DEFENDANT HCA HOUSTON HEALTHCARE KINGWOOD’S MOTION TO DISMISS PURSUANT TO THE TEXAS CITIZENS PARTICIPATION ACT
Originally Published: Jun. 16, 2023 | Republished: Jun. 18, 2023
COMES NOW, Defendant and Counter-Plaintiff HCA Houston Healthcare Kingwood (hereinafter referred to as “HCA” or “Defendant”) and its attorneys, Nicole Andrews, Benjamin Hamel, and Madison Addicks (hereinafter referred to as “attorneys”) (collectively “Defendants”), file this Motion to Dismiss pursuant to the Texas Citizen’s Participation Act, Texas Civil Practice and Remedies Code Chapter 27.001 et seq, and would respectfully show the Court as follows:
SUMMARY OF THE ARGUMENT
Defendants are entitled to dismissal of Plaintiff’s claims because they facially violate the Texas Citizen’s Participation Act (“TCPA”), which protects parties from improper legal actions based on, related to, or in is response to the party’s making or submitting of a statement or document in or pertaining to a judicial proceeding, and which similarly protects attorneys for actions taken, or communications made, in the rendition of legal services on behalf of their client(s).1
On October 18, 2022, Plaintiff and Counter-Defendant Mark Burke (hereinafter referred to as “Burke” or “Plaintiff”) filed a Petition alleging medical negligence.2
On April 17, 2023, Burke
filed a Second Amended Petition removing all claims for medical negligence, but adding claims against Defendant and Defendant’s counsel solely related to their conduct in this lawsuit in defending against the claims which Plaintiff has now disavowed.3
Specifically, Plaintiff’s Amended Petition alleges that Defendant turned this lawsuit into a “personal vendetta” against him, and that Defendant and it’s attorneys conduct within the litigation constitutes: retaliation, conspiracy, intentional infliction of emotional distress, abuse of power, breach of fiduciary duty, and malicious use of process.4
As expressly provided by the TCPA, Defendant and it’s attorneys’ actions within this litigation cannot give rise to liability under Texas law and, for that reason, Defendants request that the Court grant their Motion to Dismiss under the Texas Citizen’s Participation Act, dismiss Plaintiff’s claims with prejudice to refiling, award Defendants their attorneys’ fees, and sanction Plaintiff to ensure that this type of flagrantly abusive behavior does not occur again.5
ARGUMENTS AND AUTHORITIES
The Texas Citizens Participation Act, found in Chapter 27 of the Texas Civil Practice and Remedies Code, is an anti-SLAPP statute designed “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.”6
The TCPA provides an expeditious and cost- effective mechanism for early dismissal of suits that impinge on such rights.7
To succeed on a TCPA Motion to Dismiss, “the moving party must show by a preponderance of the evidence that the TCPA properly applies to the legal action against it.”8
In evaluating a motion to dismiss, the TCPA must “be construed liberally to effectuate its purpose and intent fully,” and the Court may consider the pleadings, evidence which a court could consider under Rule 166a, and any supporting and opposing affidavits. 9
If the movant meets its burden, the court must dismiss the claims unless the claimant establishes by clear and specific evidence a prima facie case for each essential element of the challenged claim.10
Clear and specific evidence means the claimant “must provide enough detail to show the factual basis for its claim.”11
Finally, even if the claimant is able to establish a prima facie case, a court must dismiss the legal action if the movant establishes each essential element of a valid defense by a preponderance of the evidence.12
Defendant’s Motion to Dismiss pursuant to the TCPA is being filed within sixty days of the filing of Plaintiff’s Second Amended Petition and is, therefore timely.13
The TCPA provides, in pertinent part, as follows:
“If a legal action is based on or is in response to a party’s exercise of the . . . right to petition . . . that party may file a motion to dismiss the legal action.”
Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).
“Legal action’ means a lawsuit, cause of action, petition, complaint, cross-claim, or counterclaim or any other judicial pleading or filing that request legal or equitable relief.”
Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6).
‘Exercise of the right to petition’ means…a communication in or pertaining to… a judicial proceeding.”14
Exercise of the Right to Petition
Plaintiff’s Second Amended Petition is subject to dismissal under the TCPA because it qualifies as a “legal action” filed in response to Defendant’s right to petition, as well as Defense counsel’s representation in furtherance of that right.15
As applicable here, the TCPA defines the “exercise of the right to petition” as, among other things, “a communication in or pertaining to . . . a judicial proceeding.”16
Plaintiff’s Second Amended Petition expressly states that Plaintiff’s claims are based on Defendant’s pleadings filed in this case, specifically its Original Counterclaim and Application for Injunctive Relief, as well as its Motion to Dismiss and Request for Attorney’s Fees and Costs for Failure to Serve an Expert Report.17
Plaintiff’s Petition makes it abundantly clear that his newly asserted claims are subject to the TCPA, as he expressly states that they are based on the pleadings filed in this case which he alleges contained false information.18
Plaintiff’s characterization of Defendants alleged conduct is categorically untrue but, more importantly, it is immaterial to the Court’s evaluation of the TCPA’s applicability, which only requires that the Court find that the claims in Plaintiff’s Second Amended Petition are based on Defendant and its attorneys “exercise of the right to petition,” as that term is broadly defined in the TCPA.19
Accordingly, because the express language of Plaintiff’s Second Amended Petition demonstrates that his claims are solely based on Defendants’ communications in, or pertaining to, this judicial proceeding, the TCPA applies and Plaintiff’s claims are subject to
A. Plaintiff must establish by “clear and specific evidence” each element of his claims against Defendant and its attorneys.
Because Plaintiff’s conspiracy, breach of fiduciary duty, retaliation, malicious use of process, and intentional infliction of emotional distress claims were filed in response to Defendants’ right to petition, those claims are subject to dismissal under the TCPA unless he can establish each element of those claims by clear and specific evidence.21 Plaintiff cannot do so.22
To prevail on an action for conspiracy, Plaintiff must prove five elements:
(1) a combination of two or more persons;
(2) the persons seek to accomplish an object or course of action;
(3) the persons reach a meeting of the minds on the object or course of action;
(4) one or more unlawful, overt acts are taken in pursuance of the object or course of action;
(5) damages occur as a proximate result.23
Therefore, an actionable civil conspiracy requires “specific intent to agree to accomplish something unlawful or to accomplish something lawful by unlawful means.”24
Plaintiff alleges Defendant and its attorneys have withheld video surveillance footage of Plaintiff’s admission to the facility, refused to waive service when requested by Plaintiff, submitted a general denial for an Answer, and filed a Counterclaim and Application for Temporary and Permanent Injunction.25
These are lawful and appropriate actions and, as such, cannot constitute a conspiracy. For that reason, Plaintiff has no evidence, much less clear and specific evidence, sufficient to satisfy his burden under the TCPA in regard to that claim.
To properly assert a breach of fiduciary duty, Plaintiff must prove
(1) the existence of a fiduciary relationship between Plaintiff and Defendant;
(2) Defendant’s breach of a fiduciary duty arising from that relationship;
(3) injury to Plaintiff, or benefit to Defendant, resulting from that breach.26
Plaintiff cannot meet this burden as Defendant and its attorneys do not owe any fiduciary duty to Plaintiff.
A person commits retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of service or status of another as public servant, witness, prospective witness, or informant.27
Plaintiff argues that Defendant and its attorneys have retaliated by “filing malicious, outrageous, baseless and frivolous allegations and filings.”28
The right to petition courts and defend against suits is not unlawful. It is one of the most fundamental and important rights guaranteed by the Constitution and, for that reason, Plaintiff cannot establish any of the elements of his retaliation claim.
These constitutional protections also prevent Plaintiff from establishing his cause of action for malicious use of process, which requires him to prove:
(1) Defendant made an illegal, improper, or perverted use of the process, a use neither warranted nor authorized by the process,
(2) Defendant had an ulterior motive or purpose in exercising such illegal, perverted, or improper use of the process;
(3) damage to Plaintiff as a result of such illegal act.29
Lastly, to prevail on a claim of intentional infliction of emotional distress, Plaintiff must establish that
(1) Defendant acted intentionally or recklessly,
(2) its conduct was extreme and outrageous,
(3) its actions caused Plaintiff’s emotional distress,
(4) the emotional distress was
Under Texas law, intentional infliction of emotional distress is a gap filler tort never meant to supplant or duplicate existing statutory or common-law remedies, and cannot be maintained when the risk that emotional distress will result is incidental to the commission of another tort.31
As stated above, Plaintiff’s allegations are completely untrue but, even if they were not, his claim for IIED is subsumed within the litany of other claims asserted in his Second Amended Petition and, for that reason, is subject to dismissal.
Plaintiff’s claims are subject to dismissal because Defendants can establish an affirmative defense.
Even if Plaintiff could establish each element of his claims by clear and specific evidence, which he cannot, Defendant and its attorneys are still entitled to dismissal because their conduct is protected by the judicial communications privilege.32
The judicial communications privilege is an absolute legal privilege/immunity that protects communications made by actual or potential witnesses, litigants, counsel, and other participants in actual or contemplated judicial proceedings.33
“Texas courts have long recognized that an absolute privilege extends to publications made in the course of judicial and quasi judicial proceedings…
The scope of the absolute privilege extends to all statements made in the course of the proceeding, whether made by the judges, jurors, counsel, parties, or witnesses, and attaches to all aspects of the proceeding, including statements made in open court, hearings, depositions, affidavits, and any pleadings or other papers on the case.”34
This rule cannot be “circumvented merely by placing a different label on the claim,”
whether that label is “negligence,” “breach of fiduciary duty,” or some other cause of action.35
Plaintiff expressly states that his newly asserted claims are based on Defendant and its attorneys’ filing of pleadings and other communications made in this suit and, as such, they are protected by the judicial communications privilege.36
For that reason also, Defendants are entitled to dismissal of Plaintiff’s claims.
Attorney’s Fees and Sanctions
Texas Civil Practice and Remedies Code § 27.009 provides that, “if the court orders dismissal of a legal action under this chapter, the court:
(1) shall award to the moving party court costs and reasonable attorney’s fees incurred in defending against the legal action;
(2) may award to the moving party sanctions against the party who brought the legal action as the court determines sufficient to deter the party who brought the legal action from bringing similar actions described in this chapter.37
In determining the amount of a sanction under the TCPA, a trial court should consider the parties’ litigation history, as well as the time and expenses involved in defending against the current lawsuit.38
The Court may also consider, “any aggravating misconduct, among other factors.”39
Defendants attach hereto an affidavit of defense counsel in support of Defendants’ reasonable attorney’s fees and court costs.40
Defendants further contend that Plaintiff’s conduct in this litigation, namely his:
(1) refusal to appear at numerous properly noticed hearings;
(2) cancellation of numerous hearings without adequate explanation and after the deadline for submission of responsive pleadings;
(3) service of subpoenas on unrelated third parties including
the police officer investigating Plaintiff’s criminal complaint,
the court reporter who transcribed Defendant’s injunctive relief hearing,
and family members of defense counsel;
(4) his filing of baseless pleadings intended to cause unnecessary delay, incur additional costs, and vexatiously multiply these proceedings, all warrant the imposition of significant sanctions.41
Defendant and its attorneys pray that upon final hearing, the Court grant this Motion to Dismiss pursuant to the Texas Citizen’s Participation Act, dismiss Plaintiff’s claims with prejudice to refiling, award Defendants their attorney’s fees and costs, and sanction Plaintiff to deter such conduct in the future.
Defendant and its attorneys further request all other and further relief to which they may be entitled at law or in equity.
SERPE | ANDREWS, PLLC
By: /s/ Ben E. Hamel
Texas Bar No. 00792335
Benjamin E. Hamel
Texas Bar No. 24103198
Madison J. Addicks
Texas Bar No. 24132017
2929 Allen Parkway, Suite 1600
Houston, TX 77019
(713) 452-4400 – Telephone
(713) 452-4499 – Facsimile
ATTORNEYS FOR DEFENDANT/COUNTER- PLAINTIFF, HCA HOUSTON HEALTHCARE KINGWOOD
TO THE HONORABLE JUDGE OF THIS COURT:
Defendants, NICOLE ANDREWS, BENJAMIN HAMEL, AND MADISON ADDICKS (hereinafter referred to as “Defendants”), file this Original Answer and Jury Demand and respectfully show the Court as follows:
1. As authorized by Rule 92 of the Texas Rules of Civil Procedure, Defendants enter a general denial of matters pled by Plaintiff and request that the Court requires Plaintiff to prove his charges and allegations by a preponderance of the evidence, as required by the Constitution and laws of the State of Texas.
2. Defendants request that discovery in this case be conducted under Level 3 of the Texas Rules of Civil Procedure.
3. Defendants plead that the incident in issue was caused, in whole or in part, by persons, entities, instrumentalities or factors beyond the control of Defendants and for whom Defendants are not legally responsible.
4. Defendants plead that Plaintiff’s claims are barred, in whole or in part, by the judicial communications privilege.
5. Defendants plead damages or liability complained of by Plaintiff herein are the result of intervening new and independent causes and are not the result of any act or omission on the part of Defendants.
6. Defendants plead that the matters complained of by Plaintiff were, as to Defendants, wholly and completely unavoidable, and incurred without any negligence on the part of Defendants.
7. Under the facts, the Court should instruct the jury on sole proximate cause, sole producing cause, and new and independent cause.
8. Plaintiff’s claims and causes of action, if any, against Defendants are barred, in whole or in part, because he failed to mitigate his damages.
9. Defendants assert the defense of comparative responsibility and ask the Jury to determine the percentage of responsibility of each person or entity, whether or not joined in this lawsuit, for the injuries and damages about which Plaintiff complains.
10. Pursuant to the provisions of the Texas Civil Practice & Remedies Code, Defendants’ liability, if any, in this matter is limited, and Defendants request that the appropriate limitations be imposed by this Court upon any verdict rendered in this cause.
11. Defendants assert the right to contribution and/or indemnity under the laws of the State of Texas, from any other person or entity, regardless of whether a party, who is found to have caused or contributed to the injuries and/or damages as alleged by Plaintiff.
12. Defendants specifically plead and incorporate by reference all applicable caps and limitations upon any award of damages, including, but not limited to, economic, noneconomic, compensatory, and punitive damages, which are provided by law, including but not limited to, the provisions of the Texas Civil Practice and Remedies Code.
13. Defendants invoke their right to reduction of any verdict that may be rendered in this cause by credit for payments made by other persons or by percentage reduction to which Defendants would be entitled.
14. In the unlikely event Plaintiff is adjudged to be entitled to any damages in this matter, which Defendants deny, Plaintiff is not entitled to recover prejudgment interest on any future damages. Defendants would show that, as a matter of law, interest on damages yet to accrue is not compensatory and is, consequently, a penalty which would be imposed even absent a finding of gross negligence, or rather, for a lesser level or degree of culpability for which a penalty is not authorized by law. See TEX. FIN. CODE § 304.1045.
15. Pleading in the alternative, should such be necessary, Defendants affirmatively allege that, in the unlikely event that the jury awards Plaintiff’s exemplary or punitive damages, the damages are subject to the limitations contained in sections 41.007, 41.008, 41.010, 41.011 and 41.012 of the Texas Civil Practice and Remedies Code.
16. Pleading further and in the alternative, Defendants contend that with respect to all claims seeking punitive or exemplary damages, Defendants would show that such damages are inappropriate and impermissible under the law due to the following:
a. Punitive or exemplary damages are criminal, or quasi-criminal in nature, and Plaintiff should be required to prove the basis of such damages beyond a reasonable doubt and the failure to require the same is a denial of due process under law and a denial of equal protection of the law as prescribed under the United States Constitution and the Constitution of the State of Texas.
b. An award of punitive or exemplary damages would constitute a taking of property without due process of law as guaranteed by the United States Constitution and the Constitution of the State of Texas.
c. It is a denial of due process of law and of equal protection of the law under the United States Constitution and the Constitution of the State of Texas to permit a corporation to be vicariously liable for punitive or exemplary damages which were awarded on the basis of alleged acts or omissions of employees, agents, representatives, of the corporation under the doctrine of respondent superior or any other vicarious liability doctrine.
d. Punitive and/or exemplary damages constitute an unjust enrichment by reason of the unconstitutional taking of property without due process of law as provided under the United States Constitution and the Constitution of the State of Texas.
e. Under Texas law, the measure of damages for punitive and exemplary damages is so vague and ambiguous on its face as well as in its application, that it denies Defendants due process of law and equal protection of the law as provided under the United States Constitution and the Constitution of the State of Texas.
f. Under Texas law, the measure of damages for punitive and exemplary damages is so vague and ambiguous that it prevents courts and juries from consistently applying the law, and therefore, further prevents effective judicial review of any such punitive damages awards.
g. Under Texas law, the measure of damages for punitive and exemplary damages is so vague and ambiguous that the basis of such damages cannot be clearly and readily ascertained in advance so as guide the behavior of individuals in their actions, thus constituting an EX-POST FACTO law specifically prohibited by the United States Constitution and the Constitution in the State of Texas.
h. An award of punitive and exemplary damages violates the excessive fines clause of the Eighth Amendment as applied to the Fourteenth Amendment of the United States Constitution.
i. The Defendants who are subject to the award do not have the right to refuse to testify against themselves but must in fact take the stand and/or give deposition testimony or subject themselves to the consequences of a default judgment.
DEMAND FOR JURY TRIAL
17. Pursuant to Rule 216 of the Texas Rules of Civil Procedure, Defendants respectfully demand trial by jury; the requisite fee for same has been paid.
PLEADINGS AND AMENDMENT THEREOF
18. Please take notice that pursuant to Texas Rules of Civil Procedure 84 and 85, to the extent that defenses, other than the General Denial, pleaded in this Original Answer are in conflict, they are pleaded in the alternative.
19. Defendants respectfully reserve the right to file an amended Answer in this case in the matter authorized by Texas Rules of Civil Procedure 63 and 66.
RULE 193.7 NOTICE
20. Pursuant to Rule 193.7 of the Texas Rules of Civil Procedure, Defendants hereby give actual notice to Plaintiff that any and all documents produced in response to written discovery may be used as evidence in this case; and, that any such materials may be used as evidence against the party producing the document at any pretrial proceeding and/or at the trial of this matter without the necessity of authenticating the document and/or materials produced in discovery.
NOTICE OF INTENT TO TAKE DEPOSITIONS
21. Defendants put Plaintiff on notice of their intent to take depositions of Plaintiff and Plaintiff’s witnesses, and from their appearance herein make such request to Plaintiff.
WHEREFORE, PREMISES CONSIDERED, Defendants, NICOLE ANDREWS, BENJAMIN HAMEL, AND MADISON ADDICKS, pray that, upon final hearing, judgment be entered that Plaintiff takes nothing and that Defendants be dismissed with their costs.
[SIGNATURE ON FOLLOWING PAGE]
SERPE | ANDREWS, PLLC
By: /s/ Ben E. Hamel
Texas Bar No. 00792335 email@example.com Benjamin E. Hamel
Texas Bar No. 24103198 firstname.lastname@example.org Madison J. Addicks
Texas Bar No. 24132017 email@example.com
2929 Allen Parkway, Suite 1600
Houston, TX 77019
(713) 452-4400 – Telephone
(713) 452-4499 – Facsimile
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing document has been forwarded to all counsel of record pursuant to the Texas Rules of Civil Procedure on the 16th day of June 2023.
46 Kingwood Greens Dr Kingwood, Texas 77339 Plaintiff Pro Se
/s/Ben E. Hamel
Benjamin E. Hamel