                                 NO. 12-18-00095-CV

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

 KEANTAE BERRY,                                  §      APPEAL FROM THE 7TH
 APPELLANT

 V.                                              §      JUDICIAL DISTRICT COURT

 ETX SUCCESSOR TYLER, F/K/A
 EAST TEXAS MEDICAL CENTER,                      §      SMITH COUNTY, TEXAS
 APPELLEE

                                 MEMORANDUM OPINION
       Keantae Berry appeals the dismissal of her declaratory judgment action against ETX
Successor Tyler, f/k/a East Texas Medical Center Tyler (ETMC). In two issues, Berry argues the
trial court erred when it granted ETMC’s motion to dismiss her claims under the Texas Citizens
Participation Act (TCPA). We reverse and remand.


                                         BACKGROUND
       In October 2016, Berry sought and received emergency room treatment at ETMC for
injuries sustained in a motor vehicle collision. Because a third party was responsible for the
accident and Berry’s injuries, ETMC filed a lien pursuant to Chapter 55 of the Texas Property
Code to give notice that it asserts a lien on all causes of action or claims pursued by Berry for
damages arising from the motor vehicle collision. The hospital lien did not specify the amount to
which ETMC believes it is entitled; however, the parties agree that ETMC seeks $16,751.50 for
the balance of the emergency room services for which Berry was billed.
       Berry settled her claim with the tortfeasor’s insurance carrier for $30,000. Following the
settlement, Berry sought to negotiate a payoff of the monies owed ETMC. In response to Berry’s
offer to pay $2,000.00, ETMC offered to reduce its emergency room bill to $11,726.05. When the
parties were unable to reach an agreement, Berry filed a declaratory judgment action pursuant to
the Uniform Declaratory Judgments Act (UDJA). 1 Specifically, Berry sought a declaration that
ETMC’s charges exceeded a reasonable and regular rate for the medical services provided and
were not recoverable under Chapter 55 of the property code. ETMC counterclaimed for the
balance of the monies owed under various contractual and equitable theories.
        ETMC also filed a motion to dismiss under the TCPA, alleging the Texas anti-SLAPP 2
statute applies to ETMC’s filing of the hospital lien. In its motion, ETMC asserted that Berry’s
lawsuit was in response to its rights of petition and free speech. The trial court granted the motion
to dismiss and awarded attorney’s fees and costs to ETMC.                      After ETMC nonsuited its
counterclaims against Berry, the motion to dismiss became a final order. This appeal followed.


                                  TEXAS CITIZENS PARTICIPATION ACT
        In two issues, Berry asserts the trial court erred in granting the motion to dismiss.
Specifically, she contends the TCPA does not apply because ETMC’s hospital lien falls under the
“commercial speech” exemption. She further argues that, if the TCPA does apply, she presented
a prima facie case in support of her cause of action against ETMC.
Standard of Review
        We review questions of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d
407, 411 (Tex. 2011). As such, 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 met its respective burden under the TCPA’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. TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.006(a); Campbell v. Clark, 471 S.W.3d 615, 623 (Tex. App.−Dallas 2015, no pet.). We view
the pleadings and evidence in the light most favorable to the nonmovant when determining whether
the TCPA applies. Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.−Houston [1st
Dist.] 2014, no pet.).


        1
            TEX. CIV. PRAC. & REM. CODE ANN. § 37.001 - .011 (West 2015).
        2
           The TCPA is considered an anti-SLAPP statute. Anti-SLAPP stands for “strategic lawsuit against public
participation.” Jennings v. WallBuilder Presentations, Inc., 378 S.W.3d 519, 521 n.1 (Tex. App.—Fort Worth 2012,
pet. denied).


                                                       2
Applicable Law
        The purpose of the TCPA 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 ANN. § 27.002
(West 2015). Although we construe the TCPA liberally “to effectuate its purpose and intent fully,”
it “does not abrogate or lessen any other defense, remedy, immunity, or privilege available under
other constitutional, statutory, case or common law or rule provisions.” Id. § 27.011 (West 2015).
        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. Id. § 27.003;
ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). Under the
first step, a movant seeking dismissal under the TCPA has the burden to show by a preponderance
of the evidence that the nonmovant’s legal action is based on, relates to, or is in response to the
movant’s exercise of the right of free speech, the right to petition, or the right of association. TEX.
CIV. PRAC. & REM. CODE ANN. § 27.005(b). If the movant makes this showing, the burden shifts
to the nonmovant to establish a prima facie case for each essential element of the claim in question.
Id. § 27.005(c). However, the movant may still obtain a dismissal if it establishes each essential
element of a valid defense to the nonmovant’s claim. Id. § 27.005(d). 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.” Id. § 27.006(a) (West 2015).
Applicability of the TCPA
        ETMC contends that Berry’s lawsuit is based on, relates to, and is in response to ETMC’s
filing the hospital lien. As a result, it argues that Berry’s cause of action is based on ETMC’s
exercise of its right to petition and its exercise of its right to free speech.
        The TCPA broadly defines “exercise of the right to petition.” See TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(4). The statutory definition includes “a communication in or pertaining
to . . . a judicial proceeding [or] an official proceeding, other than a judicial proceeding, to
administer the law[.]” Id. § 27.001(4)(A)(i), (ii). “Official proceeding” means “any type of
administrative, executive, legislative, or judicial proceeding that may be conducted before a public
servant.” Id. § 27.001(8). In addition, “exercise of the right to petition” includes “any other




                                                    3
communication that falls within the protection of the right to petition government under the
Constitution of the United States or the constitution of this state.” Id. § 27.001(4)(E).
       The TCPA defines “exercise of the right of free speech” as a communication made in
connection with a matter of public concern. Id. § 27.001(3) (West 2015). A “matter of public
concern” includes an issue related to health or safety; environmental, economic, or community
well-being; the government; a public official or public figure; or a good, product, or service in the
marketplace. Id. § 27.001(7). A “communication” is defined to include “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 TCPA does not discriminate between public and private
communications as long as they are made in connection with a matter of public concern.
Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). The TCPA statutory
analysis is not dictated by traditional First Amendment constitutional limitations. See ExxonMobil
Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (per curiam). Rather, we must apply
the plain meaning of the TCPA as written, absent an ambiguity. See id. (holding court of appeals
erred when it failed to apply the plain meaning of the statute by adding requirements not contained
in TCPA).
       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.
TEX. PROP. CODE ANN. § 55.002(a) (West 2014). The hospital lien statute provides hospitals an
additional method of securing payment from accident victims, encouraging their prompt and
adequate treatment. McAllen Hosps., L.P. v. State Farm Cty. Mut. Ins. Co. of Tex., 433 S.W.3d
535, 537 (Tex. 2014). Subject to certain conditions, a hospital has a lien on the cause of action of
a patient “who receives hospital services for injuries caused by an accident that is attributed to the
negligence of another person.” Id.; TEX. PROP. CODE ANN. § 55.002(a) (West 2014). The lien
attaches to the patient’s cause of action against the third party, a trial court’s judgment or public
agency’s decision in a proceeding brought by the patient, and the proceeds of a settlement of the
patient’s cause of action. TEX. PROP. CODE ANN. § 55.003(a) (West 2014). To secure the lien, the
hospital must provide notice to the injured individual and file written notice of the lien with the
county clerk of the county in which the services were provided. Id. § 55.005 (West 2014).
       ETMC’s filing of written notice of the hospital lien fits within the definition of
communication. See TEX. CIV. PRAC. & REM. CODE § 27.001(1). The lien, as an attempt to obtain



                                                  4
payment for medical services, relates to health. See TEX. PROP. CODE ANN. § 55.002. The
provision of medical services by a health care professional constitutes a matter of public concern.
Lippincott, 462 S.W.3d at 510. Further, the statute’s purpose in obtaining treatment for accident
victims affects community well-being. See McAllen Hosps., L.P., 433 S.W.3d at 538; see also
Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 309 (Tex. 1985). Accordingly, ETMC’s
filing of the hospital lien was an exercise of its right to free speech. Berry’s declaratory judgment
action, in which she seeks a declaration that the emergency room charges were not reasonable
under the hospital lien statute, is in response to ETMC’s exercise of its right of free speech. 3
Commercial Speech Exemption
        Berry argues that her declaratory judgment action is exempt from a TCPA analysis due to
the application of 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b) (West 2015). 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.).
        The Texas Supreme Court recently clarified the scope of the commercial speech
exemption. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 687-89 (Tex. 2018). The
exemption applies “when (1) the defendant was primarily engaged in the business of selling or
leasing goods [or services], (2) the defendant made the statement or engaged in the conduct on
which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services,
(3) the statement or conduct at issue arose out of a commercial transaction involving the kind of
goods or services the defendant provides, and (4) the intended audience of the statement or conduct
were actual or potential customers of the defendant for the kind of goods or services the defendant
provides.” Id. at 688.
        ETMC contends the exemption does not apply because 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


        3
         Because ETMC met its burden to show Berry’s suit is in response to the exercise of the right of free speech,
we need not address whether ETMC’s exercise of the right to petition has been implicated. See TEX. R. APP. P. 47.1.


                                                         5
purpose. ETMC does not contend that it does not charge for its services. As demonstrated by its
lien filing, attempting to have Berry’s declaratory judgment action dismissed, and countersuing to
recover the balance of the emergency room bill, ETMC wants to be paid.
       The business of selling or leasing goods or services and the business of treating sick and
injured people are not mutually exclusive activities. ETMC filed the hospital lien in its capacity
as a seller of health services and the lien arose out of a commercial transaction involving ETMC’s
health services. 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 Berry
was not the intended audience of the lien. ETMC argues that the intended audience of the hospital
lien is the third-party tortfeasor, and the public in general, instead of Berry. Berry argues that she
is the intended audience and points to ETMC’s counterclaim seeking satisfaction of the lien from
her settlement proceeds in support of her position. We agree with Berry. The lien attaches to the
personal injury lawsuit Berry had against the person who caused her injuries, the judgment arising
out of that lawsuit, or the proceeds of a settlement of her cause of action. See TEX. PROP. CODE
ANN. § 55.003(a).
       The lien is “part and parcel” of the underlying claim and only exists because of the claim.
Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 411 (Tex. 2007).
“As a chose in action is the intangible personal property of the claimant, a lien against such
property is necessarily a claim against its owner.” Id. The only support for a hospital lien is its
claim for reimbursement from the patient because the hospital lacks tort and contract rights against
a third-party tortfeasor. Id. Therefore, “a lien against a patient’s tort recovery is just as much a
claim against the patient as if it were filed against the patient’s house, car, or bank account.” Id.
The only true support for a hospital lien is via a claim for reimbursement from Berry, and a claim
against Berry’s settlement proceeds is necessarily a claim against her. See id. Therefore, we can
only conclude that the intended audience of the hospital lien includes Berry, and consequently, the
commercial speech exemption applies to ETMC’s conduct. East Tex. Med. Ctr. v. Hernandez,
No. 12-17-00333-CV, 2018 WL 2440508, at *4 (Tex. App.—Tyler May 31, 2018, pet. denied)
(mem. op.); see also Castleman, 546 S.W.3d at 688; TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.010(b).




                                                   6
          In summary, 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 Berry, who was an
intended audience of the lien. See Castleman, 546 S.W.3d at 688. We conclude that the
commercial speech exemption applies here, and Berry’s declaratory judgment action is exempt
from application of the TCPA’s dismissal scheme. Therefore, the trial court erred in granting
ETMC’s motion to dismiss.
Prima Facie Case
          We further conclude, even assuming the commercial speech exemption does not apply,
Berry established by clear and specific evidence a prima facie case for each essential element of
her claim.
          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. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). “Clear” means
unambiguous, sure or free from doubt, and “specific” means explicit or relating to a particular
named thing. S & S Emerg. Training Solutions, Inc. v. Elliott, No. 17-0628, 2018 WL 6711322,
at *3 (Tex. Dec. 21, 2018). “Prima facie case” as used in the statute means evidence that is legally
sufficient to establish a claim as factually true if it is not countered. Id.   It is “the minimum
quantum of evidence necessary to support a rational inference that the allegation of fact is true.”
In re Lipsky, 460 S.W.3d 579, 590-91 (Tex. 2015) (orig. proceeding). The “clear and specific
evidence” requirement does not impose an elevated evidentiary standard, nor does it categorically
reject circumstantial evidence. Id. at 591. But it requires more than mere notice pleading. Id. at
590-91. Instead, a plaintiff must provide enough detail to show the factual basis for its claim. Id.
at 590.
          ETMC argues that because Berry seeks a declaration that ETMC’s charges exceed the
reasonable and regular rate for the services provided, she must prove the charges exceed the
reasonable and regular rate. We disagree. For purposes of determining whether Berry established
by clear and specific evidence a prima facie case for each essential element of her declaratory




                                                  7
judgment action in the context of ETMC’s motion to dismiss, the reasonableness of the lien amount
is not the issue Berry must address. 4
         Berry filed a declaratory judgment action under the UDJA. 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. TEX. CIV. PRAC. & REM. CODE
ANN. § 37.002(b). A person whose rights are affected by a statute may have determined any
question of construction or validity arising under the statute and obtain a declaration of rights,
status, or other legal relations under the statute. Id. § 37.004(a). Thus, a declaratory judgment is
appropriate when a justiciable controversy exists concerning the rights and status of the parties
and the controversy will be resolved by the declaration sought. Bonham State Bank v. Beadle,
907 S.W.2d 465, 467 (Tex. 1995). A justiciable controversy is one in which a real and substantial
controversy exists involving a genuine conflict of tangible interest and not merely a theoretical
dispute. Id.
         Therefore, we evaluate the pleadings and evidence adduced in connection with ETMC’s
motion to dismiss to determine whether Berry established a prima facie case by clear and specific
evidence that (1) a justiciable controversy exists as to the rights and status of the parties under the
hospital lien statute and (2) the controversy will be resolved by the declaration sought. See Perez
v. Quintanilla, No. 13-17-00143-CV, 2018 WL 6219627, at *4 (Tex. App.−Corpus Christi Nov.
29, 2018, no pet.) (mem. op.); Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194, 201 (Tex.
App.−Houston [1st Dist.] 2017, no pet.); Cosmopolitan Condo. Owners Ass’n v. Class A Inv’rs
Post Oak, LP, No. 01-16-00769-CV, 2017 WL 1520448, at *4 (Tex. App.−Houston [1st Dist.]
April 27, 2017, pet. denied) (mem. op.).
         In her action, Berry seeks a declaration that ETMC’s charges, and the amount of the lien,
exceeds the reasonable and regular rate for the same or similar services. She alleges that ETMC’s
charges are inconsistent with what it would have accepted for the same service from Medicare,

         4
           In light of our recent opinion in ETMC v. Pridgeon, No. 12-18-00083-CV, 2019 WL 623603 (Tex. App.—
Tyler Feb. 14, 2019, no pet. h.), our analysis of the requirement to prove a prima facie case here differs from our
analysis of this issue in E. Tex. Med. Ctr. v. Hernandez, No. 12-17-00333-CV, 2018 WL 2440508 (Tex. App.–Tyler
May 31, 2018, pet. denied) (mem. op.). In Pridgeon, we addressed Pridgeon’s assertion that she sought a declaration
of nonliability for the excessive portion of ETMC’s bill and her burden was to show a justiciable controversy that will
be resolved by the declaration sought. Pridgeon, 2019 WL 623603, at *3 n.4. This argument was not raised
in Hernandez, nor is it raised in the present case. Nevertheless, we will read both cases together when analyzing
whether Berry established by clear and specific evidence a prima facie case for each essential element of her claim.


                                                          8
Medicaid, or a private health insurer. As a result, she contends the charges are not reasonable and,
therefore, not recoverable under Texas Property Code Section 55.004(d)(1) which limits the
amount of a hospital lien to the “reasonable and regular rate for the services.”
       Considering the pleadings in the light most favorable to Berry, it is a request for the court
to construe the hospital lien statute and determine whether or not the statute requires the amount
of a lien to be limited to a reasonable and regular rate for the services rendered. In doing so, she
is requesting the court determine the valid amount of ETMC’s lien and find that payment of that
amount will completely extinguish the debt covered by the lien. Thus, in her declaratory judgment
action Berry sought 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.
       While a mere difference of opinion does not create a justiciable controversy, under the
circumstances of this case, what the statute allows the lien to attach to is 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).
       ETMC’s argument that it is Berry’s burden to prove that the lien amount exceeds the
reasonable and regular rate for the services provided is misplaced. 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. TEX. CIV. PRAC. & REM. CODE ANN. § 37.007. If, upon
hearing the merits of Berry’s declaratory judgment action, the trial court undertakes a
determination as to what constitutes reasonable and regular charges for the services provided, the
burden to prove what is reasonable will not be on Berry. The burden of proof in a declaratory
judgment action is on the party asserting an affirmative claim and who in the absence of evidence



                                                   9
will be defeated. Berthelot v. Brinkmann, 322 S.W.3d 365, 369 (Tex. App.−Dallas 2010, pet.
denied). Berry, who is seeking a declaration of nonliability as to a portion of the bill, does not
have the burden to prove the amount of the bill. See McCart v. Cain, 416 S.W.2d 463, 466 (Tex.
Civ. App.−Fort Worth 1967, writ ref’d n.r.e.).
       Furthermore, ETMC brought a counterclaim against Berry. 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 Texas Property Code allows reimbursement of
a reasonable and regular rate). Whether there is, or is not, a requirement that the amount owed is
reasonable, in the absence of proof of the amount owed, ETMC cannot recover. Thus, Berry
established a prima facie case as to the first element of her declaratory judgment action. See
Dolcefino, 540 S.W.3d at 201.
       As to the second element, ETMC does not argue that, if a justiciable controversy exists,
the requested declaratory judgment will not resolve it. A determination of the correct interpretation
and application of the hospital lien statute will resolve the parties’ dispute as to the amount owed
and covered under the lien. See Allstate Indem. Co., 437 S.W.3d at 575-76. Specifically, Berry
will know if she is responsible for the full amount of the emergency room bill or some lesser
amount. The lien will only attach to the amount found to be reasonable and when paid, the lien
will be extinguished. We conclude that Berry met her burden to show that the controversy would
be resolved by the declarations sought. See Dolcefino, 540 S.W.3d at 201.
       Even if Berry was required to present clear and specific evidence that charges on her
emergency room bill were unreasonable to avoid dismissal, she did so in this case. The hospital
lien statute allows the hospital to recover the full amount of the lien, subject only to the right to
question the reasonableness of the charges comprising the lien. In re N. Cypress Med. Ctr.
Operating Co., Ltd., No. 16–0851, 2018 WL 1974376, at *2 (Tex. April 27, 2018) (orig.
proceeding, not yet released for publication). As the Texas Supreme Court has noted, a “two-
tiered” healthcare billing structure has evolved over the last several decades. Id. at *3. These tiers
encompass “list” or “full” rates, which are sometimes charged to uninsured patients yet frequently
uncollected, and “reimbursement rates” for patients covered by government and private insurance.



                                                 10
Id. Because a valid hospital lien may not secure charges that exceed a reasonable and regular rate,
the issue involves what constitutes a reasonable and regular rate. Id. at *4. And because of the
evolution of list prices, the charges themselves are not dispositive of what is reasonable,
irrespective of whether the patient being charged has insurance. Id. This fact makes the amounts
a hospital accepts as payment from other patients, including those covered by private insurance
and government benefits, relevant to whether the charges encompassed in a hospital lien are
reasonable. Id. at *7.
       In response to ETMC’s motion to dismiss, Berry did not present any affidavits. However,
attached to her petition was ETMC’s bill which itemized the emergency room services provided
to Berry and the charges for those services. As an attachment to the petition, the itemized bill was
part of the pleadings which we review. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a); Campbell
v. Clark, 471 S.W.3d 615, 623 (Tex. App.−Dallas 2015, no pet.). We view the pleadings and
evidence in the light most favorable to the nonmovant when determining whether the TCPA
applies. Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214 (Tex. App.−Houston [1st Dist.]
2014, no pet.).
       The charges listed on ETMC’s bill total $16,911.50 which shows no adjustments other than
a payment of $160. However, the bill reflects three separate identical charges on the same date
for a cervical collar. Regardless of what represents a reasonable charge for a cervical collar, it
would not be reasonable for there to be duplicate billing for the same medical device or equipment.
Though ETMC presents alternative explanations for the multiple entries on the bill, the trial court’s
role is not to act as a factfinder and to resolve opposing reasonable inferences in determining
whether the plaintiff satisfies the prima facie proof requirement. See Dallas Morning News, Inc.
v. Hall, 524 S.W.3d 369, 378 (Tex. App.—Fort Worth 2017, pet granted). Instead, the court
determines whether the nonmovant met his burden to produce evidence sufficient to present a
prima facie case as required by the TCPA, some of which may include relevant evidence from
which more than one reasonable inference may be drawn. See id. The apparent duplicate entries
are evident on the face of the bill and need no further explanation to satisfy the statute’s evidentiary
burden. See Serafine v. Blunt, 466 S.W.3d 360 (Tex. App.—Austin 2015, no pet.) (TCPA does
not require testimony or other evidence to satisfy evidentiary burden).
       Under these circumstances, we conclude the itemized bill attached to Berry’s petition
presented the minimum quantum of evidence necessary to support a rational inference that at least



                                                  11
some of the charges for services provided to Berry were improperly duplicated and represents clear
and specific evidence of a prima facie case that ETMC’s charges exceed the reasonable and regular
rates in violation of the Texas Property Code.                   See TEX. CIV. PRAC. & REM. CODE ANN.
§ 27.005(c); see also Lipsky, 460 S.W.3d at 590–91.
Affirmative Defense
         We also address ETMC’s assertion that, even if Berry presented a prima facie case, it is
still entitled to dismissal because it proved the affirmative defenses of quasi-estoppel and estoppel
by contract. 5 Assuming the commercial speech exemption did not apply, ETMC would have been
entitled to dismissal of Berry’s suit if ETMC established a valid defense to her claim by a
preponderance of the evidence. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).
         Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right
inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22
S.W.3d 857, 864 (Tex. 2000). The doctrine applies when it would be unconscionable to allow a
person to maintain a position inconsistent with one to which she acquiesced, or from which she
accepted a benefit. Sampson Exploration, LLC v. T.S. Reed Props., Inc., 521 S.W.3d 766, 778
(Tex. 2017).         According to ETMC, Berry’s declaratory judgment action disputing the
reasonableness of the emergency room medical bill is inconsistent with the position she took while
negotiating her $30,000 settlement with the tortfeasor’s insurance carrier. ETMC asserts that
Berry relied on the full amount of the ETMC emergency room bill to maximize her recovery from
the tortfeasor and is now claiming those charges are excessive when it is time to pay that bill.
         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 asserts that
it proved estoppel by contract because Berry contractually assigned all money due to her pursuant
to the settlement up to the total amount of her ETMC account and is now barred from contesting
the amount of those charges which she used to obtain her settlement.
         ETMC’s reliance on both these affirmative defenses is misplaced. As explained above,
Berry’s claim in this case is a request for construction of the hospital lien statute. Quasi-estoppel


         5
          Contrary to ETMC’s argument that Berry waived her right to appellate review of the affirmative defense of
estoppel by contract, a liberal view of her briefing reflects estoppel by contract, as a subsidiary of quasi-estoppel, was
adequately addressed in her initial briefing. See TEX. R. APP. P. 38.1(F); Nabors Well Service, Ltd. v. Romero, 508
S.W.3d 512, 528 (Tex. App.—El Paso 2016, pet. denied).


                                                           12
and estoppel by contract do not address whether there is a justiciable controversy or whether a
justiciable controversy will be resolved by the declaratory judgment suit. The defenses ETMC
asserts address the amount of the hospital lien as it pertains to the reasonableness of the charges, a
question not at issue here.
       Berry assigned her right to payments of any proceeds, including settlement proceeds, to
ETMC before receiving treatment. She submitted charges for the medical services received at
ETMC to the tortfeasor’s insurance carrier as part of her damages claim. However, the record is
devoid of evidence as to what was submitted to the carrier and the elements and amounts which
comprised Berry’s damages model. ETMC was not a party to the settlement, and, even if it were,
settlement negotiations are inadmissible to prove or disprove the amount or validity of a disputed
claim. See TEX. R. EVID. 408. However, we note that the settlement negotiations may be
admissible in the limited context of demonstrating Berry’s reliance on the bill for the purposes of
quasi-estoppel. But to assume that ETMC’s emergency room bill was the only evidence of
damages submitted to the tortfeasor’s carrier and formed the entire basis of Berry’s settlement is
shortsighted and unrealistic. Because ETMC failed to demonstrate that Berry maintained a
position inconsistent with one to which she acquiesced, or from which she accepted a benefit,
ETMC failed to establish its affirmative defense of quasi-estoppel or estoppel by contract by a
preponderance of the evidence. See id.; see also TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).
Conclusion
       Because filing the hospital lien is an exercise of free speech and Berry’s declaratory
judgment suit was a response to the lien, the TCPA applies. However, Berry’s suit is exempt from
the TCPA’s dismissal provisions due to application of the commercial speech exemption.
Additionally, Berry avoids dismissal because she met her burden to prove her prima facie case and
ETMC did not raise any viable affirmative defenses to Berry’s declaratory judgment suit. For all
the above reasons, we conclude that the trial court erred in granting ETMC’s motion to dismiss.
We sustain Berry’s two issues.


                                            DISPOSITION
       Having sustained Berry’s two issues, we reverse the trial court’s order granting ETMC’s
motion to dismiss and awarding attorney’s fees and remand this case to the trial court for further
proceedings consistent with this opinion.



                                                 13
                                                               GREG NEELEY
                                                                  Justice



Opinion delivered February 28, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                         14
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                            JUDGMENT

                                         FEBRUARY 28, 2019


                                          NO. 12-18-00095-CV


                                     KEANTAE BERRY,
                                         Appellant
                                            V.
                                ETX SUCCESSOR TYLER, F/K/A
                               EAST TEXAS MEDICAL CENTER,
                                         Appellee


                                  Appeal from the 7th District Court
                          of Smith County, Texas (Tr.Ct.No. 17-2059-A)

                       THIS CAUSE came to be heard on the oral arguments, appellate record and
the briefs filed herein, and the same being considered, because it is the opinion of this court that
there was error in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED
by this court that the judgment be reversed and the cause remanded to the trial court for further
proceedings and that all costs of this appeal are hereby adjudged against the Appellee, ETX
SUCCESSOR TYLER, F/K/A EAST TEXAS MEDICAL CENTER, in accordance with the
opinion of this court; and that this decision be certified to the court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J..
