Abundant Life Therapeutic Services Texas, LLC v. Thomas T. Headen, III ( 2020 )

AFFIRMED and Opinion Filed December 11, 2020
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00145-CV
ABUNDANT LIFE THERAPEUTIC SERVICES TEXAS, LLC, Appellant
V.
THOMAS T. HEADEN, III, Appellee
On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-15576
MEMORANDUM OPINION
Before Chief Justice Burns, and Justices Pedersen, III and Evans
Opinion by Chief Justice Burns
In this interlocutory appeal we are asked to determine whether the trial court
erred in denying in part a motion to dismiss premised on the Texas Citizens
Participation Act (TCPA). Concluding it did not, we affirm.
BACKGROUND
This dispute arises between Abundant Life Therapeutic Services Texas, LLC
and its former employee, Headen. Headen initially contracted with Abundant Life
as an independent consultant contractor. As his relationship with the entity
deteriorated, he entered into an employment agreement with it, executed on behalf
of Abundant Life by one of its managers without the knowledge of the others.
Pursuant to a lengthy email in which Abundant Life explained numerous reasons for
its decision, on February 21, 2019, Headen’s consultant relationship with Abundant
Life was terminated.
On March 9, 2018, one of Abundant Life’s owners filed suit in a Harris
County district court against the entity and another of its owners (the Harris County
Lawsuit), who promptly counterclaimed. Additional related entities intervened and
filed third-party claims, including a third-party claim asserted against Headen.
Headen filed counterclaims against various parties. After the initial parties settled
their claims against each other, the claims by and against Headen were nonsuited,
which terminated the Harris County Lawsuit.1
On October 15, 2018, Headen filed this lawsuit. Following four amendments,
and after Abundant Life successfully challenged numerous claims from the earlier
pleadings in a TCPA motion preceding the one we address, Headen filed his Fifth
Amended Petition. Headen alleged claims for defamation, conspiracy to inflict
emotional distress, abuse of process, RICO racketeering, breach of contract,
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Shortly after his termination, Headen filed a complaint with the Department of Health and Human Services
Office for Civil Rights (OCR), premised on Abundant Life’s alleged violations of the Health Insurance
Portability and Accountability Act (HIPAA). OCR declined to investigate two of the complaints and
resolved the others through technical assistance agreements. Headen also filed a complaint with the Texas
Medical Board regarding the alleged corporate practice of medicine by several of Abundant Life’s
principals, on which the Board took no action. Additionally, Headen filed a Qui Tam action, which the
federal court in which it was pending dismissed with prejudice. And, Headen filed a wage claim with the
Texas Workforce Commission, pursuant to which he swore he was Abundant Life’s employee, despite his
prior consultant status. The TWC issued a Preliminary Wage Determination Order in which it confirmed
Headen’s employee status. Although Abundant Life appealed the decision, it was affirmed.
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promissory estoppel, and negligent misrepresentation. The trial court granted
Abundant Life’s second TCPA motion in part, denying it only as to the last three
claims. Abundant Life appeals denial of its motion as to those remaining claims.
DISCUSSION
We review de novo the trial court’s ruling on a TCPA motion.2 Dallas
Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). Our review entails
considering, in the light most favorable to the non-movant, the pleadings and any
supporting and opposing affidavits stating the facts on which the claim or defense is
based. TEX. CIV. PRAC. & REM. CODE § 27.006(a) (hereafter, “TCPA”); Lei v. Nat.
Polymer Int’l Corp., 578 S.W.3d 706, 712 (Tex. App.—Dallas 2019, no pet.). In
interpreting the TCPA, as any statute, we apply it as written, giving undefined terms
their “ordinary meaning.” State v. $1,760.00 in U.S. Currency, 406 S.W.3d 177, 180
(Tex. 2013) (per curiam); Levatino v. Apple Tree Cafe Touring, Inc., 486 S.W.3d
724, 728 (Tex. App.—Dallas 2016, pet. denied).
The first step in any TCPA analysis requires the movant to establish by a
preponderance of evidence that the challenged legal action is “based on, relates to,
2
The Texas Legislature amended the TCPA effective September 1, 2019. Those amendments apply to “an
action filed on or after” that date. Act of May 17, 2019, 86th Leg., R.S., ch. 378, § 11, 2019 Tex. Sess.
Law. Serv. 684, 687. This lawsuit was filed on April 3, 2019; thus, the law in effect before September 1
applies. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961–64, amended by
Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 2013 Tex. Gen. Laws 2499–2500. All citations to the TCPA
are to the version before the 2019 amendments took effect.
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or is in response to the party’s exercise of the right of free speech, the right to
petition, or the right of association.” TEX. CIV. PRAC. & REM. CODE § 27.005(b);
Goldberg v. EMR (USA Holdings) Inc., 594 S.W.3d 818, 824 (Tex. App.—Dallas
2020, pet. denied). Subsequent burden shifting occurs if the movant establishes its
initial burden. Here, Abundant Life failed in this first task.
Abundant Life’s first issue asserts the trial court erred in denying its TCPA
motion with respect to Headen’s breach of contract, promissory estoppel, and
negligent misrepresentation claims. It contends the claims fall within the “right to
free speech” or the “right to petition” prongs of the statute. We address each
argument in turn.
1. The claims do not implicate Abundant Life’s right of free speech
Abundant Life argues first that the claims at issue are subject to the TCPA’s
protection under the statute’s “right to free speech” umbrella. In the context of the
statute, that right means “communications related to ‘matters of public concern’”
which in turn is defined “to include an issue related to: a good, product, or service
in the marketplace.’” In re Lipsky, 460 S.W.3d 579, 586–87 (Tex. 2015) (quoting
TCPA §§ 27.005(b); 27.001(3), (7)(E)). Specifically, Abundant Life contends the
communications at issue relate to Headen’s “services in the marketplace.”
“Not all communications made in connection with a matter related to health
or safety, environmental, economic, or community well-being, or a good, product,
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or service in the marketplace will constitute the exercise of the right of free speech
under the TCPA.” Goldberg, 594 S.W.3d at 828. Instead, a “matter of public
concern” generally does not encompass purely private matters. Id.; Lei, 578 S.W.3d
at 715 (Private communications in connection with a business dispute do not involve
matters of public concern when the communications address only private economic
interests and make no mention of health or safety).
In support of its argument, Abundant Life directs us to Adams v. Starside
Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018), in which the supreme
court determined that defamatory communications made by an individual about a
homebuilder and neighborhood developer involved the developer’s services in the
marketplace. But the services at issue and the communications about them in Adams
referenced work for the residents of a residential development including a “common
area,” rather than just services provided to an individual. Id. at 895. The same is
not true here. Headen’s services were not provided to “the marketplace;” they were
provided privately, to Abundant Life. See Creative Oil & Gas, LLC v. Lona Hills
Ranch, LLC, 591 S.W.3d 127, 134 (Tex. 2019) (“The ‘in the marketplace’ qualifier
suggests that the communication about goods or services must have some relevance
to a wider audience of potential buyers or sellers in the marketplace, as opposed to
communications of relevance only to the parties to a particular transaction.”). We
conclude the trial court did not err in determining Abundant Life failed to
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demonstrate communications protected by the TCPA’s protection of the “right to
free speech.”
2. The claims do not implicate Abundant Life’s right to petition
Abundant Life argues Headen views the Harris County Lawsuit as part of
Abundant Life’s “overall strategy,” to harass and distress Headen, by terminating
him without cause. More specifically, Abundant Life contends Headen’s breach of
contract, promissory estoppel, and negligent misrepresentation claims—the only
claims at issue here—are “based on, relate to, or are in response to” the Harris
County Lawsuit.
Triggering the TCPA’s protection requires that the alleged communication
satisfying the TCPA’s definition of the “exercise of the right to petition” provide the
factual predicate for the challenged “legal action.” Dyer v. Medoc Health Services,
LLC, 573 S.W.3d 418, 429 (Tex. App.—Dallas 2019, pet. denied) (“In order to
trigger the TCPA’s protection, the ‘legal action’ must be ‘factually predicated on the
alleged conduct that falls within the scope of [the] TCPA’s definition of ‘exercise of
the right of free speech, petition, or association.’”) (quoting Grant v. Pivot Tech.
Sols., Ltd., 556 S.W.3d 865, 879 (Tex. App.—Austin 2018, pet. denied)). “Any
activities by the movant that are not a factual predicate for the non-movant’s claims
are not pertinent to our inquiry regarding whether the TCPA applies.” Riggs & Ray,
P.C. v. State Fair of Tex., No. 05-17-00973-CV, 2019 WL 4200009, at *4 (Tex.
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App.—Dallas Sept. 5, 2019, pet. denied) (mem. op.). In undertaking our inquiry,
we are mindful of our obligation to consider the pleadings in the light most favorable
to the non-movant and supportive of the conclusion that the non-movant’s claims
are not reliant on protected expression. Damonte v. Hallmark Fin. Servs., Inc., No.
05-18-00874-CV, 2019 WL 3059884, at *5 (Tex. App.—Dallas July 12, 2019, no
pet.) (mem. op.).
While Headen’s superseded petitions, as well as his live Fifth Amended
Petition, reference the Harris County Lawsuit, the specific claims at issue rest upon
Abundant Life’s a) breach of Headen’s consulting contracting3 by terminating it and
refusing to pay him; b) failure to pay Headen following termination of the consulting
contract (promissory estoppel); and, c) supply of false information regarding
Headen’s financial interests in his consulting and employment contracts (negligent
misrepresentation). Rather than communications “in or pertaining to” the Harris
County Lawsuit, we conclude the communications underlying these claims are
“based on, relate to, or are in response to” Headen’s termination, the event and
communications on which the claims are factually predicated. See Dyer, 573 S.W.3d
at 428; Riggs & Ray, P.C., 2019 WL 4200009, at *4; see also Clinical Pathology
Labs., Inc. v. Polo, No. 08-19-00067-CV, 2020 WL 4519803, at *7 (Tex. App.—El
3
Headen asserts he was a third-party beneficiary of the contract between Abundant Life and Headen
Consulting, which he frames as an “unregistered husband-wife partnership.”
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Paso Aug. 6, 2020, pet. filed) (mem. op.) (concluding lawsuit alleging retaliatory
discharge claim was predicated on discharge, rather than communications
predicating the discharge).
We decline to rely on Cavin v. Abbott, 545 S.W.3d 47 (Tex. App.—Austin
2017, no pet.) for the contrary conclusion as advocated by Abundant Life. In that
case, the Austin court concluded an abuse of process claim was factually predicated
on discovery subpoenas served by the non-movants. Id. at 65. That scenario
provides a far different analysis than claims dependent on termination of consultant
and employment contracts, despite the parties’ prior entanglement in acrimonious
litigation. We conclude Abundant Life failed to demonstrate Headen’s claims, as
TCPA “communications,” were factually predicated on a judicial proceeding and
thus fell within the TCPA’s protection of the right to petition.
Accordingly, we overrule Abundant Life’s first issue. In light of our
resolution of its first issue, we need not address the remaining issues. See TEX. R.
APP. P. 47.1. We AFFIRM.
/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE
200145F.P05
8
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ABUNDANT LIFE THERAPEUTIC On Appeal from the 68th Judicial
SERVICES TEXAS, LLC, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-18-15576.
No. 05-20-00145-CV V. Opinion delivered by Chief Justice
Burns. Justices Pedersen and Evans
THOMAS T. HEADEN, III, participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee THOMAS T. HEADEN, III recover his costs
of this appeal from appellant ABUNDANT LIFE THERAPEUTIC SERVICES
TEXAS, LLC.
Judgment entered December 11, 2020
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