Elliott v. S&S Emergency Training Solutions, Inc.

559 S.W.3d 568
CourtCourt of Appeals of Texas
DecidedMay 16, 2017
DocketNo. 05–16–01373–CV
StatusPublished
Cited by4 cases

This text of 559 S.W.3d 568 (Elliott v. S&S Emergency Training Solutions, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elliott v. S&S Emergency Training Solutions, Inc., 559 S.W.3d 568 (Tex. Ct. App. 2017).

Opinion

Opinion by Justice Boatright

Appellee S & S Emergency Training Solutions, Inc. d/b/a Emergency Medical Training Services ("EMTS") sued appellant Sheila Elliott for breach of contract. Elliott moved to dismiss EMTS's suit under the Texas Citizens Participation Act ("TCPA"). In a single issue, Elliott contends the trial court erred by denying her motion.

We reverse the trial court's denial of the motion to dismiss. We remand the case to the trial court to determine the amounts to be awarded Elliott under the TCPA, and to order dismissal of the suit with prejudice. In a separate order, we deny EMTS's motion to lift stay.

BACKGROUND

On July 24, 2014, EMTS and Arlington Career Institute ("ACI") entered into a written agreement creating the EMTS/ACI Paramedic Education Consortium ("Consortium"). The purpose of that agreement ("Consortium Agreement") was to create an entity that could sponsor a paramedic education program in accordance with the Standards and Guidelines for the Accreditation of Educational Programs in the Emergency Medical Services Professions ("Guidelines") of the Commission on Accreditation of Allied Health Education Programs ("CAAHEP"). EMTS could not offer an accredited paramedic education program that met CAAHEP's standards without a consortium sponsor.

Elliott and the Consortium entered into two nondisclosure agreements ("NDAs"), dated August 20, 2014, and November 6, 2015, respectively. EMTS sued Elliott for breach of the NDAs, alleging that she disclosed confidential information in the following communications:

• a complaint to the Texas Department of State Health Services on December 11, 2015, with copies sent to the Committee on Accreditation of Educational Programs for the Emergency Medical Services Professions and the National Registry of Emergency Technicians;
*573• a complaint to the Texas Department of State Health Services on May 15, 2016;
• a complaint to the Accrediting Commission on Career Schools and Colleges ("ACCSC") on June 30, 2016; and
• Facebook postings on June 29, 2016.

EMTS also sought and obtained an ex parte temporary restraining order and a temporary injunction prohibiting Elliot's use, disclosure, or communication of "EMTS and/or the Consortium's" confidential information. Elliott then filed two motions to dismiss EMTS's suit, one under the TCPA, and another Texas Rule of Civil Procedure 91a.

After a hearing, the trial court denied both of Elliott's motions to dismiss. She appeals only the denial of her TCPA motion. In this Court, EMTS has filed a "Motion to Lift Stay to File Motion for Contempt and Sanctions and Motion to Seal Court Records." The parties addressed the merits of this motion at oral argument in response to this Court's request.

APPLICABLE LAW AND STANDARD OF REVIEW

The TCPA allows a party to file a motion to dismiss 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) (West 2015). The court may not dismiss an action if the nonmovant "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). But even if the nonmovant satisfies that requirement, the court must dismiss the legal action if the movant establishes by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claim. Id. § 27.005(d). We review de novo the trial court's determination of whether a party met its burden of proof under section 27.005. Campbell v. Clark , 471 S.W.3d 615, 623 (Tex. App.-Dallas 2015, no pet.). We also review de novo questions of statutory construction. Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc. , 402 S.W.3d 299, 304-05 (Tex. App.-Dallas 2013, pet. denied).

DISCUSSION

A. Step One: Elliott's Burden

We apply a two-step process in reviewing the trial court's order regarding a TCPA motion. In re Lipsky , 460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). Under the first step, we determine whether Elliott showed by a preponderance of the evidence that EMTS's claim is based on, relates to, or responds to her exercise of the rights of free speech, petition, or association. Id. According to the TCPA, the exercise of the right of free speech "means a communication made in connection with a matter of public concern." TEX. CIV. PRAC. & REM. CODE § 27.001(3). A "matter of public concern" includes "an issue related to health or safety." Id. § 27.001(7)(A). EMTS alleges in its petition that it "provides training to first responders so that they can become certified and/or licensed paramedics," and the record reflects that Elliott's communications addressed alleged deficiencies in the certification process.1

*574Because Elliott's communications were about an issue related to health and safety, they were about a matter of public concern, and they were an exercise of the TCPA right to free speech. EMTS's breach of contract claim is about these communications. Consequently, Elliott has shown by a preponderance of the evidence that EMTS's claim is based on, relates to, or responds to her exercise of a TCPA right. She satisfied her burden in the first step of our TCPA analysis.

EMTS argues, however, that Elliott gave up her TCPA rights when she signed the NDAs. In support of its argument, EMTS cites an opinion of the Massachusetts Supreme Judicial Court, Duracraft Corp. v. Holmes Products Corp. , 427 Mass. 156, 691 N.E.2d 935 (1998). The Massachusetts law at issue in Duracraft requires that the "movant who asserts protection for its petitioning activities would have to make a threshold showing through the pleadings and affidavits that the claims against it are based on the petitioning activities alone and have no substantial basis other than or in addition to the petitioning activities." Id.

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Bluebook (online)
559 S.W.3d 568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-ss-emergency-training-solutions-inc-texapp-2017.