Opinion issued July 30, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                           ————————————
                               NO. 01-18-00954-CV
                           ———————————
                          PEGGY PIERCE, Appellant
                                        V.
  GARY T. BROCK, M.D. AND GARY T. BROCK, M.D., P.A., Appellees



                   On Appeal from the 157th District Court
                            Harris County, Texas
                      Trial Court Case No. 2018-42395


                       MEMORANDUM OPINION

      Appellant, Peggy Pierce, appeals the trial court’s order denying her motion to

dismiss filed pursuant to the Texas Citizens Participation Act (“TCPA” or “the
Act”).1 In one issue, Pierce contends that the trial court erred when it denied her

motion to dismiss appellees, Gary T. Brock, M.D. and Gary T. Brock, M.D., P.A.’s

(collectively, “Brock”) claims for negligence, fraud, and breach of fiduciary duty

against her because (1) she showed by a preponderance of the evidence that the

TCPA applies to Brock’s claims and (2) Brock failed to establish by clear and

specific evidence a prima facie case for each essential element of its claims. We

affirm.

                                    Background

      Dr. Brock is an orthopedic surgeon in Houston, Texas. His professional

association, Gary T. Brock, M.D., P.A., is one of a number of partners that forms

Fondren Orthopedic Group, L.L.P. (“FOG”). FOG hired Pierce in 1989. Pierce

became FOG’s administrator in 1993 and, in 2017, she was named FOG’s Chief

Operating Officer.

      In her role as administrator, Pierce was responsible for the day-to-day

operations of Brock P.A. and overseeing all financial aspects of the practice,

including billing, collections, the allocation of overhead, and the payment and

distribution of partnership funds. In 2018, FOG initiated an internal investigation of

Pierce after its physicians had become concerned with Pierce’s actions and behavior.




1
      See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.
                                          2
On February 8, 2018, FOG placed Pierce on a leave of absence. FOG terminated

Pierce’s employment on March 15, 2018.2

      On February 28, 2018, Pierce filed a charge of discrimination with the Texas

Workforce Commission (“TWC”) and the Equal Employment Opportunity

Commission (“EEOC”). On April 16, 2018, the parties attempted to resolve Pierce’s

claims at a pre-suit mediation but were unsuccessful.

      On May 23, 2018, Pierce filed suit against FOG and Fondren Orthopedic Ltd.

(“FOLTD”) in federal court,3 alleging claims of disability, age, and sex

discrimination, retaliation, and breach of contract. On June 21, 2018, FOG and

FOLTD answered and asserted counterclaims against Pierce for breach of fiduciary

duty, fraud, conversion, and declaratory judgment.

      On June 25, 2018, Dr. Brock and Brock P.A. filed suit against Pierce, asserting

claims   for   fraud,   fraud   by   non-disclosure,    negligence,    and    negligent

misrepresentation. Brock P.A. also asserted a claim against Pierce for breach of

fiduciary duty.




2
      In a letter dated April 18, 2018, FOG informed Pierce that it had classified her
      termination as “for cause.”
3
      FOG’s partners formed FOLTD to operate Texas Orthopedic Hospital. The hospital
      and FOG “work in tandem as a one-stop shop: the Partners provide clinical care and
      perform surgery, and the Hospital provides pre- and post-operative care.”
                                          3
      On August 23, 2018, Pierce filed a motion to dismiss Brock’s lawsuit arguing

that the suit was related to, and in response to, Pierce’s exercise of the right to

petition, to wit, her suit against FOG, and that Brock failed to establish by clear and

specific evidence a prima facie case for each essential element of its claims, thereby

entitling Pierce to dismissal of the claims under the TCPA. To her motion, Pierce

attached numerous exhibits, including her declaration and her husband’s declaration.

In its response and sur-reply, Brock argued that Pierce’s motion to dismiss should

be denied because Pierce failed to show by a preponderance of the evidence that

Brock’s lawsuit was related to, or in response to, Pierce’s lawsuit, and Brock

provided clear and specific evidence of a prima facie case for each essential element

of its claims. Brock also objected to Pierce’s and her husband’s declarations on the

grounds that they violated the mediation privilege, contained inadmissible hearsay,

and were irrelevant as to whether the TCPA applied to Brock’s lawsuit.

      On September 28, 2018, the trial denied Pierce’s motion to dismiss. In its

order, the trial court also sustained Brock’s objections to the declarations of Pierce

and her husband and struck them from the record. This interlocutory appeal

followed.4


4
      Pierce has filed a related interlocutory appeal from the trial court’s order denying
      her motion to dismiss in Pierce v. Stocks, M.D., No. 01-08-00990-CV, which is
      currently pending in this Court. The underlying cause is Peggy Pierce v. Gregory
      Stocks, M.D., trial court cause number 2018-56514, in the 215th District Court of
      Harris County, Texas.
                                           4
                         Texas Citizen’s Participation Act

      In one issue, Pierce contends that the trial court erred in denying her motion

to dismiss Brock’s claims because (1) the claims relate to, and are in response to,

her exercise of the right to petition, and (2) Brock did not establish by clear and

specific evidence a prima facie case for each essential element of its claims.

   A. Applicable Law and Standard of Review

      Chapter 27, also known as the Texas Citizens Participation Act, is an anti-

SLAPP statute. See In re Lipsky, 411 S.W.3d 530, 536 n.1 (Tex. App.—Fort Worth

2013, orig. proceeding). “SLAPP” is an acronym for “Strategic Lawsuits Against

Public Participation.” Id. The purpose of the statute “is to encourage and safeguard

the constitutional rights of persons to petition, speak freely, associate freely, and

otherwise participate in government to the maximum extent permitted by law and,

at the same time, protect the rights of a person to file meritorious lawsuits for

demonstrable injury.” TEX. CIV. PRAC. & REM. CODE § 27.002; KTRK Television,

Inc. v. Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied). The TCPA created “an avenue at the early stage of litigation for dismissing

unmeritorious suits that are based on the defendant’s exercise” of certain

constitutional rights. Lipsky, 411 S.W.3d at 539. The Legislature has directed courts

to construe the statute liberally “to effectuate its purpose and intent fully.” TEX. CIV.

PRAC. & REM. CODE § 27.011(b); Robinson, 409 S.W.3d at 688.

                                           5
      Section 27.003 of the TCPA allows a litigant to seek dismissal of a “legal

action” that is “based on, relates to, or is in response to a party’s exercise of the right

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

CODE § 27.003(a). 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 equitable relief.” Id. § 27.001(6). The TCPA defines “exercise of

the right to petition” as, among other things, “a communication in or pertaining to .

. . a judicial proceeding.” Id. § 27.001(4)(A)(i). “Communication” is further defined

as “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 Act imposes the initial burden on the movant to establish by a

preponderance of the evidence “that the legal action is based on, relates to, or is in

response to the party’s exercise of . . . the right to petition.” Id. § 27.005(b)(2). We

review de novo the trial court’s determination whether the movant carried this

burden. Robinson, 409 S.W.3d at 688. If the trial court determines that the movant

has met her burden, the burden then shifts to the nonmovant to establish “by clear

and specific evidence a prima facie case for each essential element of the claim in

question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). If the nonmovant satisfies

that requirement, the burden shifts back to the movant to prove each essential




                                            6
element of any valid defenses by a preponderance of the evidence.            See id.

§ 27.005(d).

      The Legislature’s use of “prima facie case” in the second step of the inquiry

implies a minimal factual burden: “[a] prima facie case represents the minimum

quantity of evidence necessary to support a rational inference that the allegation of

fact is true.” Robinson, 409 S.W.3d at 688; Rodriguez v. Printone Color Corp., 982

S.W.2d 69, 72 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). The TCPA

requires that the plaintiff’s proof address and support each “essential element” of

every claim and that the proof constitute “clear and specific evidence.” Robinson,

409 S.W.3d at 688. Because the statute does not define “clear and specific,” we

apply the ordinary meaning of these terms. Id. at 689. “Clear” means

“unambiguous,” “sure,” or “free from doubt,” and “specific” means “explicit” or

“relating to a particular named thing.” Id.

      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.” TEX. CIV. & PRAC. REM. CODE § 27.006(a). We review

the pleadings and evidence in the light most favorable to the plaintiff. Newspaper

Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71, 80–81 (Tex.

App.—Houston [1st Dist.] 2013, pet. denied); see also Sloat v. Rathbun, 513 S.W.3d

500, 504 (Tex. App.—Austin 2015, pet. dism’d) (“Importantly here, we also view

                                          7
the [evidence] in the light most favorable to . . . the nonmovant[.]”). Here, if we

determine that Pierce carried her initial burden to prove that Brock’s claims are

covered by the Act, we must examine the pleadings and the evidence presented in

response to Pierce’s motion to dismiss to determine whether Brock marshaled “clear

and specific” evidence to support each essential element of its claims. See Robinson,

409 S.W.3d at 689.

      We consider de novo the legal question of whether the movant has established

by a preponderance of the evidence that the challenged legal action is covered under

the Act. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no pet.).

We also review de novo a trial court’s determination of whether a nonmovant has

presented clear and specific evidence establishing a prima facie case for each

essential element of the challenged claims. Id.

   B. Applicability of TCPA to Brock’s Claims

      The TCPA applies to Brock’s lawsuit if it is (1) a legal action (2) related to or

in response to (3) Pierce’s exercise of the right to petition. The parties agree that the

first and third elements of the test are met because the TCPA defines a legal action

as “a lawsuit,” and Pierce’s federal lawsuit is “a communication made in or

pertaining to . . . a judicial proceeding. TEX. CIV. PRAC. REM. CODE §§ 27.001(1),

(4)(A)(i), (6). Thus, we must determine whether Pierce has established by a




                                           8
preponderance of the evidence that Brock’s lawsuit relates to, or is in response to,

Pierce’s federal lawsuit.

      Pierce argues that Brock’s lawsuit was filed in response to her federal lawsuit

because, by filing the lawsuit, Brock intended to chill her right to petition. In support

of her argument, Pierce points to alleged retaliatory statements made during the

mediation of her federal lawsuit that she claims show that FOG and FOLTD

“threatened to cause its individual partners to sue Pierce if she sued them first.”

Pierce argues that “[t]he district court did not consider this evidence of the subjective

motivation behind Brock’s lawsuit, presumably based on the claim that it was

prohibited from doing so because the retaliatory statements were made in a

mediation.” Pierce asserts, however, that the statements qualify as an exception to

the mediation privilege and, therefore, are admissible to show that Brock filed his

lawsuit in response to her federal lawsuit.

      Section 154.073 of the Texas Civil Practice and Remedies Code provides, in

relevant part:

      Except as provided by Subsections (c), (d), (e), and (f), a
      communication relating to the subject matter of any civil or criminal
      dispute made by a participant in an alternative dispute resolution
      procedure, whether before or after the institution of formal judicial
      proceedings, is confidential, is not subject to disclosure, and may not
      be used as evidence against the participant in any judicial or
      administrative proceeding.




                                           9
TEX. CIV. PRAC. & REM CODE § 154.073(a). However, “an oral communication or

written material used in or made a part of an alternative dispute resolution procedure

is admissible or discoverable if it is admissible or discoverable independent of the

procedure.” Id. § 154.073(c). Pierce argues that the subjective motivation behind

the filing of Brock’s lawsuit is relevant to whether he filed his suit “in response” to

Pierce’s federal lawsuit and, therefore, is discoverable independent of the mediation

procedure.

      “[A] ‘cloak of confidentiality’ surrounds mediation, and the cloak should be

breached only sparingly.” Allison v. Fire Ins. Exch., 98 S.W.3d 227, 260 (Tex.

App.—Austin 2002, pet. granted, judgm’t vacated w.r.m.); see also Hydroscience

Techs., Inc. v. Hydroscience, Inc., 401 S.W.3d 783, 795–96 (Tex. App.—Dallas

2013, pet. denied) (holding mediation privilege barred consideration of evidence of

oral communications made during mediation). Notwithstanding the fact that the

alleged statements are arguably hearsay, see TEX. R. EVID. 801, the record shows

that they were made by individuals other than Dr. Brock and in the course of

mediation between Pierce and FOG in her federal lawsuit to which Dr. Brock is not

a party. Further, other than a conclusory assertion that the mediation statements are

relevant, Pierce does not explain why they are relevant or otherwise admissible or

discoverable independent of the mediation procedure. The trial court correctly

determined that they were not proper evidence.

                                          10
       Pierce also argues that, even if the mediation statements are not considered,

Dr. Brock’s statements in his own declaration compel the same conclusion. Pierce

argues that although Dr. Brock stated that he had no knowledge of what was said at

the mediation, he “does not actually deny that he coordinated with the other partners

of FOG in the filing of his lawsuit.” Pierce concludes that “denying knowledge of

what was said is far different from denying the truth of what was said.” As

previously noted, Dr. Brock was not at the mediation and therefore cannot confirm

or deny what was said, much less the truth of what was said. Moreover, Dr. Brock

does not bear the burden of proof at this stage of the TCPA analysis. See id.

§ 27.005(b) (imposing initial burden on movant to establish by preponderance of

evidence that legal action is based on, relates to, or is in response to party’s exercise

of right to petition).

       Other than the stricken declarations, Pierce did not submit any evidence on

this aspect of the TCPA. She contends that the pleadings alone can establish that

Brock’s lawsuit is “related to” her lawsuit because there is a connection between

Brock’s lawsuit and her federal lawsuit as both suits arise out of her employment

with FOG. A review of Brock’s petition and Pierce’s federal lawsuit does not

support this assertion. Brock’s claims of fraud, negligence, and breach of fiduciary

duty arise from the financial harm that Pierce’s alleged mismanagement and/or

misappropriation caused Brock, while Pierce’s federal suit alleges claims of

                                           11
employment discrimination based on age, sex, and disability, and retaliation. That

Pierce was employed by FOG and later sued FOG in federal court does not establish

that Brock’s claims are related to Pierce’s federal lawsuit for purposes of the TCPA.

       Pierce also contends that Brock’s lawsuit was filed “in response to” Pierce’s

federal lawsuit because it was asserted subsequently in time. She argues that Brock’s

filing of his lawsuit only four days after FOG and FOLTD filed their counterclaims

in Pierce’s lawsuit is all that is required to satisfy the first prong of the TCPA.

However, simply alleging post hoc ergo propter hoc will not satisfy her burden to

demonstrate applicability of the TCPA. Pierce had to show that Brock’s lawsuit is

in response to her exercise of her right to petition, i.e., her federal lawsuit, not the

counterclaims of the opposing party in her federal lawsuit. See id. § 27.003(a)

(allowing litigant to seek dismissal of “legal action” that is “based on, relates to, or

is in response to a party’s exercise of the right . . . to petition”).

       Viewing the pleadings in the light most favorable to Brock, we conclude that

Pierce failed to demonstrate by a preponderance of the evidence that Brock’s legal

action relates to, or in response to, her exercise of the right to petition.5 The trial

court did not err in denying Pierce’s motion to dismiss under the TCPA. See id.

§ 27.005(b). Accordingly, we overrule Pierce’s issue.


5
       Having determined that Pierce failed to meet her initial burden to show that the
       TCPA applies to Brock’s claims, we need not address whether Brock established a
       prima facie case for each of the elements of its claims against Pierce.
                                             12
                                   Conclusion

      We affirm the trial court’s order denying Pierce’s motion to dismiss.




                                             Russell Lloyd
                                             Justice

Panel consists of Justices Lloyd, Landau, and Countiss.




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