Opinion issued December 31, 2019
In The
Court of Appeals For The
First District of Texas ———————————— Nos. 01-18-00508-CV, 01-18-00510-CV ——————————— KAREN SANDERS, THEODORE CHASE, KEVIN PEVER, HASSAN GEBARA, LINDSEY VILLANUEVA, TAMISHA SHELTON, KENNETH WILLIAMS, TIMISHA KIMBLE, ROSEMARY EJIOFOR, and ROSEMARY EJIOFOR AS NEXT FRIEND OF DESTINY EJIOFOR, Appellants V. KANTI BANSAL D/B/A SIGNATURECARE EMERGENCY CENTER, ROUND TABLE PHYSICIANS GROUP, PLLC, CHYNA CORALLINO, and LISA SNYDER, Appellees/Cross Appellants
V.
KAREN SANDERS, THEODORE CHASE, KEVIN PEVER, HASSAN GEBARA, LINDSEY VILLANUEVA, TAMISHA SHELTON, KENNETH WILLIAMS, TIMISHA KIMBLE, and ROSEMARY EJIOFOR, Cross-Appellees On Appeal from the 240th District Court Fort Bend County, Texas Trial Court Case Nos. 17-DCV-239861, 17-DCV-239862
MEMORANDUM OPINION
In two separate appeals which we consider together, appellants/cross-
appellees Karen Sanders, Theodore Chase, Kevin Pever, Hassan Gebara, Lindsey
Villanueva, Tamisha Shelton, Kenneth Williams, Timisha Kimble, and Rosemary
Ejiofor in both her individual capacity and as next friend of her daughter, Destiny
Ejiofor (“the Patients”), appeal the trial court’s dismissal of their fraudulent lien
suits against appellees/cross-appellants Kanti Bansal d/b/a SignatureCare
Emergency Center, Round Table Physicians Group, PLLC, Chyna Corallino, and
Lisa Snyder (collectively, the Providers), pursuant to the Texas Citizen’s
Participation Act (TCPA). In a single issue, the Patients argue that the trial court
erred in granting the Providers’ motions to dismiss because (1) the Providers did
not carry their burden to show that the Patients’ claims are based on TCPA-
protected communications, (2) the Patients’ claims are excluded from the TCPA’s
dismissal procedures under the commercial speech exemption, and (3) the Patients
presented sufficient evidence to establish a prima facie case to support their claims.
2 The Providers assert in a single issue on cross-appeal in the Sanders case
that the trial court abused its discretion in determining the amount of attorney’s
fees and sanctions it awarded them.
We reverse the trial court’s orders dismissing the Patients’ cases and
awarding attorney’s fees and sanctions, we dismiss as moot the Providers’ sole
issue on cross-appeal, and we remand the cases to the trial court for proceedings
consistent with this opinion.
Background
On various dates between December 2014 and November 2016, each of the
Patients was treated at SignatureCare Emergency Center, an emergency medical
care facility, by physicians working together as Round Table Physicians Group
PLLC, for injuries sustained in separate car accidents. Shortly after each Patient
was treated, both SignatureCare and Round Table, through their representatives
Chyna Corallino and Lisa Snyder, filed individual “hospital liens” to secure
payment for their medical services from any lawsuit, or the proceeds or settlement
therefrom, that the Patients file against the parties responsible for the accidents that
caused their injuries, pursuant to Texas Property Code chapter 55. See TEX. PROP.
CODE ANN. § 55.002(a) (stating that, subject to certain conditions, hospital has lien
on cause of action of patient who receives hospital services for injuries caused by
accident attributed to another’s negligence).
3 After she was given notice of the hospital liens, Rosemary Ejiofor filed two
separate fraudulent lien suits against appellees Dr. Kanti Bansal d/b/a
SignatureCare Emergency Center, Round Table Physicians Group, and Chyna
Corallino—one in her own right, and the other as next friend of her daughter,
Destiny. Not long thereafter, on various dates between February and March 2017,
each of the remaining Patients, represented by the same attorney, filed a separate,
virtually identical, suit against Dr. Bansal d/b/a SignatureCare Emergency Center,
Round Table Physicians Group, and Lisa Snyder.
The petitions in each of the ten lawsuits alleged that the Providers filed the
hospital liens with the knowledge that they were not eligible to do so because they
are not “hospitals” or “emergency medical services providers” as those terms are
defined by the hospital lien statute, see TEX. PROP. CODE ANN. § 55.001(2), (3)
(setting out definitions), and that this violated Texas Civil Practice & Remedies
Code section 12.002, see TEX. CIV. PRAC. & REM. CODE ANN. § 12.002(a), (b)
(stating that person is liable for making, presenting, or using document knowing
that it is fraudulent lien, if that person intended for document to be given same
legal effect as court record or document and intended to cause another person
financial or physical injury, or mental anguish or emotional distress).
On May 8, 2017, the Providers jointly filed TCPA motions to dismiss both
of Ejiofor’s fraudulent lien suits. They argued that their recording of the hospital
4 lien notices constituted the lawful exercise of the rights to free speech and petition
and that Ejoifor had not presented clear and specific evidence of her fraudulent lien
claims as required to survive a TCPA motion to dismiss. See TEX. CIV. PRAC. &
REM. CODE ANN. §§ 27.005(b) (requiring court to dismiss legal action if moving
party shows by preponderance of evidence that action is “based on, relate[d] to, or
is in response to” moving party’s exercise of right of free speech, petition, or
association); 27.005(c) (stating that court may not dismiss legal action if
nonmovant establishes “by clear and specific evidence a prima facie case for each
essential element of the claim in question”). The Providers also requested
attorney’s fees and sanctions. See id. § 27.009(a) (stating that if court orders
dismissal, it “shall award” moving party court costs, reasonable attorney’s fees,
and other expenses, as well as sanctions sufficient to deter plaintiff from bringing
similar actions).
Ejiofor, in both of her capacities, filed nearly identical responses, arguing
that the Providers failed to show by a preponderance of the evidence that their
fraudulent lien claims were based on, related to, or in response to the Providers’
exercise of their free speech or petition rights in filing the hospital lien notices. See
id. § 27.005(b). In other words, Ejiofor argued that the Providers’ notices of the
hospital liens were not TCPA-protected communications. She also argued, in the
alternative, that in each of the two cases, she had met her burden to establish a
5 prima facie case for each element of her fraudulent lien claims by clear and
specific evidence. See id. § 27.005(c).
After holding a combined hearing on the Providers’ TCPA motions to
dismiss Ejiofor’s two separate fraudulent lien actions, the trial court signed
separate orders granting the Providers’ motions and holding their requests for fees
and sanctions until a later hearing. Ejiofor filed motions to reconsider in both
cases.
Shortly thereafter, pursuant to the Providers’ unopposed motion, the trial
court consolidated all of the Patients’ cases, except for Ejiofor’s case filed as next
friend of Destiny Ejiofor, which retained its own cause number (17-DCV-239862)
(the Ejiofor case), into Ejiofor’s case filed in her own right (17-DCV-239861) (the
Sanders case). The Providers then jointly filed eight TCPA motions to dismiss and
requests for attorney’s fees and sanctions in the Sanders case, one for each of the
eight cases that had been consolidated with Ejiofor’s action on her own behalf.
In August 2017, the trial court held a hearing on the Providers’ eight TCPA
motions to dismiss the fraudulent lien suits as well as on the motions to reconsider
filed in the two Ejiofor cases (one of which was now part of the consolidated
Sanders case). After hearing argument of counsel, the trial court orally granted the
Providers’ eight TCPA motions to dismiss the fraudulent lien suits, denied both of
Ejiofor’s motions to reconsider its prior rulings, and held the issue of attorney’s
6 fees and sanctions for a later date. The trial court then signed separate orders
dismissing each of the eight consolidated fraudulent lien cases and stating that it
would award the Providers attorney’s fees and sanctions pursuant to the TCPA in
amounts to be determined at a subsequent hearing.
In March 2018, the trial court held an evidentiary hearing to determine the
amount of attorney’s fees, costs, and sanctions to award the Providers in
conjunction with its dismissal of all ten cases pursuant to the TCPA. It then signed
a final judgment disposing of Ejiofor’s fraudulent lien case as next friend of
Destiny Ejiofor and a separate final judgment disposing of all nine fraudulent lien
cases in the consolidated action; both final judgments included attorney’s fees,
costs, and sanctions awards for the Providers under the TCPA.
Ejiofor filed a notice of appeal in her case as next friend of her daughter,
Destiny (the Ejiofor case, appellate cause number 01-18-00510-CV), and the nine
plaintiffs jointly filed a notice of appeal in the consolidated cases (the Sanders
case, appellate cause number 01-18-00508-CV). The Providers filed a notice of
cross-appeal in the Sanders case, challenging the amount of the trial court’s
attorney’s fees and sanctions awards. We address both appeals (and the cross-
appeal) in this opinion.
7 Dismissal under the TCPA
A. Standard of Review
We review de novo the denial of a TCPA motion to dismiss. Better Bus.
Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353
(Tex. App.—Houston [1st Dist.] 2013, pet. denied); see also Dolcefino v. Cypress
Creek EMS, 540 S.W.3d 194, 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(applying de novo standard to TCPA motion to dismiss denied by operation of law)
(citing Avila v. Larrea, 394 S.W.3d 646, 652–53, 656 (Tex. App.—Dallas 2012,
pet. denied)). In determining whether to grant or deny a motion to dismiss, 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
ANN. § 27.006(a). We view the evidence in the light most favorable to the
nonmovant. Dolcefino, 540 S.W.3d at 199; see Cheniere Energy, Inc. v. Lotfi, 449
S.W.3d 210, 214 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
B. TCPA’s Statutory Scheme
The TCPA was enacted “to encourage and safeguard the constitutional rights
of persons to petition, speak freely, associate freely, and otherwise participate in
government” against infringement by meritless lawsuits.1 TEX. CIV. PRAC. & REM.
1 We note that, in its most recent session, the Texas Legislature amended the TCPA. The amendments became effective September 1, 2019. Because this suit was filed before September 1, 2019, it is governed by the statute as it existed before the amendments, and all of our citations and analysis are to that version of the statute. 8 CODE ANN. § 27.002. To achieve this purpose, the TCPA provides for expedited
dismissal if the moving party shows by a preponderance of the evidence that a
legal action filed against it is based on, relates to, or is in response to the moving
party’s exercise of the right of free speech, the right to petition, or the right of
association. Id. § 27.005(b).
If the movant establishes that a suit is based on protected communications,
the trial court must dismiss the action unless the non-movant establishes by “clear
and specific evidence a prima facie case for each essential element of the claim in
question.” Id. § 27.005(c); accord In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015)
(orig. proceeding) (“In reviewing [the motion to dismiss], the trial court is directed
to dismiss the suit unless ‘clear and specific evidence’ establishes the plaintiffs’
‘prima facie case.’” (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c)).
Importantly, section 27.010 exempts certain types of legal actions from the
TCPA altogether. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010. For example,
as asserted in this case, the commercial-speech exemption removes certain
commercial speech from the Act’s protections. See id. § 27.010(b). The party
asserting the exemption bears the burden of establishing its applicability. Schimmel
1, 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–12, 2019 Tex. Sess. Law Serv., 684, 684–87 (codified at TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011).
9 v. McGregor, 438 S.W.3d 847, 857 (Tex. App.—Houston [1st Dist.] 2014, pet.
denied).
C. The Commercial Speech Exemption
Because it is dispositive, we limit our analysis to the Patients’ argument that
their fraudulent lien suits are not subject to the TCPA’s dismissal procedures
because the communications at issue—the Providers’ hospital liens—are exempted
commercial speech. See TEX. R. APP. P. 47.1 (stating that appellate courts must
address every issue raised that is necessary to final disposition of appeal); see also
Santellana v. CentiMark Corp., No. 01-18-00632-CV, 2019 WL 1442228, at *3
(Tex. App.—Houston [1st Dist.] Apr. 2, 2019, no pet.) (mem. op.) (stating that
commercial speech exemption constitutes independent ground “that can fully
support a trial court’s denial of a motion to dismiss filed pursuant to the TCPA”).
According to the Patients, the Providers’ hospital liens are nothing more than
attempts to collect payment owed on business transactions and, as such, are not
TCPA-protected. We agree.
The TCPA’s commercial speech exemption excludes from the TCPA’s
summary dismissal provisions any
legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, . . . or a commercial transaction in which the intended audience is an actual or potential buyer or customer.
10 TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b).
The Texas Supreme Court in Castleman v. Internet Money Limited clarified
that the commercial speech exemption applies when (1) the TCPA movant was
primarily engaged in the business of selling or leasing goods or services; (2) the
TCPA movant made the statement or engaged in the conduct on which the claim is
based in his capacity as a seller or lessor of those goods or services; (3) the
statement or conduct at issue arose out of a commercial transaction involving the
kind of goods or services the TCPA movant provides; and (4) the intended
audience of the statement or conduct was the TCPA movant’s actual or potential
customers for the kind of goods or services he provides. See 546 S.W.3d 684, 688
(Tex. 2018) (per curiam) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b)).
The Patients contend that the Providers’ hospital liens meet all of these
requirements and thus do not trigger the TCPA’s dismissal procedures. They rely
on East Texas Medical Center Athens v. Hernandez, in which the Tyler Court of
Appeals held that although the hospital lien East Texas Medical Center filed to
secure payment for treating injuries Hernandez sustained in a car accident was an
exercise of free speech, it constituted commercial speech, and as such, it was not
subject to the TCPA’s dismissal procedures. See No. 12-17-00333-CV, 2018 WL
2440508, at *3–4 (Tex. App.—Tyler May 31, 2018, pet. denied) (mem. op.).
11 Regarding the first and second requirements of the exemption, the Patients
argue that the Providers, like East Texas Medical Center, are primarily engaged in
the business of selling health care services, and that they filed the hospital liens in
that capacity. See id. at *4; see also Castleman, 546 S.W.3d at 688 (setting forth
four requirements of commercial speech exemption). The Providers respond that
their primary business—treating injured patients—is not a “commercial activity,”
because selling medical services is “merely ancillary to [their] primary business of
treating sick and injured patients.” We recently rejected this precise argument. See
N. Cypress Med. Ctr. Operating Co. GP, LLC v. Norvil, 580 S.W.3d 280, 286
(Tex. App.—Houston [1st Dist.] 2019, pet. denied).
The plaintiff in Norvil brought a declaratory judgment action against North
Cypress arising out of its assertion of a hospital lien to recover for treating injuries
she sustained in a slip and fall accident. Id. at 282–83. The trial court denied North
Cypress’s TCPA motion to dismiss the plaintiff’s case. Id. at 283. On appeal,
North Cypress argued that the selling of goods and services was ancillary to its
primary purpose of treating sick and injured people. Id. at 285. Noting that “[t]he
business of selling or leasing goods or services and the business of treating sick
and injured people are not mutually exclusive activities,” we held that by filing the
hospital lien to recover fees for services rendered, North Cypress was acting in its
capacity as a seller of the healthcare services it had provided to the plaintiff. Id. at
12 286 (quoting Tyler v. Pridgeon, 570 S.W.3d 392, 398 (Tex. App.—Tyler 2019, no
pet.)). Therefore, it could not seek dismissal of the plaintiff’s declaratory judgment
action under the TCPA on the ground that it was merely exercising its free speech
rights in seeking payment for having treated the plaintiff’s injuries. Id. The same is
true here—the Providers were primarily engaged in the business of selling health
care services and they filed the hospital liens in that capacity, not as an exercise of
their free speech or petition rights. See id.; Pridgeon, 570 S.W.3d at 398.
Regarding the third requirement for application of the commercial speech
exemption—that the statement arose out of a commercial transaction involving the
kind of services the Providers provided—the Providers do not dispute that they
filed the liens to secure payment for the health care services they provided to the
Patients. See Castleman, 546 S.W.3d at 688 (stating requirements for commercial
speech exemption). But they maintain that because the liens were filed to secure
payment for services already rendered, they do not constitute commercial speech.
According to the Providers, for a statement to arise out of a commercial
transaction, it must be made for the purpose of securing a future sale. For this
proposition, they rely on the Texas Supreme Court’s statement in Castleman that
the commercial speech exemption applies only to “communications made not as a
protected exercise of free speech by an individual, but as ‘commercial speech
which does no more than propose a commercial transaction.’” See id. at 690
13 (quoting Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 328, 340
(1986)). As discussed below, this statement does not purport to refine the
exemption’s third requirement; rather, it differentiates between speech directed to
customers and speech directed elsewhere, as part of the analysis of the fourth
requirement.
In Castleman, Castleman hired O’Connor and his company, a “virtual
assistant” services provider, to receive and fulfill customer orders placed through
Castleman’s website. Id. at 685. A dispute arose, and Castleman demanded
compensation for O’Connor’s alleged over-ordering. Id. When O’Connor refused
to pay, Castleman published statements about the dispute on various online
platforms, with the stated goal of warning other business owners of what he
considered to be O’Connor’s poor performance. Id. O’Connor then sued Castleman
for defamation. Id. Castleman filed a TCPA motion to dismiss, and the trial court
denied the motion, agreeing with O’Connor that the commercial speech exemption
applied and the suit was not subject to the TCPA’s dismissal procedures. Id. at
685–86. The court of appeals affirmed based on the commercial speech exemption.
The Texas Supreme Court reversed, holding that because the intended audience of
Castleman’s speech was not its own, but rather, O’Connor’s customers, the fourth
requirement of the exemption was not met: “Castleman intended his statements to
reach O’Connor’s actual or potential customers. His statements constituted
14 protected speech warning those customers about the quality of O’Connor’s
services, not pursuing business for himself.” Id. at 691.
Contrary to the Providers’ assertion, Castleman did not limit the
applicability of the exemption to speech intended to secure future sales. See id. at
688; see also Norvil, 580 S.W.3d at 286 (citing Castleman, 546 S.W.3d at 690)
(recognizing that exception applies only to “commercial speech which does no
more than propose a commercial transaction” and holding that hospital lien “arose
out of a commercial transaction” involving provision of healthcare services).
Turning to the fourth requirement, the Patients argue that they were actual
customers of the Providers’ health care services and thus were the intended
audience of the liens. See id. (stating that intended audience of statement or
conduct must be defendant’s actual or potential customers for kind of goods or
services he provides). They rely on the holding in Hernandez that because a
hospital has no contractual or tort rights against the third-party tortfeasors, “the
only true support for a hospital lien is via a claim for reimbursement,” which “is
necessarily a claim against [them] as the owner[s] of those proceeds.” See
Hernandez, 2018 WL 2440508 at *4.
The Providers, on the other hand, argue that the liens’ intended audience is
any third-party tortfeasor who might be responsible for the Patients’ injuries. An
examination of the statute and its purpose compel us to disagree.
15 Property Code chapter 55—the hospital lien statute—creates a lien in favor
of hospitals who treat certain patients allegedly injured by the negligence of a third
party. See TEX. PROP. CODE ANN. § 55.002(a) (stating that hospital has lien on
patient’s cause of action for payment for treatment of injuries caused by accident
attributed to another’s negligence). The lien attaches to the patient’s personal
injury cause of action as well as to any corresponding judgment or proceeds of
settlement. Id. § 55.003(a)(1)–(3) (stating that lien attaches to cause of action for
damages arising from injury, judgment, and settlement proceeds). The purpose of
the statute is to provide hospitals “an additional method of securing payment from
accident victims, encouraging their prompt and adequate treatment.” In re N.
Cypress Med. Ctr. Operating Co., Ltd., 559 S.W.3d 128, 131 (Tex. 2018).
Because a hospital has “neither tort nor contract rights against a tortfeasor
who has injured a patient, the only support for a hospital lien is its claim for
reimbursement from the patient.” Norvil, 580 S.W.3d at 286 (quoting Daughters of
Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 411 (Tex. 2007)).
Thus, “[a] lien against a patient’s tort recovery is a claim against the patient.” Id.
(quoting Linnstaedter, 226 S.W.3d at 411). We therefore conclude that the
Patients, who are the Providers’ actual customers, are members of the hospital
liens’ intended audience. See id.; see also Schmidt v. Crawford, 584 S.W.3d 640,
654 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (differentiating hospital liens
16 from speech at issue in that case, because hospital lien statute “necessarily makes
the injured person a member of the hospital lien’s intended audience in order to
effectuate its purpose, which is to ensure that the hospital gets paid from any funds
that [the patient] may recover from the third party who allegedly made her medical
treatment necessary”).
Accordingly, we hold that the Providers’ hospital liens are commercial
speech exempt from the TCPA’s dismissal procedures, and as such, cannot support
dismissal of the Patients’ fraudulent lien claims.
We sustain the Patients’ first issue.
Cross-Appeal of TCPA Attorney’s Fees and Sanctions
The Providers’ cross-appeal challenges the amount of attorney’s fees and
sanctions awarded to them for defending the nine consolidated fraudulent lien suits
in the Sanders case that the trial court dismissed pursuant to the TCPA. See TEX.
CIV. PRAC. & REM. CODE ANN. § 27.009(a). Because in sustaining the Patients’
first issue we must reverse the trial court’s final judgment, including its award of
attorney’s fees, costs, and sanctions, we dismiss the Providers’ cross-appeal as
moot.
Conclusion
We reverse the trial court’s final judgment dismissing Rosemary Ejiofor’s
case filed as next friend of Destiny Ejiofor and awarding attorney’s fees and
17 sanctions, and we remand the case to the trial court for further proceedings
Likewise, we reverse the trial court’s final judgment dismissing the
consolidated cases filed by Karen Sanders, Theodore Chase, Kevin Pever, Hassan
Gebara, Lindsey Villanueva, Tamisha Shelton, Kenneth Williams, Timisha
Kimble, and Rosemary Ejiofor (in her own right) and awarding attorney’s fees and
sanctions, and we remand the cases to the trial court for further proceedings
We dismiss the Providers’ cross-appeal as moot.
Evelyn V. Keyes Justice
Panel consists of Chief Justice Radack and Justices Keyes and Goodman.