          NUMBERS 13-19-00461-CV AND 13-19-00462-CV

                             COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI – EDINBURG


             IN RE FRAUDULENT HOSPITAL LIEN LITIGATION


                    On appeal from the 444th District Court
                         of Cameron County, Texas.


                           MEMORANDUM OPINION

   Before Chief Justice Contreras and Justices Longoria and Perkes
               Memorandum Opinion by Justice Perkes

       In cause number 13-19-00461-CV, appellant MedData, Inc. (MedData) appeals

the trial court’s order denying its motion to dismiss under the Texas Citizens Participation

Act (TCPA). See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011. In cause number

13-19-00462-CV, appellants Douglas Turek and Russ DeVore likewise appeal the trial

court’s order denying their motion to dismiss under the TCPA. See id. These appeals

arise from a multidistrict litigation (MDL) proceeding regarding claims that medical liens

filed pursuant to the Texas Property Code were fraudulent. See TEX. PROP. CODE ANN.
§§ 55.001–.008 (governing hospital and emergency medical services liens). Because the

matters in both appeals are related, we issue this single memorandum opinion addressing

both appellate causes in the interest of judicial efficiency. We affirm the trial court’s orders

in 13-19-00461-CV and 13-19-00462-CV.

                                       I. BACKGROUND

       In the MDL proceeding, the plaintiffs are former emergency room patients who

assert that they were injured in accidents caused by the negligence of third parties. They

allege that the defendants filed fraudulent hospital liens to collect payment for the medical

services provided to them. See TEX. CIV. PRAC. & REM. CODE ANN. § 12.002 (providing for

civil liability related to “a fraudulent court record or a fraudulent lien or claim against real

or personal property or an interest in real or personal property”).

       Appellee Martha Hernandez originally filed suit against McAllen Hospitals, L.P.

d/b/a McAllen Medical Center and Alegis Revenue Group, LLC (Alegis) in cause number

C-1621-15-J in the 430th District Court of Hidalgo County, Texas. Her case was

transferred into MDL Docket No. 15-0360, styled In re Fraudulent Hospital Lien Litigation,

pending in the 444th District Court of Hidalgo County, Texas. See TEX. GOV'T CODE ANN.

§ 74.162 (providing for the transfer of “civil actions involving one or more common

questions of fact” pending in the same or different courts “to any district court for

consolidated or coordinated pretrial proceedings, including summary judgment or other

dispositive motions, but not for trial on the merits”). After the transfer, Hernandez filed a

“Plaintiff’s First Amended CPRC Chapter 12 Petition Emergency Room Only.” This

amended petition included claims against McAllen Hospitals, L.P. d/b/a McAllen Medical

Center; MedData d/b/a Alegis; UHS of Delaware, Inc. d/b/a Universal Health Services of



                                               2
Delaware, Inc. (UHS); and Douglas Turek and Russ DeVore, formerly doing business as

Turek DeVore, P.C. (Turek DeVore).

       MedData thereafter filed “Defendant MedData d/b/a [Alegis’s] Anti-Slapp Motion to

Dismiss Pursuant to CPRC § 27.003.” This motion clarifies that MedData is the

successor-in-interest to Alegis, which handled the hospital lien notices related to

Hernandez, and that “MedData” refers collectively to both Alegis and MedData. MedData

asserted that the TCPA applies in this case because Hernandez’s claims implicate the

right to petition and the right to free speech; that Hernandez cannot present prima facie

evidence to support each element of her claims; and that, even if she could, relevant

statutes of limitations bar Hernandez’s claims.

       Similarly, at this point in the litigation, Turek DeVore and Russ DeVore filed a

motion to dismiss Hernandez’s claims under the TCPA. Like MedData, they asserted that

the TCPA applies in this case because Hernandez’s claims implicate the right to petition

and the right to free speech; that Hernandez cannot present prima facie evidence to

support each element of her claims; and that the relevant statutes of limitations bar

Hernandez’s claims.

       Thereafter, Hernandez filed her “Plaintiff’s Verified Second Amended CPRC

Chapter 12 Petition Emergency Room Only and Request for Declaratory Relief.” This was

the live pleading at the time that the trial court ruled on the motions to dismiss. Hernandez

filed this pleading against the same defendants as in her earlier pleadings, although

Hernandez identified MedData as “MedData d/b/a Alegis Revenue Group, LLC.” Here,

Hernandez alleged that McAllen Hospitals, L.P. and UHS own and operate McAllen

Medical Center; however, the emergency department at McAllen Medical Center is under

lease and contract with a third party which has the “ultimate control” over the emergency

                                             3
department and “all decisions concerning the operation within the emergency department

are made by [that] third party.”

        Hernandez alleged that, after an automobile accident on April 12, 2013, she

presented herself to the emergency department at McAllen Medical Center at 6:46 p.m.,

received an outpatient EMTALA 1 medical screening, and left the emergency department

at 10:51 p.m. She was treated for pharyngitis (unrelated to the motor vehicle accident)

and was provided with stitches for a laceration to her right upper eyelid. She was billed

$17,866.00 for the services she was provided. She alleged that she was not admitted to

the hospital. See TEX. PROP. CODE ANN. § 55.002(a) (“For the lien to attach, the individual

must be admitted to a hospital not later than 72 hours after the accident.”). She further

asserted:

        Knowing Plaintiff was not admitted to the hospital, Defendants, intending to
        cause financial injury, unlawfully filed a hospital lien against Plaintiff on or
        about May 21, 2013. As a common fraudulent business practice of
        Defendants herein, Defendants used an invalid hospital lien to fraudulently
        collect more from this former Emergency-Room-Only patient (outpatient)
        than the “reasonable and regular rate” legally allowed to be collected under
        Chapter 55 of the Texas Property Code.

        ....

        Based upon information and belief, Defendants UHS of Delaware, Inc.,
        McAllen Hospitals, L.P., Alegis Revenue Group, L.L.C., Douglas Turek,
        Individually, and Russ DeVore, Individually, who formerly did business as
        Turek DeVore, P.C., [No Longer in existence] and Meridian Revenue
        Solutions, LLC, Alegis Revenue Group, LLC [Now MedData] and d/b/a
        Cardon Collection Services, LLC, entered into a certain written agreement
        dated May 1st, 2008 [the Universal Health Services, Inc. System Service
        Agreement] for the purpose of defrauding accident victims only receiving
        EMTALA medical screenings in the emergency department operated by a
        third party not a party to this litigation, who were not admitted to a hospital[,]
        seeking to extort and collect unreasonable hospital charges from the


        1 “EMTALA is a federal law enacted in 1986 to prevent “patient dumping”—that is, the practice of
refusing to treat patients who are unable to pay.” Tenet Hosps. Ltd. v. Boada, 304 S.W.3d 528, 533 (Tex.
App.—El Paso 2009, pet. denied) (discussing the Emergency Medical Treatment and Labor Act).

                                                   4
        patients’ potential third party personal injury claims by fraudulently filing
        hospital liens in violation of Chapter 55 of the Texas Property Code hospital
        admission and rate limitation requirements. The agreement was modified in
        May of 2013, and both agreements provided an incentive [a percentage of
        collections per file] for Alegis Revenue Group, LLC [Now MedData] and
        Turek DeVore, P.C.’s shareholders, Douglas Turek and Russ DeVore, and
        each Defendant named herein, to reap unlawful profits for their personal
        use and gain as a result of their actual fraud, dishonesty of purpose and
        intent to deceive accident victims which were committed against accident
        victims like Plaintiff Hernandez herein. These Defendants sought to
        aggressively and wrongfully engage in fraudulent collection activities by,
        among other things, fraudulently filing hospital liens for emergency room
        EMTALA screening services only in violation of Chapter 55 of the Texas
        Property Code and filing fraudulent hospital liens in violation of the rate
        limitations of Chapter 55 in order to collect sums of money for EMTALA
        medical screening services that the hospitals were not legally entitled to
        collect as the amount the hospital charged exceeded the reasonable and
        regular rate limitation of Chapter 55. Additionally, the hospital liens at issue
        are fraudulent for the reasons that each Defendant conspired with the other
        and knew the charges sought for collection dramatically exceeded the rate
        limitations of Chapter 55 of the Texas Property Code . . . .

Hernandez sought declaratory relief and alleged that the appellants violated Chapter 55

of the Texas Property Code 2 and Chapter 12 of the Texas Civil Practice and Remedies

Code by fraudulently filing a hospital lien when Hernandez was not admitted to the

hospital within 72 hours after the accident and because the amount of the lien was in

excess of the rate limitation provided by the statute. She further argued: (1) the appellants

made, presented, or used a document with knowledge that it was a fraudulent lien; (2) the


        2 Hernandez’s claims regarding the invalidity of the lien rely, in part, on § 55.002(a) of the Texas

Property Code. See TEX. PROP. CODE ANN. § 55.002(a). According to this section:

        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. For the lien to attach, the individual must be admitted to a hospital not later than
        72 hours after the accident.

Id. Parts of Chapter 55 of the property code were amended effective June 10, 2019, after the inception of
Hernandez’s lawsuit. Among other changes, the Legislature added § 55.0015, which states that “[f]or
purposes of this chapter, an injured individual is considered admitted to a hospital if the individual is allowed
access to any department of the hospital for the provision of any treatment, care, or service to the
individual.” Id. § 55.0015. We express no opinion regarding the application of this revision, and we need
not further address it here.

                                                       5
appellants intended that the document be given legal effect; and (3) the appellants

intended to cause her financial and economic injury.

      Turek and DeVore subsequently filed an amended motion to dismiss under the

TCPA reiterating and expanding on the allegations previously made in their original

motion to dismiss. Their amended motion included the affidavits of Turek and Wendy

Schloenfeld, an employee of MedData.

      On August 5, 2019, the trial court heard argument on the appellants’ motions to

dismiss. On August 30, 2019, the trial court denied the motions to dismiss. These appeals

ensued. In cause number 13-19-00461-CV, MedData raises the following issues:

      A.     Hernandez’s action challenges MedData’s filing of a lien notice on
             behalf of a hospital, a public statement relating to a matter of public
             concern that must be filed before petitioning a court for relief under
             the Hospital Lien Statute. Does the TCPA apply to this lawsuit?

      B.     The TCPA’s commercial speech exemption applies only to a
             defendant’s statement about its own goods or services made to its
             own actual or potential customers rather than to the public at large.
             MedData’s notice concerned a third-party hospital’s goods or
             services and was not made to MedData’s customer, but to the public
             at large. Does MedData’s notice fall outside the scope of the
             commercial speech exemption?

      C.     The TCPA’s bodily injury exemption applies only to legal actions
             seeking recovery for bodily injury or statements regarding such
             actions. MedData’s notice was neither a legal action seeking
             recovery for bodily injury nor a statement regarding such an action.
             Does MedData’s notice fall outside the scope of the personal injury
             exemption?

      D.     The statute of limitations for a fraudulent lien claim is four years.
             MedData filed its notice of lien on May 21, 2013, well over four years
             ago, and long before Hernandez re-filed her claims against
             MedData. Has MedData established the affirmative defense of
             limitations under the TCPA such that dismissal is required?

      E.     A fraudulent lien claim requires proof that the lien in question was
             fraudulent. Hernandez produced no evidence that the hospital lien
             MedData noticed was fraudulent. Has she failed to produce “clear

                                            6
                 and specific” evidence to support her claim, as needed to survive a
                 motion to dismiss under the TCPA?

        In cause number 13-19-00462-CV, Turek and DeVore raise one issue asserting

that the trial court erred by denying their motion to dismiss when Hernandez’s case “arises

from an allegedly fraudulent hospital lien filed against [Hernandez’s] personal injury claim

as a result of an automobile accident where appellants are attorneys who represent

entities that file such liens.” Turek and DeVore’s arguments under this issue, which we

will term as sub-issues, mirror the issues raised by MedData in its appeal. Specifically,

Turek and DeVore assert that: (1) the TCPA applies to Hernandez’s claims; (2) the

commercial speech and bodily injury exemptions do not apply; (3) the statute of limitations

bars Hernandez’s claims; and (4) Hernandez failed to make a prima facie case for her

claims.

                                               II. THE TCPA

        The TCPA is codified in Chapter 27 of the Civil Practice and Remedies Code,

which is titled, “Actions Involving the Exercise of Certain Constitutional Rights.” See TEX.

CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011; Buckingham Senior Living Cmty., Inc. v.

Washington, No. 01-19-00374-CV, 2020 WL 2988368, at *2–5, __ S.W.3d __, at __ (Tex.

App.—Houston [1st Dist.] June 4, 2020, no pet. h.). 3 The purpose of the TCPA is to

“encourage and safeguard the constitutional rights of persons to petition, speak freely,



        3   Hernandez filed this action prior to September 1, 2019, the date upon which the recent
amendments to the TCPA went into effect. The prior, pre-amendment version of the TCPA therefore applies
to Hernandez’s claims and this appeal. See Act of May 20, 2019, 86th Leg., R.S., §§ 11–12, 2019 Tex.
Sess. Law Serv. 684, 687 (“Chapter 27, Civil Practice and Remedies Code, as amended by this Act, applies
only to an action filed on or after the effective date of this Act. An action filed before the effective date of
this Act is governed by the law in effect immediately before that date, and that law is continued in effect for
that purpose. . . . This Act takes effect September 1, 2019.”). All of our citations and analyses are to the
TCPA as it existed prior to September 1, 2019, unless otherwise noted. Nothing in this opinion should be
read to express an opinion regarding the proper construction or application of any amended provision of
the TCPA.

                                                       7
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; see State

ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018). Stated otherwise, the TCPA’s

purpose is to protect “citizens who petition or speak on matters of public concern from

retaliatory lawsuits that seek to intimidate or silence them.” In re Lipsky, 460 S.W.3d 579,

584 (Tex. 2015) (orig. proceeding). We construe the act “liberally to effectuate its purpose

and intent fully.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.011(b); see State ex rel. Best,

562 S.W.3d at 11.

       The TCPA achieves its purpose by creating a “set of procedural mechanisms

through which a litigant may require, by motion, a threshold testing of the merits of legal

proceedings or filings that are deemed to implicate the expressive interests protected by

the statute, with the remedies of expedited dismissal, cost-shifting, and sanctions for any

found wanting.” Serafine v. Blunt, 466 S.W.3d 352, 369 (Tex. App.—Austin 2015, no pet.)

(Pemberton, J., concurring); see Buckingham Senior Living Cmty., Inc., 2020 WL

2988368, at *2–5, __ S.W.3d at __ (discussing TEX. CIV. PRAC. & REM. CODE ANN.

§§ 27.003–.005, .009). A party may appeal from an interlocutory order that denies the

party’s TCPA motion to dismiss. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(12);

In re Geomet Recycling LLC, 578 S.W.3d 82, 86 (Tex. 2019) (orig. proceeding).

A.     TCPA’s Statutory Scheme

       The applicable version of § 27.003 of the TCPA provides that a party may file a

motion to dismiss a legal action that “is based on, relates to, or is in response to a party’s

exercise of one of the right of free speech, right to petition, or right of association or arises

from any act of that party in furtherance of the party’s communication or conduct” as

                                               8
described by the act. TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a). The act defines

“[l]egal action” as “a lawsuit, cause of action, petition, complaint, cross-claim, or

counterclaim or any other judicial pleading or filing that requests legal or equitable relief.”

Id. § 27.001(6). The act also defines the three sets of rights protected by TCPA summary-

dismissal procedures.

       This appeal concerns both the right of free speech and the right to petition. The

act states that the exercise of the right of free speech “means a communication made in

connection with a matter of public concern.” Id. § 27.001(3). The act’s definition of the

“exercise of the right to petition” is far more extensive:

       “Exercise of the right to petition” means any of the following:

       (A)    a communication in or pertaining to:

              (i)      a judicial proceeding;

              (ii)     an official proceeding, other than a judicial proceeding, to
                       administer the law;

              (iii)    an executive or other proceeding before a department of the
                       state or federal government or a subdivision of the state or
                       federal government;

              (iv)     a legislative proceeding, including a proceeding of a
                       legislative committee;

              (v)      a proceeding before an entity that requires by rule that public
                       notice be given before proceedings of that entity;

              (vi)     a proceeding in or before a managing board of an educational
                       or eleemosynary institution supported directly or indirectly
                       from public revenue;

              (vii)    a proceeding of the governing body of any political subdivision
                       of this state;

              (viii)   a report of or debate and statements made in a proceeding
                       described by Subparagraph (iii), (iv), (v), (vi), or (vii); or


                                                9
              (ix)   a public meeting dealing with a public purpose, including
                     statements and discussions at the meeting or other matters of
                     public concern occurring at the meeting;

       (B)    a communication in connection with an issue under consideration or
              review by a legislative, executive, judicial, or other governmental
              body or in another governmental or official proceeding;

       (C)    a communication 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;

       (D)    a communication reasonably likely to enlist public participation in an
              effort to effect consideration of an issue by a legislative, executive,
              judicial, or other governmental body or in another governmental or
              official proceeding; and

       (E)    any other 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).

B.     TCPA’s Shifting Burden of Proof

       The statutory scheme includes a “zig-zagging” burden of proof. Tex. Custom Wine

Works, LLC v. Talcott, 598 S.W.3d 380, 383 (Tex. App.—Amarillo 2020, no pet.). A

movant under the TCPA has the initial burden to show by a preponderance of the

evidence that the nonmovant has asserted a “legal action” that is based on, relates to, or

is in response to the movant’s exercise of one of the three rights delineated in the TCPA,

the right of free speech, the right to petition, or the right of association. TEX. CIV. PRAC. &

REM. CODE ANN. § 27.005(b); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018);

Kawcak v. Antero Res. Corp., 582 S.W.3d 566, 571 (Tex. App.—Fort Worth 2019, pet.

denied).

       If the movant meets that burden, then the burden shifts to the nonmovant who has

the burden to establish “by clear and specific evidence a prima facie case for each


                                              10
essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c);

see Youngkin, 546 S.W.3d at 679; Kawcak, 582 S.W.3d at 571. If the nonmovant fails to

satisfy that burden, the court must dismiss the action within the TCPA’s expedited time

frame. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d). If the nonmovant meets that

burden, then the burden finally shifts back to the moving party to prove each essential

element of any valid defenses by a preponderance of the evidence. Id.; Youngkin, 546

S.W.3d at 679; Kawcak, 582 S.W.3d at 571.

        The TCPA expressly provides for several exemptions from its application. See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.010. These exemptions are “wholly unnecessary

unless the TCPA applies” and, as discussed above, “the TCPA only applies when the

claim is based on the defendant’s exercise of the right of free speech, association, or to

petition.” Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam)

(citing TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(1)–(4), .003(a)). “Thus, when invoked,

the trial court must consider an exemption’s applicability after and in the context of the

movant having met its initial burden under the first step of the dismissal process.” Morrison

v. Profanchik, 578 S.W.3d 676, 680 (Tex. App.—Austin 2019, no pet.); see Pacheco v.

Rodriguez, 600 S.W.3d 401, 408 (Tex. App.—El Paso 2020, no pet.) (“Thus, we begin

with the threshold question of whether the TCPA applies to Appellees’ crossclaim. If not,

we need not address the question of whether the bodily injury/wrongful death exception

applies to the claim, or any of Appellants’ other sub-issues.”); see also Castleman, 546

S.W.3d at 688 (analyzing the commercial speech exemption). 4


          4 We note that some courts have addressed the applicability of an exemption without addressing

the first step of the burden-shifting scheme. See TEX. R. APP. P. 47.1 (stating that appellate courts must
address every issue raised that is necessary to final disposition of appeal); see, e.g., Sanders ex rel. Ejiofor
v. Bansal, No. 01-18-00508-CV, 2019 WL 7341660, at *4 (Tex. App.—Houston [1st Dist.] Dec. 31, 2019,
pet. denied) (mem. op.) (“Because it is dispositive, we limit our analysis to the Patients’ argument that their

                                                      11
        If an action falls under a TCPA exemption, the TCPA does not apply and may not

be used to dismiss the action. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010; State ex

rel. Best, 562 S.W.3d at 11; Morrison, 578 S.W.3d at 680. The supreme court has

explained that “[c]onstruing the TCPA liberally means construing its exemptions

narrowly,” in part because of “the legislature’s clear instruction to construe the TCPA

liberally to protect citizens’ rights to participate in government.” State ex rel. Best, 562

S.W.3d at 14; see ADB Interest, LLC v. Wallace, No. 01-18-00210-CV, 2020 WL

2787586, at *8, __ S.W.3d __, __ (Tex. App.—Houston [1st Dist.] May 28, 2020, no pet.

h.). The party asserting that the exemption applies has the burden to prove its application.

Schimmel v. McGregor, 438 S.W.3d 847, 857 (Tex. App.—Houston [1st Dist.] 2014, pet.

denied).

        There are two exemptions at issue in this appeal: the “commercial speech”

exemption and the “bodily injury exemption.” The TCPA’s commercial speech exemption

provides:

        This chapter 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). The Texas Supreme Court has

established a four-part test for application of the commercial speech exemption.




fraudulent lien suits are not subject to the TCPA’s dismissal procedures because the communications at
issue—the Providers’ hospital liens—are exempted commercial speech.”); Santellana v. CentiMark Corp.,
No. 01-18-00632-CV, 2019 WL 1442228, at *3 (Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.) (mem.
op.) (stating that commercial speech exemption constitutes independent ground “that can fully support a
trial court’s denial of a motion to dismiss filed pursuant to the TCPA”). While this is a sensible approach that
comports with the appellate rules, we do not decide whether this is necessary in all circumstances, and in
this case, will fully address the statutory analysis.

                                                      12
Castleman, 546 S.W.3d at 688. Under Castleman, the commercial speech 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. The commercial speech exemption’s reference to “the sale or lease of goods or

services” refers “to the defendant’s sale or lease of goods or services.” Id. (emphasis

added). In contrast, the exemption does not apply, and a defendant may avail himself of

the TCPA’s protections, “when he speaks of other goods or services in the marketplace,”

i.e., goods or services that the speaker does not sell or lease. Id. at 689; see also Dickens

v. Jason C. Webster, P.C., No. 05-17-00423-CV, 2018 WL 6839568, at *5 (Tex. App.—

Dallas Dec. 31, 2018, no pet.) (mem. op.).

       Under the “bodily injury” exception, the TCPA does not apply to “a legal action

seeking recovery for bodily injury, wrongful death, or survival or to statements made

regarding that legal action.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(c); Kirkstall Rd.

Enters., Inc. v. Jones, 523 S.W.3d 251, 253 (Tex. App.—Dallas 2017, no pet.) (“The plain

language of section 27.010(c) excludes legal actions seeking recovery for bodily injury.”).

As noted, a legal action means “a lawsuit, cause of action, petition, complaint, cross-

claim, or counterclaim or any other judicial pleading or filing that requests legal or


                                             13
equitable relief.” See id. § 27.001(6). “Bodily injury” commonly denotes physical damage

to a person’s body. Cavin v. Abbott, 545 S.W.3d 47, 57 (Tex. App.—Austin 2017, no pet.)

(collecting authorities).

       The exemption applies when a claim seeks recovery for bodily injury and does not

distinguish based on the type of claim asserted. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.010(c); Cavin, 545 S.W.3d 57 (holding that an assault claim fell within the bodily

injury exemption because it “seeks recovery for alleged injuries that are plainly of this

character”); Kirkstall Rd. Enters., Inc., 523 S.W.3d at 253 (holding that the bodily injury

exemption applied to the plaintiff’s suit against a documentary producer because the

plaintiff sought to recover for four gunshot wounds that he claimed he sustained as a

result of the producer’s negligence in editing and producing its program); see also

Superior HealthPlan, Inc. v. Badawo, No. 03-18-00691-CV, 2019 WL 3721327, at *4 (Tex.

App.—Austin Aug. 8, 2019, no pet.) (mem. op.) (holding that the bodily injury exemption

applied to a healthcare liability claim). The TCPA does not make the “bodily injury”

exemption contingent on a threshold showing of merit or “clear and specific evidence.”

Cavin, 545 S.W.3d at 58.

       We address these exemptions in detail later in this opinion.

C.     Deadlines and Discovery

       The TCPA sets deadlines for filing a motion to dismiss, hearing the motion to

dismiss, ruling on the motion to dismiss, and issuing findings, if any, on the imposition of

sanctions. TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003(b), .004, .005(a), .007(b). The

filing of a motion to dismiss suspends discovery unless the trial court orders specific and

limited discovery upon the showing of good cause. See id. §§ 27.003(c), .006(b); In re

SSCP Mgmt., Inc., 573 S.W.3d 464, 472–73 (Tex. App.—Fort Worth 2019, orig.

                                            14
proceeding) (acknowledging that “some merits-based discovery” may be necessary for

nonmovant to respond to TCPA dismissal motion).

D.     Standard and Scope of Review

       We perform a de novo review of a trial court’s ruling on a TCPA motion to dismiss.

Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353

(Tex. App.—Houston [1st Dist.] 2013, pet. denied). We likewise apply a de novo standard

of review to statutory construction issues that arise in analyzing a ruling on a motion to

dismiss filed under the TCPA. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015)

(per curiam). When construing the TCPA, as with any other statute, our objective is to

give effect to the legislative intent, looking first to the statute’s plain language. Id. If that

language is unambiguous, “we interpret the statute according to its plain meaning.” Id.

       In considering a motion to dismiss, the trial court considers “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); In re Lipsky, 460 S.W.3d at 587;

Tex. Custom Wine Works, LLC, 598 S.W.3d at 384; Hieber v. Percheron Holdings, LLC,

591 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). A trial court

considers the pleadings and evidence in the light most favorable to the nonmovant.

Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d 75, 84 (Tex. App.—Houston [1st Dist.]

2018, pet. denied).

                                         III. ANALYSIS

       We apply the statutory scheme’s “zig-zagging” burden of proof. Tex. Custom Wine

Works, LLC, 598 S.W.3d at 383.




                                               15
A.     Initial Burden

       We first examine whether MedData, Turek, and DeVore, as movants, met their

initial burden to show by a preponderance of the evidence that Hernandez has asserted

a “legal action” that is based on, relates to, or is in response to the movants’ exercise of

one of the three rights delineated in the TCPA, the right of free speech, the right to petition,

or the right of association. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b); Youngkin,

546 S.W.3d at 679; Kawcak, 582 S.W.3d at 571.

       In their TCPA motions, these appellants argued that Hernandez’s suit is based on,

related to, or in response to their right to petition and right of free speech. As noted, the

TCPA defines the “exercise of the right to petition” broadly, encompassing “a

communication in or pertaining to,” among other things, “a judicial proceeding” or “an

official proceeding, other than a judicial proceeding, to administer the law.” See TEX. CIV.

PRAC. & REM. CODE ANN. § 27.001(4)(A). In addition, the exercise of the right to petition

includes communications “in connection with an issue under consideration or review” in

an “official proceeding” as well as communications that are “reasonably likely to

encourage such consideration or review.” Id. § 27.001(4)(B)–(C). “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 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). A “communication” is

defined to include “the making or submitting of a statement or document in any form or

                                              16
medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). 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. See id. § 27.001(7); Adams v. Starside

Custom Builders, LLC, 547 S.W.3d 890, 896 (Tex. 2018). A broad range of

communications, in various media, are covered by the TCPA. See Adams, 547 S.W.3d

at 894 (discussing the nature of communications that fit within the TCPA). Further, the

TCPA does not discriminate between public and private communications if they are made

in connection with a matter of public concern. Lippincott, 462 S.W.3d at 509.

       On substantially similar facts, our sister court in Tyler concluded that a lawsuit filed

by an injured party seeking declaratory relief that the bills reflected in a hospital lien were

excessive and unreasonable fell within the purview of the TCPA as a “legal action” that is

based on, relates to, or is in response to the movant’s exercise of the right of free speech.

ETX Successor Tyler v. Pridgeon, 570 S.W.3d 392, 397 (Tex. App.—Tyler 2019, no pet.)

(“Accordingly, ETMC’s filing of the hospital lien was an exercise of its right to free

speech.”); see also Berry v. ETX Successor Tyler, No. 12-18-00095-CV, 2019 WL

968528, at *3 (Tex. App.—Tyler Feb. 28, 2019, no pet.) (mem. op.) (reaching the same

conclusion); E. Tex. Med. Ctr. Athens v. Hernandez, No. 12-17-00333-CV, 2018 WL

2440508, at *3 (Tex. App.—Tyler May 31, 2018, pet. denied) (mem. op.) (same).

       In Pridgeon, the plaintiff was seriously injured in a car accident and was treated at

ETMC. See 570 S.W.3d at 396. ETMC filed a hospital lien pursuant to Chapter 55 of the

Texas Property Code on all causes of action or claims filed by or on behalf of the plaintiff

for damages arising from the injury for which he was admitted to the hospital. Id. ETMC

asserted an outstanding balance of $597,830.16 for the medical care that it provided to

                                              17
the plaintiff. Id. The plaintiff ultimately settled its personal injury claims arising from the

motor vehicle accident and subsequently filed a declaratory judgment action against

ETMC for a determination of the parties’ rights, status, and legal relationship arising under

Chapter 55 of the property code. Id. ETMC filed a motion to dismiss pursuant to the TCPA

which was overruled by operation of law and ETMC appealed that ruling. Id.

       As in this case, ETMC argued that the notice of hospital lien that it filed constituted

an exercise of the right to free speech, or alternatively, the right to petition. The Tyler court

agreed that ETMC’s actions implicated the right of free speech:

       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) . . . . The lien attaches to the proceeds of a settlement of a
       cause of action or a claim by the injured individual. Id. § 55.003(a)(3). The
       statute helps ensure prompt and adequate treatment for accident victims.
       McAllen Hosps., L.P. v. State Farm Cty. Mut. Ins. Co. of Tex., 433 S.W.3d
       535, 537 (Tex. 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. TEX. PROP. CODE
       ANN. § 55.005 . . . .

       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 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 v.
       Whisenhunt, 462 S.W.3d 507, 510 (Tex. 2015). 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. Accordingly, ETMC’s
       filing of the hospital lien was an exercise of its right to free speech.
       Pridgeon’s declaratory judgment cause of action, in which she seeks a
       declaration regarding the construction of the hospital lien statute, is in
       response to ETMC’s exercise of its right of free speech.

Pridgeon, 570 S.W.3d at 397; see also Berry, 2019 WL 968528, at *3; E. Tex. Med. Ctr.

Athens, 2018 WL 2440508, at *3.




                                               18
       We concur with this analysis. Under the property code, subject to certain

conditions, 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). 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 before money is paid

to an entitled person because of the injury. See id. § 55.005. 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. See id. § 55.003(a).

       The purpose of the lien is to provide hospitals an additional method of securing

payment for medical services, thus encouraging the prompt and adequate treatment of

accident victims and reducing hospital costs. See McAllen Hosps., L.P., 433 S.W.3d at

537; Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 411

(Tex. 2007); Bashara v. Baptist Mem’l Hosp. Sys., 685 S.W.2d 307, 309 (Tex. 1985). The

lien is “part and parcel” of the underlying claim and only exists because of the claim.

Linnstaedter, 226 S.W.3d at 411. “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.

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.

       As a threshold matter, the filing of the lien meets the definition of a “communication”

under the TCPA because it includes “the making or submitting of a statement or document

in any form or medium. . . .” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1). Further, the

hospital lien constitutes a communication made in connection with “a matter of public

                                              19
concern” as a matter involving health or safety. See id. §§ 27.001(3), .001(7). The

statutory hospital lien is an attempt to obtain payment for medical services for injuries

caused by an accident that is attributed to the negligence of another person and it

encourages the prompt and adequate treatment of accident victims, and thus relates to

health. See TEX. PROP. CODE ANN. § 55.002; McAllen Hosps., L.P., 433 S.W.3d at 537;

Linnstaedter, 226 S.W.3d at 411; Bashara, 685 S.W.2d at 309. And, “the provision of

medical services by a health care professional constitutes a matter of public concern.”

Lippincott, 462 S.W.3d at 510; see Pridgeon, 570 S.W.3d at 397.

       Here, the filing of the hospital lien is a communication that relates to health, and

the provision of medical services by a health care professional constitutes a matter of

public concern. See id. Thus, the filing of the lien constituted a communication made in

connection with a matter of public concern and thus implicated the TCPA’s definition of

the “exercise of the right of free speech.” See TEX. CIV. PRAC. & REM. CODE ANN. §

27.001(3); Pridgeon, 570 S.W.3d at 397; see also Berry, 2019 WL 968528, at *3; E. Tex.

Med. Ctr. Athens, 2018 WL 2440508, at *3.

       Hernandez’s “Verified Second Amended CPRC Chapter 12 Petition Emergency

Room Only and Request for Declaratory Relief” requested declaratory relief and brought

causes of action relating to the allegedly fraudulent hospital lien. Because Hernandez is

challenging the amount of the lien and the reasonableness of the hospital bills secured

by the lien, her lawsuit is in response to these appellants’ exercise of their right of free

speech. See Pridgeon, 570 S.W.3d at 397; see also E. Tex. Med. Ctr. Athens, 2018 WL

2440508, at *2–3. Accordingly, we conclude that appellants, as movants, met their initial

burden to show by a preponderance of the evidence that Hernandez has asserted a “legal

action” that is based on, relates to, or is in response to the appellants’ exercise of the right

                                              20
of free speech. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b); Youngkin, 546 S.W.3d

at 679; Kawcak, 582 S.W.3d at 571. Because these appellants met their initial burden as

to the “exercise of the right of free speech,” we need not address whether their conduct

qualified as the “exercise of the right to petition.” See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.005(b); see also TEX. R. APP. P. 47.1. We sustain MedData’s first issue and Turek

and DeVore’s first sub-issue. Accordingly, we will continue with our analysis of these

appeals in accordance with the statutory scheme.

B.     Statutory Exemptions

       We must next consider the applicability of any statutory exemption. See

Castleman, 546 S.W.3d at 688; Morrison, 578 S.W.3d at 680. Hernandez asserted that

the commercial speech and bodily injury exemptions apply in this case. In its second and

third issues, respectively, MedData strenuously disagrees. Turek and DeVore likewise

contend that these exemptions are inapplicable in their second and third sub-issues.

       1.      Commercial Speech Exemption

       As stated previously, the TCPA’s commercial speech exemption provides that 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 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).

       The Houston First Court of Appeals and the Tyler Court of Appeals have concluded

that the commercial speech exemption applies under similar facts regarding lawsuits

based on hospital liens. See N. Cypress Med. Ctr. Operating Co. GP, LLC v. Norvil, 580

S.W.3d 280, 285 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (concluding that the

                                             21
commercial speech exemption applied to hospital liens); Pridgeon, 570 S.W.3d at 398

(concluding that the bodily injury and commercial speech exemptions both applied to a

lawsuit seeking declaratory relief regarding a hospital lien); see also Sanders ex rel.

Ejiofor v. Bansal, No. 01-18-00508-CV, 2019 WL 7341660, at *4 (Tex. App.—Houston

[1st Dist.] Dec. 31, 2019, pet. denied) (mem. op.) (“According to the Patients, the

Providers’ hospital liens are nothing more than attempts to collect payment owed on

business transactions and, as such, are not TCPA-protected.”); Berry, 2019 WL 968528,

at *4 (“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 [a] 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.”); E. Tex. Med. Ctr.

Athens, 2018 WL 2440508, at *4 (concluding that the commercial speech exemption

applied to ETMC’s conduct in filing the hospital lien).

       In North Cypress, the First Court of Appeals considered a case wherein a medical

facility filed a hospital lien on its patient’s pending causes of action against an alleged

tortfeasor. See N. Cypress Med. Ctr. Operating Co. GP, LLC, 580 S.W.3d at 282; see

also Schmidt v. Crawford, 584 S.W.3d 640, 654–55 (Tex. App.—Houston [1st Dist.] 2019,

no pet.) (discussing North Cypress); Diogu Law Firm PLLC v. Experience Infusion Ctrs.

LLC, No. 01-19-00494-CV, 2020 WL 1681182, at *3 (Tex. App.—Houston [1st Dist.] Apr.

7, 2020, no pet.) (mem. op.) (same). In North Cypress, the patient filed a petition for

declaratory judgment seeking a determination of the parties’ rights and a determination

of what qualified as a reasonable charge for the services the hospital provided. 580

S.W.3d at 283. The hospital filed a TCPA motion seeking dismissal of the patient’s suit

on the basis that the hospital’s filing of a lien constituted a communication made in the

                                              22
exercise of the hospital’s right of free speech and right to petition. Id. The patient argued

the commercial-speech exemption applied, making the TCPA’s summary-dismissal

procedures unavailable to the hospital. Id. The hospital responded that the exemption did

not apply because its lien was not filed for the purpose of securing sales in goods or

services, and the intended audience of the lien was not actual or potential buyers or

customers, referencing the second and fourth Castleman elements. Id. at 286. The trial

court held that the commercial speech exemption applied, and the appellate court agreed.

       The court rejected the hospital’s first argument that its lien was not filed for the

purpose of securing sales in services. See id. at 285–86. Under the court’s analysis, the

hospital filed the lien to recover fees for services it rendered to the patient, and in addition

to the lien, the hospital filed counterclaims against the patient. Id. at 286. The hospital’s

efforts arose out of the commercial transaction between the hospital and patient whereby

the hospital provided services in exchange for a fee. Id. The hospital filed the lien “trying

to get paid for the healthcare services it provided to Norvil,” and to complete that

transaction and collect from the patient the fee it claimed was due. See id. (noting hospital

liens against patients’ tort recoveries are claims against patients).

       The court also rejected the hospital’s second argument, that the intended audience

of the lien was not its customer. Id. The court considered that a lien against a patient’s

tort recovery is a claim against the patient, see Linnstaedter, 226 S.W.3d at 411, and, in

essence, that the hospital was making a demand on the patient to pay the amount owed.

See N. Cypress Med. Ctr. Operating Co. GP, LLC, 580 S.W.3d at 286. Thus, the First

Court of Appeals reasoned that the patient was a member of the intended audience. Id.

       In East Texas Medical Center Athens, the Tyler Court of Appeals concluded that

the four Castleman factors for the commercial speech exemption were met: the medical

                                              23
center was primarily engaged in the business of selling health services, it filed the hospital

lien in its capacity as a seller of those health services, the lien arose out of a commercial

transaction involving the medical center’s health services, and the intended audience of

the hospital lien included the plaintiff. See 2018 WL 2440508, at *3. Consequently, the

court concluded that the commercial speech exemption applied to the medical center’s

conduct. See id.

       MedData asserts that this exemption does not apply in this case because: (1) the

intended audience of the lien notice did not include its customers, that is MedData’s

customers, but instead targeted the customers of third party hospitals, and MedData

provided services to the hospitals themselves; (2) the lien notice does not concern

MedData’s own services, but instead concerns healthcare services provided by the

hospital; (3) MedData did not make a statement in its capacity as a seller of goods or

services, but rather, the lien notice “simply publicized the Hospital’s lien” and “MedData’s

statement [arose] in the performance of its duties under a contract” with the hospital; and

(4) the lien notice does not “propose” a transaction. Turek and DeVore make similar

arguments regarding the applicability of this exemption. They assert that (1) the intended

audience did not include their customers, who are hospitals; and (2) the lien notice does

not concern their own services.

       The majority of the foregoing arguments are founded on appellants’ allegations

that they did not provide the medical services at issue in the lien. In support of this

allegation, MedData cites, inter alia, Toth v. Sears Home Improvement Products, Inc.,

557 S.W.3d 142, 154 (Tex. App.—Houston [14th Dist.] 2018, no pet.). In Toth, Sears hired

Toth, as an independent contractor, to inspect moisture damage to wood flooring that

Sears had sold to Langham and installed in her home. Id. at 146–47. Toth, who owned

                                             24
his own flooring business at the time, recommended to Sears that Langham’s wood

flooring needed to be reinstalled and that Bostik, a membrane sealant, should be used

as part of the reinstallation to prevent moisture damage. Id. at 147. Langham sued Sears,

who had refused to reinstall the flooring. Id. During the course of the litigation, Sears

learned that Toth had recommended Bostik to Langham and had told her that he believed

it would prevent moisture damage. Id. at 147–48. Sears filed suit against Toth as a third-

party defendant for breaching his agreement with Sears by recommending a non-

authorized product, Bostik, to Langham. Id. at 148. Toth moved to dismiss under the

TCPA. Id.

       Citing to Castleman, the Toth court stated that “the mere fact that a person sells

goods or services does not deny him the TCPA’s protections when he speaks of ‘other

goods’ in the marketplace.” Toth, 557 S.W.3d at 154 (citing Castleman, 546 S.W.3d at

688). The court held that because Toth did not sell Bostik, his recommendation of the

product to Langham was not a statement “about” Toth’s particular goods or services, i.e.,

flooring services, but rather it was a statement about a generally available product, Bostik.

Id. The court reasoned that, therefore, Toth’s recommendation was “akin to expressing

an opinion or evaluation about another’s product in the marketplace, which is ordinarily

protected speech.” Id. (citing Better Bus. Bureau of Metro. Hous., Inc., 441 S.W.3dat 353–

54 (stating that the exercise of the right of free speech as contemplated by the TCPA

includes a person’s right to communicate reviews or evaluations of services in the

marketplace).

       This analysis is sound, but it is not applicable to the facts in this case. According

to the record evidence, MedData served as the hospital’s agent and, according to

Hernandez’s allegations and pursuant to contract, MedData had a financial interest

                                             25
against Hernandez in filing the lien. Although Turek and DeVore attempt to characterize

their relationship to this case as counsel for the medical defendants involved,

Hernandez’s allegations and the evidence indicate that they owned and operated Alegis,

and by contract, owned a percentage of the profits obtained through collection of

Hernandez’s lien. Thus, while the lien arose out of the medical services that were provided

to Hernandez—that is, other goods, products or services in the marketplace—the

appellants effectively owned part of the lien that was filed against Hernandez.

       In short, according to the record, the appellants were in the business of filing and

collecting on hospital liens. See Castleman, 546 S.W.3d at 688 (requiring the defendant

to be primarily engaged in the business of selling or leasing goods or services). They filed

the hospital lien against Hernandez in order to collect payment on the hospital lien for the

medical services provided to Hernandez. See id. (requiring the defendant to have 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). The hospital lien is the kind of

goods or services that the appellants provide. See id. (requiring the statement or conduct

at issue to arise from a commercial transaction involving the kind of goods or services the

defendant provides). And, the intended audience of the lien, which we note was a public

filing, included actual or potential customers of the appellants. See id. (requiring the

intended audience of the statement or conduct to be actual or potential customers of the

defendant for the kind of goods or services the defendant provides). In this regard, we

note that the language of the statutory exemption merely requires that “the statement or

conduct arise[] out of the sale or lease of goods, 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). In comparing and contrasting this language to other

                                             26
provisions in the TCPA, the appellate courts have concluded the Legislature used “arise

out of” in this section broadly to include statements and conduct ancillary to a commercial

transaction, and have not construed “arising out of” narrowly to mean a statement or

conduct that is based on or that comprises the commercial transaction itself. See Robert

B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 605 (Tex. App.—San Antonio 2018, pet.

denied); Backes v. Misko, 486 S.W.3d 7, 21 (Tex. App.—Dallas 2015, pet. denied); Hicks

v. Grp. & Pension Adm’rs, Inc., 473 S.W.3d 518, 531 (Tex. App.—Corpus Christi–

Edinburg 2015, no pet.); see also Kinney v. BCG Attorney Search, Inc., No. 03-12-00579-

CV, 2014 WL 1432012, at *6 (Tex. App.—Austin Apr. 11, 2014, pet. denied) (mem. op.).

Hernandez was the intended audience of the lien and MedData, Turek, and DeVore

intended her to complete the commercial transaction that they proposed by filing the lien.

       Finally, MedData asserts that the lien does not “propose” a transaction. In short,

MedData appears to contend that, for a statement to arise out of a commercial

transaction, it must be made for the purpose of securing a future sale. For this proposition,

MedData relies on the Texas Supreme Court’s statement in Castleman that the

commercial speech exemption applies to commercial speech which does no more than

propose a commercial transaction. See Castleman, 546 S.W.3d at 688, 690. However,

this statement does not purport to refine the exemption’s third requirement; rather, it

differentiates between speech directed to customers and speech directed elsewhere, as

part of the analysis of the fourth requirement. See id. In fact, interpreting the statute as

MedData suggests would be contrary to the statute’s language insofar as it refers

explicitly to “actual” and “potential” buyers. TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b).

Contrary to MedData’s assertion, Castleman did not limit the applicability of the exemption



                                             27
to speech intended to secure future sales. See Castleman, 546 S.W.3d at 688; Norvil,

580 S.W.3d at 286; see also Sanders, 2019 WL 7341660, at *5.

       We conclude that the commercial speech exemption applies, and thus we overrule

MedData’s second issue and Turek and DeVore’s second sub-issue.

       2.     Bodily Injury

       In MedData’s third issue, and in Turek and DeVore’s third sub-issue, they assert

that the “bodily injury” exemption does not apply to this case. We note that the Tyler Court

of Appeals has concluded that a declaratory judgment action regarding the validity of a

hospital lien falls within the bodily injury exemption to the TCPA:

       The TCPA does not apply to a legal action seeking recovery for bodily injury
       or to statements made regarding that legal action. TEX. CIV. PRAC. & REM.
       CODE ANN. § 27.010(c). Here, the hospital lien sought to recover judgments
       for damages and the proceeds of settlements of Dubose’s causes of action
       for injuries sustained by him in the accident. Thus, the lien is a statement
       regarding Dubose’s bodily injury action. Pridgeon’s declaratory judgment
       action involves the interpretation and application of the hospital lien statute
       pursuant to which ETMC filed a lien to obtain payment for its services to
       Dubose for his bodily injuries. We are unpersuaded by ETMC’s argument
       that the lien cannot be a statement regarding Dubose’s bodily injury action
       because the lawsuit was filed after the lien was recorded. By its own terms,
       the lien was to attach to judgments or settlements occurring at any time after
       the lien was recorded. We conclude that this exemption applies, making
       Pridgeon’s declaratory judgment suit exempt from application of the TCPA’s
       dismissal scheme.

Pridgeon, 570 S.W.3d at 398. MedData, Turek, and DeVore vociferously disagree with

the Pridgeon analysis and contend that Hernandez’s lawsuit is neither a “legal action

seeking recovery for bodily injury” nor is it a “statement” made regarding that legal action

but is instead is a legal action for economic damages resulting from alleged statutory

violations, and thus, under the plain meaning of the statute, the bodily injury exemption

does not apply because Hernandez’s lawsuit concerns a debt collection matter. However,

having concluded that the commercial speech exemption applies to this case, we need

                                             28
not further address the applicability of the bodily injury exemption. See TEX. R. APP. P.

47.4.

C.      Summary

        Appellants, as movants, met their initial burden to show by a preponderance of the

evidence that Hernandez has asserted a “legal action” that is based on, relates to, or is

in response to the appellants’ exercise of the right of free speech. TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005(b); Youngkin, 546 S.W.3d at 679; Kawcak, 582 S.W.3d at 571. And,

construing the TCPA exemptions narrowly, see State ex rel. Best, 562 S.W.3d at 14, we

conclude that Hernandez met her burden to show that the commercial speech exemption

applies. See Schimmel, 438 S.W.3d at 857. Accordingly, the TCPA does not apply and

may not be used to dismiss the action. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010;

State ex rel. Best, 562 S.W.3d at 14; Morrison, 578 S.W.3d at 680. Having reached these

conclusions, we need not address the appellants’ remaining issues or sub-issues. See

TEX. R. APP. P. 47.4.

                                     IV. CONCLUSION

        We affirm the judgment of the trial court in cause number 13-19-00461-CV and

cause number 13-19-00462-CV.

                                                              GREGORY T. PERKES
                                                              Justice

Delivered and filed the
20th day of August, 2020.




                                            29
