-party customers with fraudulent invoices. Id. at *2-4. After
Patterson discovered the texts and emails, “Patterson brought suit for defamation,
business disparagement, tortious interference with prospective business relations,
and intentional infliction of emotional distress, all predicated on the text and email
messages.” Id. at *5. Camp moved to dismiss Patterson’s claims under the TCPA,
alleging that Patterson’s claims were based on Camp’s exercise of free speech,
specifically, communications related to goods, products, or services in the
marketplace. Id. The Austin Court of Appeals held that the communications on
which Patterson’s claims were based were made in connection with issues related to
goods and products sold “in the marketplace.” Id. In today’s case, Lazo reported


                                          7
that he overheard Harvey requesting personal gifts from a vendor. There is no
connection to goods or services “in the marketplace,” as was present in Camp.

      Next, Houston Methodist asserts that the TCPA applies because Lazo’s
statements—even though made privately among Houston Methodist employees—
were a matter of public concern because they were made in connection to issues
related to Houston Methodist’s economic and community well-being. According to
Houston Methodist, the statements “concerned [Harvey’s] alleged wrongdoing and
related economic and perhaps legal risks from [Harvey’s] conduct”, and “Lazo’s
statements also concern the community well-being as he reported unethical
(violating Houston Methodist’s policies) and possibly illegal conduct.”

      Houston Methodist cites Coleman, in which the supreme court held that the
TCPA applied to a defamation claim by a former employee based on statements
between supervisors and an investigator that led to his termination. Coleman, 512
S.W.3d at 901. Coleman involved statements by Coleman’s supervisors in internal
reporting documents and to an investigator that Coleman, a terminal technician,
violated company policy by failing to gauge a tank and then reporting otherwise.
See id. at 897-98.      Coleman sued ExxonMobil and his two supervisors for
defamation, alleging that their statements were untrue. Id. at 897. Although no harm
resulted from Coleman’s alleged failure to gauge the tank, one of the supervisors
offered affidavit testimony that failure to gauge tanks can create serious safety and
environmental risks, endanger employees’ health, and affect ExxonMobil’s
economic interests. Id. at 898. The Texas Supreme Court held that, although the
statements were private and among ExxonMobil employees, they related to a matter
of public concern “because they concerned Coleman’s alleged failure to gauge [a]
tank . . . , a process completed, at least in part, to reduce the potential environmental,



                                            8
health, safety, and economic risks associated with noxious and flammable chemical
overfilling and spilling onto the ground.” Id. at 901.

      In addition to Coleman, the supreme court held in Lippincott that disparaging
remarks by hospital administrators were subject to the TCPA because they
concerned issues related to whether a certified nurse anesthetist properly provided
medical services to patients, and the provision of medical services by a healthcare
professional constitutes a matter of public concern. See Lippincott, 462 S.W.3d at
509-10. The statements in Lippincott included emailed reports that the nurse
anesthetist, Whisenhunt, represented himself to be a doctor, endangered patients for
his own financial gain, and sexually harassed employees. Id. at 509.

      Again, we disagree with Houston Methodist that the statements here at issue
are sufficiently connected to a matter of public concern.          First, “not every
communication related somehow to one of the broad categories set out in section
27.001(7) always regards a matter of public concern.” Creative Oil & Gas, 2019
WL 6971659, at *7.        Moreover, although the Supreme Court of Texas has
“previously held that private communications are sometimes covered by the
TCPA[,] . . . . [t]hese prior cases involved environmental, health, or safety concerns
that had public relevance beyond the pecuniary interests of the private parties
involved.” Id. (citing Coleman, 512 S.W.3d at 898, 901; Lippincott, 462 S.W.3d at
509-10). For this reason, Coleman and Lippincott are distinguishable. Here, unlike
Coleman and Lippincott, there exists no comparable overarching and publicly
relevant environmental, health, or safety concerns. Cf. Creative Oil & Gas, 2019
WL 6971659, at *7 (explaining that a private “dispute affecting only the fortunes of
the private parties involved is simply not a ‘matter of public concern’ under any
tenable understanding of those words”).



                                          9
       Houston Methodist asserts that Lazo’s statements concerned Harvey’s alleged
wrongdoing and related economic or legal risks from Harvey’s alleged conduct. But
there is nothing to show that Harvey’s alleged conduct had any potentially wider
impact on the community as a whole, nor did Lazo’s statements include an allegation
that Harvey violated the law. Houston Methodist suggests that Lazo’s report of
Harvey’s conduct could be construed as involving “potentially criminal” conduct
and cites a Penal Code subsection criminalizing commercial bribery. See Tex. Penal
Code § 32.43(b). Subsection (b) provides:

       A person who is a fiduciary commits an offense if, without the consent
       of his beneficiary, he intentionally or knowingly solicits, accepts, or
       agrees to accept any benefit from another person on agreement or
       understanding that the benefit will influence the conduct of the
       fiduciary in relation to the affairs of his beneficiary.

Id. However, Lazo did not tell his supervisor that he believed Harvey committed
commercial bribery or broke any other law.7 To the extent that Houston Methodist
asserts that Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex.
2018), supports its position, we disagree. There, Adams’s emails alleged that a
homeowner’s association “did not follow city ordinances.” Id. The Supreme Court
of Texas explained, “The allegation that the HOA repeatedly violated the law in
caring for land that is open to the public is a matter of public concern . . . .” Id.
Additionally, the court stated, “[I]n the context of a small residential community like
Normandy Estates, any allegation of malfeasance and criminality by the developer
and the HOA likely concerns the well-being of the community as a whole.” Id.



       7
          For this reason, Houston Methodist’s reliance on rehearing on this court’s opinion in
Deaver v. Desai, 483 S.W.3d 668, 673 (Tex. App.—Houston [14th Dist.] 2015, no pet.), is
misplaced. In Deaver, this court held that statements calling for criminal charges against an
attorney for identity theft related to both economic and community well-being. See id. Here, in
contrast, Lazo did not state that Harvey committed bribery or call for his criminal prosecution.

                                              10
Neither of these concerns are present here, and the facts of this case are more akin
to those in Creative Oil & Gas, as we have explained.

      Houston Methodist has not established that the communications at issue have
any “public relevance beyond the pecuniary interests of the private parties involved.”
See Creative Oil & Gas, 2019 WL 6971659, at *7. In sum, we conclude that
Houston Methodist failed to show that the communications upon which Harvey’s
claims are sufficiently connected to a “matter of public concern,” and thus the action
is not based on, related to, or in response to the exercise of the right of free speech.
Accordingly, Houston Methodist did not establish that the TCPA applies to this
dispute. We overrule Houston Methodist’s first issue. Because of our ruling, the
burden did not shift to Harvey to present prima facie proof of each element of his
claims, so we need not reach Houston Methodist’s second issue. See Tex. R. App.
P. 47.1.

                                     Conclusion

      For the foregoing reasons, we affirm the trial court’s denial of Houston
Methodist’s TCPA motion to dismiss.




                                        /s/    Kevin Jewell
                                               Justice



Panel consists of Justices Wise, Jewell, and Poissant.




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