Shyloa Seaman and M.O.R.E. Heart & Soul Counseling & Consulting, P.L.L.C. v. Jenna Gautreaux ( 2024 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00291-CV
________________
SHYLOA SEAMAN AND M.O.R.E. HEART & SOUL
COUNSELING & CONSULTING, P.L.L.C., Appellants
V.
JENNA GAUTREAUX, Appellee
________________________________________________________________________
On Appeal from the 58th District Court
Jefferson County, Texas
Trial Cause No. 23DCCV0284
________________________________________________________________________
MEMORANDUM OPINION
The underlying litigation arises from licensed professional counselor Shyloa
Seaman’s (“Seaman”) disclosure of Jenna Gautreaux’s (“Gautreaux”) alleged
confidential information to her foster children’s attorney ad litem. More specifically,
the disclosed information contains allegations of child abuse. In this interlocutory
appeal, we are asked to decide the applicability of the Texas Citizens’ Participation
Act (TCPA) to multiple causes of action arising from this disclosure. See Tex. Civ.
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Prac. & Rem. Code Ann. §§ 27.001–.011 (TCPA), 51.014(a)(12) (allowing for
interlocutory appeal of denial of TCPA motion to dismiss). The trial court denied
Appellants Shyloa Seaman’s and M.O.R.E. Heart & Soul Counseling & Consulting,
P.L.L.C.’s (“MORE”) TCPA Motion to Dismiss Appellee Gautreaux’s claims. See
id. § 27.005(a). In four issues, Appellants ask whether: (1) Gautreaux’s First
Amended Petition filed while the TCPA Motion to Dismiss was pending asserts the
same legal claims or theories based on the same essential facts; (2) Gautreaux’s
lawsuit was based on Appellants’ right of free speech; (3) Gautreaux failed to present
clear and specific evidence of a prima facie case for the essential elements of her
claims; and (4) Appellants established one or more affirmative defenses. For the
reasons discussed below, we affirm the trial court’s denial of Appellants’ TCPA
Motion to Dismiss in part and reverse in part.
I. Background
Seaman is a licensed professional counselor (“LPC”) who provided services
through MORE. On April 8, 2021, Gautreaux had a single counseling session with
Seaman. Before the session, Gautreaux completed paperwork, which addressed
patient-therapist confidentiality, and counselors’ mandatory reporting of child
abuse, among other things. Gautreaux provided an electronic signature on these
documents. The pre-counseling paperwork also included information about how
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clients could consent to release their confidential information in writing and
instructions on how to revoke that consent, which also had to be in writing.
During Gautreaux’s counseling session with Seaman, she told Seaman she
was a foster mother to three children under the age of three. According to Seaman,
Gautreaux sought help “because of violent urges and anxiety manifesting as anger.”
Gautreaux also reported to Seaman that “the violent urges resulted in her popping
the children in the face when all were screaming, but later, she recanted and said she
had popped the four-month-old twice.” Gautreaux asked Seaman if she had to report
that to authorities, and Seaman responded that as suspected child abuse, she must
report it as explained in the paperwork Gautreaux signed. According to Gautreaux,
Seaman did not make notes during the session but later created notes of their session.
After their counseling session, Seaman reported the suspected abuse to the
Department of Family and Protective Services (“the Department”) which
immediately removed the children. On April 29, 2021, Seaman emailed Gautreaux
and informed her the children’s attorney ad litem, Brian McEachern (“McEachern”),
contacted Seaman and wanted to talk about the foster children and the Department’s
investigation into the abuse allegations.1 Seaman told Gautreaux that she advised
McEachern she could not confirm or deny Gautreaux was a client due to
1
The record refers to McEachern as the children’s attorney ad litem in some
places, and in others, refers to him as the guardian ad litem.
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confidentiality, and he would need a confidentiality waiver signed by any client he
wanted to discuss. Seaman sent McEachern a confidentiality waiver and advised
Gautreaux that if she wanted Seaman to call him back, she could email Gautreaux
the form and to let her know. On May 3, 2021, Gautreaux responded by email,
requested a copy of her records, and conveyed she “will not sign a waiver at this
time, but will let you know if that changes.”
On May 5, 2021, at 11:46 a.m., Seaman again emailed Gautreaux to let her
know that McEachern emailed Gautreaux’s signed confidentiality waiver and asked
whether Gautreaux had signed it with a witness. She said she wanted to confirm,
since Gautreaux previously said she would not sign one but would notify Seaman if
she changed her mind. Seaman then said, “If you signed it with a witness, and would
like for me to release your records to Mr. McEachern, please let me know.” About
two hours later, Gautreaux responded, “I did sign the waiver with a witness and you
are free to release my session records to Mr. McEachern.” Within ten minutes,
Seaman answered and thanked Gautreaux for letting her know she “signed the
waiver and want me to release your confidential records.” The “Consent for Release
of Confidential Information” Gautreaux signed on May 4, 2021 authorized the
“exchange of pertinent information” between Seaman (and MORE) and McEachern
“concerning the treatment of Jenna Gautreaux.” It stated the disclosure was made
“as part of a pending CPS case and investigation” and specified the foster children.
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At 6:40 p.m. on May 6, Gautreaux again emailed Seaman and stated she was
uncomfortable with Seaman speaking with McEachern and “understood the waiver
to release documents only. Please do not talk about my session without getting my
express permission first.” Later that night, Seaman responded,
Thank you for informing me you do not want me to communicate with
Mr. McEachern any further and I will respect your request. However, I
want to clarify the release for release of confidential information you
signed does allow me to speak to Mr. McEachern. I informed you he
wanted to speak to me the same day I received his voicemail. In the
original email to you in reference to this attorney contacting me on Thu,
Apr 29, 2021 at 5:09 PM, I stated “An attorney, Mr. Bryan McEachern
left a voice-mail inquiring about you today. He stated he is assigned to
a case involving you and wants to speak with me. I told him I can not
confirm or deny that you were or were not a client due to
confidentiality. I informed him that I would need a confidentiality
waiver signed by ANY possible clients he is inquiring about in the
future before I can talk to him. I sent him a confidentiality waiver so
that he has one. If you want me to call him back, I can email you the
waiver also. Just let me know either way.” The reason for this email
was to notify you he wanted to speak to me as he stated on the
voicemail. He did not request your records on the voicemail. I did not
know you wanted your records released to Mr. McEachern until you
informed me on the phone yesterday. I asked you to follow up with your
request to send Mr. McEachern your records in an email to me, which
I did receive yesterday as well.
I also verbalized the nature of the voicemail from Mr. McEachern to
you on the phone yesterday and read you the text messages between
him and I which indicated he wanted to speak to me during our phone
conversation. As you were leaving my office today, I informed you that
since I have the consent for release of confidential information signed
and your records provided to him and yourself I would call Mr.
McEachern back while I had time during my lunch break. The consent
for release of confidential information you signed also states that you
“authorize the exchange of pertinent information” and “I understand
that no disclosure of information or records can be made without my
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written consent unless otherwise provided for in state and federal
regulations.” Please let me know if I can be of further assistance in this
matter.
This exchange reveals, and the parties agree, that Gautreaux visited Seaman’s office
on May 6 during lunch to retrieve her records.
The parties dispute, however, what took place during that visit. Gautreaux
claims when she arrived, Seaman was scanning her records to send them to
McEachern but had not yet sent them. Gautreaux claims she learned for the first time
that not only was Seaman planning to send the records to McEachern, she also
planned to speak with him about Gautreaux. Gautreaux asserted that upon learning
this, she told Seaman she did not want Seaman to speak with McEachern and orally
revoked her consent to send records. Gautreaux claims that despite acknowledging
the revocation, Seaman told her she would send the records to McEachern regardless
and intended to speak to him by phone, and Gautreaux reiterated she did not want
Seaman to speak with McEachern or consent to that conversation, but Seaman
insisted.
Seaman recalled the events differently. Seaman explained that on May 6,
Gautreaux came to her office to get a copy of her records, and Seaman “faxed the
records to Mr. McEachern, as requested by Ms. Gautreaux.” In her Affidavit
supporting the TCPA Motion to Dismiss, Seaman also states,
I verbalized to Ms. Gautreaux that I was going to call Mr. McEachern
since she and Mr. McEachern both had received her records, and she
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had signed the consent to release confidential information to Mr.
McEachern. She did not tell me she did not want me to talk to Mr.
McEachern at that time. On May 6, 2021, at 1:06 p.m., I called Mr.
McEachern and spoke to him about the suspected child abuse report I
filed with CPS. Several hours later, at 6:40 p.m., I received an email
from Ms. Gautreaux stating she was not comfortable with me talking to
Mr. McEachern.
Original Petition
On April 25, 2023, Gautreaux sued Seaman, MORE, and an unrelated
defendant, McEachern. In her Original Petition, Gautreaux pleads Gautreaux
received mental and emotional health counseling services from Seaman during one
visit that occurred on April 8, 2021. Gautreaux alleges that communications that
occurred during this relationship meant that Seaman and MORE owed her a duty of
confidentiality under the psychotherapist-patient privilege. Gautreaux alleges that
Seaman did not make contemporaneous notes during their visit but later created
notes and “that Defendant Seaman altered the records to reflect things that did not
occur to protect her stated position (which was, itself, without foundation).”
Gautreaux also pleads that “Seaman claimed Ms. Gautreaux disclosed details of
child abuse, and subsequently reported the claimed admission to the [Department],
which resulted in the immediate removal of three foster children then in Ms.
Gautreaux’s care.”
Gautreaux claims that about a week after the children were removed, she
spoke with McEachern, the attorney ad litem for the children. Gautreaux alleges
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McEachern recommended that she release her records of the visit with Seaman to
him, and if she did, he would be the only one to see them. Gautreaux claims that
based on McEachern’s representations, and knowing accurate records of her visit
with Seaman should not be problematic, on May 5, 2021, she signed a release
allowing Seaman to provide the records to McEachern.
Gautreaux pleadings assert she visited Seaman’s office on May 6, and when
she arrived, Seaman was scanning her medical records but had not sent them to
McEachern. Gautreaux alleges that she informed Seaman “she completely revoked
any consent to sharing her records with Defendant McEachern or anyone else.”
Gautreaux asserts that despite Seaman acknowledging her clear revocation, Seaman
said she would be sending the records to McEachern and calling him to speak to him
anyway although Gautreaux “adamantly stated that she did not want Defendant
Seaman to speak to Defendant McEachern and did not consent to such a
conversation.” Gautreaux also alleges that later on May 6, she emailed Seaman
“reiterating her refusal of consent to breaching any duty of confidentiality with
Defendant McEachern[,]” but Seaman admittedly “ignored oral and written
rescission of any consent and adamant protestations not to share information or
documents with Defendant McEachern by actually providing all the records to him
and talking to him at length about private and confidential matters she learned from
her counseling session with Ms. Gautreaux.” Gautreaux alleges that Seaman and
8
McEachern used “private and confidential information against Ms. Gautreaux
contrary to her rights, her declared position, and her interests.”
Gautreaux pleadings assert a negligence cause of action against Seaman and
plead vicarious liability and respondeat superior for MORE. She claims that Seaman
breached several duties, including: (1) the duty to follow ethical rules about
confidential matters and psychotherapist-patient privilege; (2) the standard of care
by failing to protect confidentiality and denied Gautreaux the right to withdraw her
consent to release information; and (3) Seaman “mishandled information and
misrepresented facts” to her client’s detriment. Gautreaux allege these breaches by
Seaman were negligent.
Seaman and MORE’s Answer
Seaman and MORE filed an answer to Gautreaux’s Original Petition asserting
a general denial. They also raise the affirmative defenses of: (1) statute of
limitations; (2) immunity under the Texas Family Code section 261.106 for good
faith report of alleged child abuse or neglect; and (3) immunity under the Texas
Health and Safety Code section 611.007(c) for disclosure made in good faith reliance
on an authorization since they “did not have notice of revocation of the consent.”
TCPA Motion to Dismiss
On June 26, 2023, Seaman and MORE filed their TCPA Motion to Dismiss
supported by evidence, including Seaman’s affidavit, records, and emails. Seaman
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and MORE assert that Gautreaux’s lawsuit involves “a health care liability claim
based on and in response to the exercise of the right of free speech[,]” and “[t]he
speech at issue concerns child abuse–specifically, abuse of foster children, which is
a matter of public concern.” They also assert that even if Gautreaux had clear and
specific evidence of a prima facie cause of action against them, suit should still be
dismissed based on: (1) immunity provided to people who report allegations of child
abuse; (2) statute of limitations; and (3) good faith reliance on an authorization to
release protected health information. Seaman and MORE contend the TCPA applies,
since “[a] person clearly exercises the right to freedom of speech when they report
concerns about child abuse, because this topic is a matter of concern to the public.”
They reason that the legislature had a strong public policy to protect children from
abuse and that as an LPC, Seaman was statutorily required to report suspected abuse.
Seaman and MORE argue that even if Gautreaux established a prima facie
case, the trial court should dismiss her lawsuit based on their affirmative defenses.
Defendants first argue they are immune from civil liability for reporting child abuse
under Texas Family Code section 261.106, which involves a “reasonable person
standard” acting in good faith and a strong public interest in protecting children from
physical and sexual abuse. Defendants argue that “Seaman acted in good faith in
reporting suspected child abuse to the Department and to the ad litem for the foster
children in Mrs. Gautreaux’s care to assist in the CPS investigation regarding the
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foster children.” Defendants contend they informed Gautreaux of the limits of their
confidentiality, which included reporting child abuse. Defendants explain that
Gautreaux saw Seaman for counseling and disclosed “being the foster parent to three
young children and admitted she would ‘pop’ kids in the face when they were all
screaming, although later in the session she stated she only ‘popped’ a four-month-
old baby in the face.” When Gautreaux asked Seaman if she had to report that,
Seaman said she had to report it and that she “subjectively had concerns for abuse
under the circumstances, and it was reasonable for her to report her concerns.”
Defendants argue that even if Seaman’s concerns were “misplaced,” she is
still entitled to immunity under Texas Family Code section 261.101(a). They also
assert that the one-year statute of limitations for slander and libel bars Gautreaux’s
claim “if the gravamen of the tort is alleged injury to personal reputation[,]” and the
cause of action accrued when the statement was published. They also argue there is
a two-year statute of limitations on health care liability claims, which they contend
applies to Plaintiff’s claim for personal injury resulting from medical malpractice.
Finally, Appellants argue that the claims based on Seaman’s disclosure to
McEachern were barred, because Seaman did not have written notice of revocation
of Gautreaux’s consent. They provide a copy of Seaman’s notice requiring any
revocation of consent to disclose to be in writing, which Gautreaux received and
relied on Texas Health and Safety Code section 611.007. Appellants argue Seaman
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received Gautreaux’s signed waiver of confidentiality on May 5, 2021, which
Gautreaux acknowledged she signed in an email. Seaman denies that Gautreaux
“verbally” revoked consent in person on May 6, 2021, before Seaman disclosed
information to McEachern. Instead, Defendants argue that Gautreaux stated she did
not want information released to McEachern via email on May 6, 2021, at 6:40 p.m.,
after Seaman already made a good faith disclosure earlier in the day.
Appellants support their TCPA Motion to Dismiss with Seaman’s affidavit
and records, including intake paperwork addressing the limits of confidentiality that
Gautreaux completed. Seaman asserts that Gautreaux said she was a foster parent to
three children under the age of three, and Gautreaux sought help “because of violent
urges and anxiety manifesting as anger.” Seaman also states that Gautreaux told her
“the violent urges resulted in her popping the children in the face when all were
screaming, but later, she recanted and said she popped the four-month-old twice.”
Gautreaux then immediately asked if Seaman had to report that, and Seaman said
she did “as indicated in the intake paperwork Ms. Gautreaux had signed.” Seaman
then asserts she called the child protective hotline and reported the suspected child
abuse, and she believed “in good faith” the report was necessary based on the
information she had, including knowledge of the violent urges and popping a four-
month-old in the face. In her affidavit, Seaman also outlines: (1) the timing and
circumstances of Gautreaux signing the release authorizing disclosure to McEachern
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for a pending CPS case and investigation involving the minor children; (2) Seaman
releasing the records and speaking to McEachern; and (3) Gautreaux revoking her
consent.
The records attached to Seaman’s Affidavit also include a HIPAA privacy
notice signed by Gautreaux, which require the revocation of consent to disclose to
be in writing, emails with Gautreaux’s signed “Consent for Release of Confidential
Information,” additional emails between Seaman and Gautreaux regarding
Gautreaux revoking consent, and emails between Seaman and Gautreaux discussing
McEachern requesting information from Seaman. Appellants scheduled the hearing
on the Motion to Dismiss for August 16, 2023.
First Amended Petition
On July 28, 2023, after Seaman and MORE filed their TCPA Motion to
Dismiss but nineteen days before the scheduled hearing, Gautreaux filed her First
Amended Petition. Gautreaux alleges that the facts and issues “relate back to
substantially the same facts and issues as set forth in Plaintiff’s Original Petition[,]”
but the First Amended Petition adds new factual allegations. The description of the
events and circumstances surrounding the visit and disclosure remain the same. She
alleges that Defendants “tricked” her “into signing defective releases for information
(ostensibly and solely for a family code case) concerning her counseling session with
Defendants Seaman and MORE.” Gautreaux further claims that despite her “clear
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revocation of any defective release,” the Defendants “conspired to publish” her
“confidential and private information” and accomplished this when they “tricked”
her into signing the release then “lied” about what they would do with the
information.
She also newly alleges that the release was “legally defective” and “lacked the
requisite detail under Tex. Health & Safety Code section 241.152(b), HIPAA, the
Texas Rules of Evidence, other rules, laws, and regulations.” Gautreaux asserts the
release failed to specify categories of information, and she believes it was limited to
records and specified “pertinent information” would be released, which she believes
only included the records.
Along with the negligence cause of action, where she claimed Seaman
breached the same duties as in the Original Petition, Gautreaux adds the following
causes of action against Seaman and MORE in the First Amended Petition: (1)
breach of fiduciary duty; (2) negligent misrepresentation; (3) medical malpractice;
(4) fraudulent misrepresentation; (5) fraud by nondisclosure; and (6) breach of
contract.
Gautreaux’s Response to TCPA Motion to Dismiss
Gautreaux filed a “Response to Defendants Seaman and M.O.R.E. Heart &
Soul Counseling & Consulting, P.L.L.C.’s Motion to Dismiss Pursuant to TCPA.”
In her Response, Gautreaux argues that Defendants failed to meet their burden of
14
showing that her claims are based on or in response to protected activity. Gautreaux
clarifies that her claims were unrelated to Seaman’s disclosure to the Department,
rather they were based on the disclosure to McEachern, and Defendants did not
distinguish between the two “or explain why Plaintiff’s legal action was based on,
or in response to either.” Gautreaux also asserts that the TCPA does not apply to
fraud claims, which included her fraudulent misrepresentation and fraud by
nondisclosure claims.
She also argues that Defendants’ TCPA Motion to Dismiss cannot apply to
the claims she added in the First Amended Petition, as they have addressed no cause
of action in the First Amended Petition. For example, “many of Plaintiff’s causes of
action are primarily based not on Defendants’ disclosure to Defendant McEachern,
but on Defendants’ misrepresentations to Plaintiff regarding the scope of the release
and other factors, none of which are addressed by Defendants.” Gautreaux further
asserted that where a defendant’s Motion to Dismiss fails to address claims brought
in a subsequent amended petition, it is proper to deny the motion to the extent it does
not adequately address claims in the amended petition. She responded that
Defendants must segregate allegations that fall within the TCPA from those that do
not, and if they do not, the trial court should deny the Motion to Dismiss. Gautreaux
argues that none of her claims are based solely on disclosures to McEachern; more
than disclosing patient information, the claims also involved false records,
15
misrepresenting the release’s scope, and providing a defective release for her to sign,
among other things.
As to Defendants’ affirmative defenses, Gautreaux contends that the one-year
statute of limitations for slander and libel did not bar her lawsuit, because the action
was primarily based on Defendants’ “failure to abide by their ethical and
professional obligations, which resulted in tangible and intangible harm” to her. She
also argues that the two-year statute of limitations for medical malpractice claims
does not bar her claims, since the cause of action accrued on May 6, 2021, when
Seaman improperly disclosed the information, and she filed her Original Petition on
April 25, 2023, within the two-year statute of limitations. Finally Gautreaux asserts
that Defendant Seaman’s immunity defenses do not apply because: (1) Seaman
cannot claim immunity based on good faith reliance on Gautreaux’s consent, and
regardless only three causes of action rely on disclosure to McEachern, including
breach of fiduciary duty, medical malpractice, and breach of contract; and (2)
Seaman cannot claim immunity based on a report of child abuse under Texas Health
and Safety Code section 261.106(a) since the disclosures exceeded what was
essential to report suspected abuse to someone outside the Department.
Gautreaux includes the following evidence to support her Response to
Defendants’ TCPA Motion to Dismiss: Affidavit of Jessica Eiseman, LPC, offering
an expert opinion about the professional duties, rules, and ethical obligations
16
governing an LPC’s conduct relating to patient privacy; Gautreaux’s Supporting
Affidavit outlining the events, timeline, and Seaman’s disclosure to McEachern;
MORE counseling records produced by Seaman, including the HIPAA release;
emails between Gautreaux and Seaman and McEachern regarding the waiver to
release “session records” to McEachern; Seaman’s chart notes dated May 5, 2021
at 12:57 p.m. and 1:47 p.m.; “Consent for Release of Confidential Information”
signed by Gautreaux and completed on May 4, 2021, releasing records to McEachern
for “part of a pending CPS case and investigation involving [foster children];” emails
between McEachern and the Department about the investigation; and Motion for
Intervention Hearing Transcript involving Gautreaux’s foster children dated May
14, 2021.
Reply in Support of Motion to Dismiss Pursuant to TCPA
Seaman and MORE filed a Reply in Support of Motion to Dismiss Pursuant
to TCPA. They argue that the factual allegations in Gautreaux’s First Amended
Petition are the same as in the Original Petition but acknowledge that Gautreaux
added new causes of action. Defendants argue, “[t]o the extent Plaintiff does assert
new claims in her Amended Petition, Defendant reserves the right to file a new
TCPA Motion to Dismiss within the 60-day period from the filing of Plaintiff’s
Amended Petition; however, Defendant believes the TCPA remains implicated by
the communication underlying Plaintiff’s current claims.” They note that all
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Gautreaux’s claims against Seaman and MORE are based on Seaman’s
communications with McEachern and that disclosing the records constituted a
“communication” as defined by the TCPA. They assert that even if Gautreaux orally
revoked consent, which Seaman denied, the TCPA was still implicated “because the
safety of foster children is a matter of public concern.” They re-urge their immunity
defenses based on Texas Health and Safety Code section 611.004 and Texas Family
code section 261.106. They also contend that Gautreaux failed to provide clear and
specific evidence of the essential elements of any claim and that her evidence was
not “clear and specific.” Finally, they object to certain statements in Gautreaux’s
affidavit, but the record does not show they ever obtained rulings on these
objections.
The trial court denied Seaman’s and MORE’s Motion to Dismiss, and this
interlocutory appeal followed. See Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.008(b), 51.014(a)(12).
II. Standard of Review
We review a trial court’s denial of a TCPA motion to dismiss de novo. See
Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018); Walker
v. Hartman, 516 S.W.3d 71, 79–80 (Tex. App.—Beaumont 2017, pet. denied). We
consider the pleadings, evidence we could consider under Rule 166a, and affidavits
stating facts on which liability or any defense is based in the light most favorable to
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the nonmovant. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); In re Lipsky,
460 S.W.3d 579, 587 (Tex. 2015) (orig. proceeding); see also Dall. Morning News,
Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019) (citation omitted). We also review de
novo whether the parties met their burdens of proof under section 27.005 of the
TCPA. See Landry’s, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 45–46 (Tex.
2021) (citation omitted); Hall, 579 S.W.3d at 377.
III. Analysis
A. TCPA Framework
The TCPA is meant “to encourage and safeguard the constitutional rights of
persons to petition, speak freely, associate freely, and otherwise participate in
government to the maximum extent permitted by law and, at the same time, protect
the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ.
Prac. & Rem. Code Ann. § 27.002. The TCPA instructs courts to liberally construe
it to ensure its stated purpose and intent are fully effectuated, but it “does not
abrogate or lessen any other defense, remedy, immunity, or privilege available under
other constitutional, statutory, case, or common law or rule provisions.” See id.§ 27.011(a), (b); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex.
2017) (citation omitted) (noting directive to liberally construe). Under the TCPA, a
party may move to dismiss a “legal action” that is “based on or is in response to a
party’s exercise of the right of free speech, right to petition, or right of
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association[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a); see also Creative Oil
& Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 131 (Tex. 2019). The TCPA
defines the “[e]xercise of the right of free speech” as “a communication made in
connection with a matter of public concern.” Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(3); see Montano v. Cronan, No. 09-20-00232-CV, 2021 WL 2963801, at
*4 (Tex. App.—Beaumont July 15, 2021, no pet.) (mem. op.).
The TCPA “provides a three-step process for the dismissal of a ‘legal action’
to which it applies.” Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex.
2021) (citing Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691 (Tex.
2018)); see also Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)–(d). First, the
movant bears the initial burden to show that the “legal action is based on or is in
response to[ ]” the movant’s exercise of: “(A) the right of free speech; (B) the right
to petition; or (C) the right of association[.]” Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(b)(1)(A)–(C). If the movant establishes that the nonmovant’s claim
implicates one of these rights, the burden shifts to the nonmovant to “‘establish[ ] by
clear and specific evidence a prima facie case for each essential element of the claim
in question.’” Lipsky, 460 S.W.3d at 587 (quoting Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(c)). A “prima facie case” means “evidence sufficient as a matter of
law to establish a given fact if it is not rebutted or contradicted.” Id. at 590 (citation
omitted). It is the “‘minimum quantum of evidence necessary to support a rational
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inference that the allegation of fact is true.’” Id. (quoting In re E.I. DuPont de
Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). Clear and specific evidence
means that the “plaintiff must provide enough detail to show the factual basis for its
claim.” Id. at 591. Finally, if the nonmovant establishes their prima facie case, the
burden shifts back to the movant to establish each essential element of an affirmative
defense by a preponderance of the evidence. Tex. Civ. Prac. & Rem. Code Ann.
§ 27.005(d); Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex. 2018); Coleman,
512 S.W.3d at 899.
B. Does the Appellee’s First Amended Petition, filed while Appellants’ TCPA
Motion to Dismiss was pending, assert the same legal claims based on the same
essential facts?
In their first issue, Appellants ask whether Gautreaux’s First Amended
Petition filed while their TCPA Motion to Dismiss was pending asserted the same
legal claims or theories based on the same essential facts as those from the Original
Petition. Gautreaux responds that Appellants’ Motion to Dismiss failed to address
any new claims raised in her First Amended Petition.
“[W]hen an amended or supplemental pleading includes new essential factual
allegations, it asserts a new legal action that triggers a new sixty-day period for filing
a motion to dismiss claims based on those new allegations.” Montelongo, 622
S.W.3d at 301. Likewise, “an amended or supplemental pleading that asserts a new
claim involving different elements than a previously asserted claim also asserts a
21
new legal action that triggers a new sixty-day period for filing a motion to dismiss
that new claim.” Id. Even so, “a new claim that does not involve different elements,
however, or that is merely a ‘subset’ of previously filed claims, does not assert a new
legal action.” Id. (citations omitted).
Here, Gautreaux’s Original Petition included a single “negligence” cause of
action and specifically alleged that Seaman violated various professional duties as
an LPC by disclosing certain confidential information. The elements of a negligence
claim are (1) a legal duty, (2) a breach of that duty, and (3) damages proximately
caused by the breach. See Elephant Ins. Co. v. Kenyon, 644 S.W.3d 137, 144 (Tex.
2022). Gautreaux complained that as a healthcare provider, Seaman “agreed to
follow all ethical rules concerning confidential matters and the psychotherapist-
patient privilege[,]” and “accepted the duty to act in her client’s best interest rather
than her own.” Further, she complained that Seaman breached the standard of care
by: (1) failing to protect patient confidentiality and denying Gautreaux the right to
withdraw her consent; and (2) mishandling information and misrepresenting facts to
her client’s detriment. Gautreaux asserted that Seaman’s breaches were the
proximate cause of her injuries.
Gautreaux’s First Amended Petition asserted multiple causes of action against
Appellants, including breach of fiduciary duty, negligent misrepresentation, medical
malpractice, fraudulent misrepresentation, fraud by nondisclosure, and breach of
22
contract. To prevail on a breach of fiduciary duty claim, a plaintiff must prove (1)
the existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4)
damages. First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214,
220 (Tex. 2017); Webb v. Crawley, 590 S.W.3d 570, 586–87 (Tex. App.—Beaumont
2019, no pet.). The requisite elements of a negligent misrepresentation claim include
(1) a representation made by a defendant in the course of his business or in a
transaction in which he has a pecuniary interest, (2) the defendant supplies “false
information” for the guidance of others in their business, (3) the defendant did not
exercise reasonable care or competence in obtaining or communicating the
information, and (4) the plaintiff suffers pecuniary loss by justifiably relying on the
representation. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546
S.W.3d 648, 653–54 (Tex. 2018) (citation omitted). To prevail on a medical
malpractice claim, “a plaintiff must establish the elements of negligence[,]” which
include the existence of a legal duty, breach of the duty, and damages proximately
caused by the breach. Windrum v. Kareh, 581 S.W.3d 761, 768 (Tex. 2019) (citations
omitted). A species of common-law fraud, fraudulent misrepresentation or
fraudulent inducement, requires that a plaintiff prove (1) a material
misrepresentation, (2) that was knowingly false or asserted without knowledge of its
truth, (3) made with the intention that the other party act on it, (4) which the other
party relied on, and (5) which caused injury. Anderson v. Durant, 550 S.W.3d 605,
23
614 (Tex. 2018). “Because fraudulent inducement arises only in the context of a
contract, the existence of a contract is an essential part of its proof.” Id. (citation
omitted). Fraud by nondisclosure, another subcategory of fraud, happens when a
party has a duty to disclose information and fails to disclose it. Bombardier
Aerospace Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 219 (Tex. 2019).
To prevail on a fraud by nondisclosure claim, a plaintiff must show (1) the defendant
deliberately failed to disclose material facts, (2) the defendant had a duty to disclose
those facts to plaintiff, (3) the plaintiff was ignorant of the facts and did not have an
equal opportunity to discover them, (4) the defendant intended the plaintiff to act or
refrain from acting based on the nondisclosure, and (5) the plaintiff relied on the
nondisclosure, resulting in injury. Id. at 219–220. Finally, elements of a breach of
contract cause of action are: “(1) the existence of a valid contract; (2) the plaintiff
performed or tendered performance as the contract required; (3) the defendant
breached the contract by failing to perform or tender performance as the contract
required; and (4) the plaintiff sustained damages as a result of the breach.” USAA
Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018) (citations
omitted).
Appellants argue that even though Gautreaux added new causes of action in
her First Amended Petition, they were based on the same underlying facts and
communications as the Original Petition. Still, in Montelongo v. Abrea, the Supreme
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Court of Texas addressed whether an amended petition asserting a new claim “based
on the same essential factual allegations” in the prior petition asserts a new “legal
action” such that a new sixty-day TCPA dismissal deadline is triggered as to the new
claims. See 622 S.W.3d at 299. The Court held that even if based on the same
essential factual allegations, “an amended or supplemental pleading that asserts a
new claim involving different elements than a previously asserted claim also asserts
a new legal action that triggers a new sixty-day period for filing a motion to dismiss
that new claim.” See id. at 301.
As outlined above, except Gautreaux’s medical malpractice claim, the causes
of action added in her First Amended Petition included different requisite elements
than the negligence claim in her Original Petition, the claim challenged in
Appellants’ TCPA Motion to Dismiss. See id. The medical malpractice claim
consisted of the same requisite elements and factual allegations as her prior
negligence claim such that it did not trigger a new dismissal deadline. See Windrum,
581 S.W.3d at 768. Since the other causes of action, including breach of fiduciary
duty, negligent misrepresentation, fraudulent misrepresentation, fraud by
nondisclosure, and breach of contract consisted of different elements, the First
Amended Petition constituted a new “legal action” and triggered a new deadline for
Appellants to file a TCPA motion to dismiss those new claims. See Montelongo, 622
S.W.3d at 301. In Seaman’s and MORE’s Reply in Support of Motion to Dismiss,
25
they argued that to the extent Gautreaux asserted new claims in the First Amended
Petition, they reserved the right to file a new TCPA Motion to Dismiss within sixty
days from the filing of Gautreaux’s First Amended Petition. The record before us
does not show that the Appellants filed a new or amended TCPA motion to dismiss
the new claims. We sustain Appellants’ first issue as it relates to the negligence and
medical malpractice claim against Seaman but overrule it as to the other causes of
action asserted in Gautreaux’s First Amended Petition.
C. TCPA Applicability
In their second issue, Appellants ask whether Gautreaux’s lawsuit is based on
the exercise of Seaman’s right of free speech. As we have already determined, when
Gautreaux asserted new claims that had different essential elements, her First
Amended Petition constituted a “new legal action” as to those claims. Appellants’
TCPA Motion to Dismiss did not address those new claims. In determining whether
Appellants met their burden to demonstrate that Gautreaux’s medical malpractice
claim was based on Seaman’s exercise of right of free speech, we consider the
pleadings, evidence a court could consider under Texas Rule of Civil Procedure
166a, and any supporting and opposing affidavits. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.006(a). “We decide the applicability of the TCPA based on ‘a holistic
review’ of the pleadings and supporting and opposing affidavits.” Montano, 2021
WL 2963801, at *4 (citing Adams, 547 S.W.3d at 897).
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The TCPA defines the “exercise of the right of free speech” as “a
communication made in connection with a matter of public concern.” Tex. Civ. Prac.
& Rem. Code Ann. § 27.001(3). The TCPA further defines “matter of public
concern” as:
. . . a statement or activity regarding:
(A) a public official, public figure, or other person who has drawn
substantial public attention due to the person’s official acts, fame,
notoriety, or celebrity;
(B) a matter of political, social, or other interest to the community; or
(C) a subject of concern to the public.
Id. § 27.001(7). “The phrase ‘matter of public concern’ commonly refers to matters
‘of political, social, or other concern to the community,’ and a subject of general
interest and of value and concern to the public, as opposed to purely private
matters.” Montano, 2021 WL 2963801, at *4; see also Creative Oil, 591 S.W.3d
at 135 (quoting Brady v. Klentzman, 515 S.W.3d 878, 884 (Tex. 2017)). The statute
defines “communication” as “the making or submitting of a statement or document
in any form or medium, including oral, visual, written, audiovisual, or
electronic.” Tex. Civ. Prac. & Rem. Code Ann. § 27.001(1).
The record before us shows that the complained-of communications from
Seaman to McEachern included information about potential child abuse by
Gautreaux regarding foster children in her care, specifically “a pending CPS case
and investigation involving [C.L.] and [S.L.]” Plaintiff alleges that “Seaman claimed
Ms. Gautreaux disclosed details of child abuse,” which she subsequently reported to
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the Department. Gautreaux also pleaded that McEachern reached out to her and
Seaman about the alleged abuse. Her pleading reveals that Gautreaux’s primary
complaint was that Seaman spoke with McEachern and released certain records. The
record contains Gautreaux’s signed “Consent for Release of Confidential
Information,” which specified the disclosure was for the pending CPS case and
investigation. Appellants argue there is a strong public policy to protect children
from abuse.
The Supreme Court of Texas has recognized “the public’s strong interest in
helping to eradicate child abuse” and explained that “[t]he public has a strong interest
in protecting children, especially . . . against physical and sexual abuse.” Bird v.
W.C.W., 868 S.W.2d 767, 772 (Tex. 1994); see Golden Spread Council, Inc. No. 462
of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 292 (Tex. 1996) (“The public has a
strong interest in protecting children from abuse[.]”). “The public policy of this state
is to: ... provide a safe, stable, and nonviolent environment for the child....” Tex.
Fam. Code Ann. § 153.001(a)(2); In re A.V., 113 S.W.3d 355, 361 (Tex. 2003).
Given this recognized public interest in protecting children from abuse, we agree
that an allegation of possible child abuse by a foster parent is a “subject of concern
to the public[,]” and thus constitutes “a matter of public concern.” See Tex. Civ.
Prac. & Rem. Code Ann. § 27.001(7)(C). Other courts have determined that
communications about a child’s possible abuse constituted matters of public
28
concern. See Children’s Lighthouse, Spring v. Davison, No. 13-22-00452-CV, 2023
WL 4357261, at *3–4 (Tex. App.—Corpus Christi-Edinburg July 6, 2023, no pet.)
(mem. op.) (concluding claim was based on “a subject of concern to the public”
where mother alleged abuse by daycare facility); de la Torre v. de la Torre, 613
S.W.3d 307, 312 (Tex. App.—Austin 2020, no pet.) (concluding under prior version
of TCPA that statements involving “the welfare of a child and allegations of child
abuse” are matters of public concern); Cunningham v. Waymire, 612 S.W.3d 47, 58
(Tex. App.—Houston [14th Dist.] 2019, no pet.) (same under prior version of TCPA
where grandfather defendant made statements about potential abuse of his
grandson); Backes v. Misko, 486 S.W.3d 7, 18 (Tex. App.—Dallas 2015, pet.
denied) (same under prior version of TCPA where defendant’s statement “indicated
a child was suffering abuse from a parent.”).
Based on this record, we conclude that Appellants met their burden to
demonstrate the legal action brought by Gautreaux for her negligence and medical
malpractice claim “is based on or is in response to” Seaman’s “exercise” of her “right
of free speech.” See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1)(A). Thus, the
TCPA applies to this legal action. See id. We sustain issue two as it relates to her
negligence and medical malpractice claim. Since Appellants’ TCPA Motion to
Dismiss did not address Gautreaux’s other causes of action asserted in the First
Amended Petition, we conclude Appellants failed to meet their burden of showing
29
that the TCPA applies to Gautreaux’s breach of fiduciary duty, negligent
misrepresentation, fraudulent misrepresentation, fraud by nondisclosure, and breach
of contract claims. Accordingly, the burden never shifted to Gautreaux to present a
prima facie case for the essential elements of her breach of fiduciary duty, negligent
misrepresentation, fraudulent misrepresentation, fraud by nondisclosure, and breach
of contract claims. We overrule this issue as it pertains to those additional claims.
C. Prima Facie Case
In issue three, Appellants contend Gautreaux failed to present clear and
specific evidence of a prima facie case for the essential elements of her claims.
Having concluded that the TCPA applies to Gautreaux’s negligence and medical
malpractice claim against Appellants, we now turn to whether Gautreaux met her
burden to establish a prima facie case for the essential elements of that cause of
action by clear and specific evidence. See Lipsky, 460 S.W.3d at 587; see also Tex.
Civ. Prac. & Rem. Code Ann. § 27.005(c). We consider the pleadings, any evidence
we could consider under Rule 166a, and affidavits in the light most favorable to the
nonmovant. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); Lipsky, 460 S.W.3d
at 587; Push Start Indus., LLC v. Hous. Gulf Energy Corp., No. 09-19-00290-CV,
2020 WL 7041567, at *3 (Tex. App.—Beaumont Nov. 30, 2020, no pet.) (mem.
op.) (citations omitted).
30
Appellants contend that Gautreaux’s evidence is not clear and specific “and is
rife with conclusory statements—especially with regard to damages[.]” They argue
that Gautreaux did not present evidence that Seaman breached the applicable
standard of care for an LPC, among other things. They assert the LPC expert
affidavit failed to (1) mention Seaman or MORE, (2) conclude Seaman’s conduct
breached an applicable standard, or (3) opine that Gautreaux sustained damages
proximately caused by the breach.
As explained above, a medical malpractice claim is a negligence claim. See
Windrum, 581 S.W.3d at 768. To prevail on a medical malpractice claim, “a plaintiff
must establish the elements of negligence[,]” which include the (1) existence of a
legal duty, (2) breach of the duty or standard of care, and (3) damages proximately
caused by the breach. See id. (citations omitted). Since Appellants showed the TCPA
applied to Gautreaux’s medical malpractice claim, Gautreaux needed to establish
“by clear and specific evidence a prima facie case for each essential element” of her
medical malpractice claim. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
Gautreaux’s First Amended Petition alleged that Seaman “is a health care
provider who accepted a duty to act as a reasonably prudent healthcare provider[,]”
“agreed to follow all ethical rules concerning confidential matters and the
psychotherapist-patient privilege[,]” and “accepted the duty to act in her client’s best
interest rather than her own.” Gautreaux alleged that Seaman “committed an
31
unauthorized disclosure” of her medical information after she revoked consent,
“transmitted false, misleading, and/or inaccurate records” to McEachern, and “used
private and confidential information against” her contrary to her rights. She also
alleged that the “various breaches of duties . . . caused her a series of tangible and
intangible injuries.” Gautreaux pleaded that Seaman and MORE “deviated from the
appropriate standard of care by submitting false records” of her counseling session,
misleading her about what information would be sent to McEachern under the
release she signed, and “by engaging in the unauthorized release” of her
“confidential information.” She also claimed Seaman and MORE’s actions
proximately caused her injury, and to reasonable medical probability, she would not
have suffered harm but for their professional negligence.
Finally, Gautreaux pleaded she was entitled to damages based on an amount
to be proven at trial. Gautreaux did not specify in her petition how she was damaged
by Appellants. The evidence and pleadings revealed that on April 8, 2021, Seaman
reported the suspected abuse to the Department, and the Department immediately
removed the three foster children.
Seaman stated in her affidavit that after Gautreaux disclosed popping the
children during their counseling session, on April 8, 2021, she reported that
suspected child abuse to the Department. Seaman also asserted that on May 5, 2021,
she received a Consent for Release of Confidential Information signed by Gautreaux
32
to disclose information to McEachern “for a pending CPS case and investigation
involving minor children.” Seaman stated that on May 6, 2021, Gautreaux came to
the office to retrieve her records, but she denied that Gautreaux ever orally revoked
her consent or told Seaman she did not want her to speak to McEachern. Seaman
asserted she sent the records to McEachern, and she spoke to him that afternoon
at 1:06 p.m. about the suspected child abuse report she made to CPS. She did not
receive an email from Gautreaux until 6:40 p.m. instructing her not to speak with
McEachern. The record includes a corresponding email attached as evidence to
Appellants’ TCPA Motion to Dismiss.
Gautreaux’s Response included the affidavit of LPC Jessica Eiseman, who
outlined the professional rules and ethical duties of counselors. She claimed that
LPCs “are required to respect their clients’ privacy and protect their confidential
information.” Eiseman asserted that an LPC is only allowed to report suspected child
abuse to the Department, and any disclosure to anyone else would require a written
release of information that must meet certain legal requirements. Eiseman also
claimed that if the form is intended to permit the LPC to speak to someone about a
patient rather than just transmit documents, the form’s language should reflect that.
Eiseman stated that it “is unethical for an LPC to represent to a patient that they will
disclose only the patient’s records, and then verbally discuss the patient’s
confidential therapy session.” According to Eiseman, if the LPC knows the patient
33
mistakenly thinks they are only authorizing disclosure of records, the LPC has a duty
to correct the misunderstanding. Eiseman also stated that if a client orally revoked a
release, the therapist should obey the client’s wishes and ask for a written revocation;
even absent written revocation, the therapist should not release information after
being told orally the patient revoked the release.
In her affidavit, Gautreaux confirmed she entered into a counseling
relationship with Seaman and asserted that Seaman’s actions “resulted in tangible
and intangible harm” and she “suffered pecuniary loss by relying on the statements
made by Defendant Seaman.” Gautreaux disputed Seaman’s version of events and
claimed that when she learned on May 6 that Seaman planned to speak with
McEachern, she told Seaman she did not consent to that and orally revoked her
consent to share records with him. Gautreaux attached records from the Department
related to the investigation, among other things. The Department emails showed that
McEachern tried to obtain an investigation report into the abuse allegations. The
Department responded that the investigation was conducted by “licensing and it is
not considered CPS[,]” and they could not access the investigation which was
marked “sensitive.” Still, the Department emails indicated “that they found reason
to believe for physical abuse and the severity is marked serious[,]” given the baby’s
age and that it was “popped” in a “vital organ area.” Further, the email explained a
witness would testify they are closing the foster home due to this incident.
34
“Under the Act, ‘the evidence must be sufficient to allow a rational inference
that some damages naturally flowed from the defendant’s conduct.’” USA Lending
Group, Inc. v. Windstead PC, 669 S.W.3d 195, 202 (Tex. 2023) (quoting S&S
Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018)).
Evidence “‘devoid of any specific facts illustrating how [the defendant’s] alleged
remarks about [the plaintiff’s] activities actually caused such losses[]’” does not
satisfy the TCPA’s requirements. See id. (quoting Lipsky, 460 S.W.3d at 593).
Examining the evidence and pleadings in the light most favorable to
Gautreaux as the nonmovant, she has failed to establish a prima facie case for each
essential element of her medical malpractice claim by “clear and specific evidence.”
See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.005(c), 27.006(a); see also Windrum,
581 S.W.3d at 768 (requisite elements of medical malpractice action). Even
accepting Gautreaux’s version of events as outlined in her affidavit and the standards
of care outlined by Eiseman, the evidence fails to explain how Seaman’s disclosure
to McEachern proximately caused any damages or what those damages were. See
Winstead, 669 S.W.3d at 202. Rather, the evidence showed that Seaman’s disclosure
to the Department resulted in the children’s immediate removal from her home, and
that the ensuing investigation led to the closure of the foster home. In terms of her
damages, Gautreaux merely states that she suffered “tangible and intangible harm”
and “pecuniary losses” to be determined at trial. These are conclusory and
35
generalized statements, “‘devoid of any specific facts illustrating how’” Seaman’s
disclosure to McEachern “‘actually caused such losses.’” See id. (quoting Lipsky,
460 S.W.3d at 593). Gautreaux’s evidence was not sufficient as a matter of law to
establish damages if not rebutted or contradicted. See Lipsky, 460 S.W.3d at 590.
Accordingly, absent “clear and specific evidence” that Seaman’s disclosure to
McEachern proximately caused damages to Gautreaux, we hold that Gautreaux
failed to establish a prima facie case for her negligence and medical malpractice
claim. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); Winstead, 669 S.W.3d
at 202; Lipsky, 460 S.W.3d 590; see also Windrum, 581 S.W.3d at 768. We sustain
issue three.
D. Affirmative Defenses
In issue four, Appellants assert they established affirmative defenses to
Gautreaux’s claims. Since Gautreaux failed to meet her burden of establishing a
prima facie case for the essential elements of her negligence and medical malpractice
claim by clear and specific evidence, the burden did not shift back to Appellants to
establish an affirmative defense on the negligence and medical malpractice claim.
See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)–(d); Youngkin, 546 S.W.3d at
679–80 (discussing TCPA’s burden shifting); Coleman, 512 S.W.3d at 899 (same).
Accordingly, we need not address this issue on the negligence and medical
malpractice claim. See Tex. R. App. P. 47.1.
36
IV. Conclusion
We conclude that Appellants’ TCPA Motion to Dismiss established the
TCPA’s applicability to Gautreaux’s negligence and medical malpractice claim, but
Gautreaux failed to meet her burden of establishing a prima facie case by clear and
specific evidence of each essential element of her negligence and medical
malpractice claim. Thus, the trial court erred in denying Appellants’ TCPA Motion
to Dismiss Gautreaux’s negligence and medical malpractice claim. With respect to
the new causes of action raised in Gautreaux’s First Amended Petition, including
breach of fiduciary duty, negligent misrepresentation, fraudulent misrepresentation,
fraud by nondisclosure, and breach of contract, we conclude that Appellants’ TCPA
Motion to Dismiss failed to address these causes of action. Accordingly, Appellants
failed to establish the TCPA’s applicability as to those claims. Therefore, we
conclude the trial court did not err by denying Appellants’ TCPA Motion to Dismiss
with respect to the breach of fiduciary duty, negligent misrepresentation, fraudulent
misrepresentation, fraud by nondisclosure, and breach of contract causes of action.
We affirm the trial court’s Order denying Appellants’ TCPA Motion to
Dismiss Gautreaux’s breach of fiduciary duty, negligent misrepresentation,
fraudulent misrepresentation, fraud by nondisclosure, and breach of contract causes
of action. We reverse the trial court’s Order denying the TCPA Motion to Dismiss
Gautreaux’s negligence and medical malpractice claim and remand the case with
37
instructions to award court costs and reasonable attorney’s fees to Appellants but
only as to the negligence and medical malpractice claim and to the extent consistent
with this opinion. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a).
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
W. SCOTT GOLEMON
Chief Justice
Submitted on June 24, 2024
Opinion Delivered October 10, 2024
Before Golemon, C.J., Johnson and Chambers, JJ.
38