THE “WISPINESS”—OR NOT—OF THE TCPA

Erdner v. Highland Park Emergency Center, LLC
Dallas Court of Appeals, No. 05-18-00654-CV (May 22, 2019)
Justices Whitehill (Concurrence/Dissent, linked here), Molberg (Opinion, linked here), and Reichek

Ken Carroll

Highland Park Emergency Center, LLC (“HPEC”) sued one of its doctor-members for breach of fiduciary duty. HPEC claimed Erdner usurped an opportunity to expand its freestanding-emergency-room (“FSER”) business to new locations. Contending HPEC’s claim was based on or related to his exercise of his rights of association and free speech—specifically, his communications with other investors about forming a new company to pursue FSER locations—Erdner moved to dismiss under the Texas Citizens Participation Act. The trial court denied the motion and, in a split decision, the Dallas Court of Appeals affirmed, holding the TCPA does not apply to the communications at issue.

The panel majority explained that prior Dallas Court decisions had held that, for a communication to qualify as an exercise of the right of association protected by the TCPA, that communication must be “between individuals who join together” and “must involve public or citizen’s participation.” And a TCPA-protected exercise of free speech requires a “communication made in connection with a matter of public concern.” The majority then held the communications in issue satisfied neither test. They were “private communications relating to establishing a business,” not “public [communications] or citizens’ participation,” and therefore not protected exercises of the right of association. The majority acknowledged that, under Texas Supreme Court precedent, a communication need have no more than a “tangential relationship” to a matter of public concern to be protected as free speech under the TCPA. But, the majority said, “A private communication made in connection with a business dispute is not a matter of public concern under the TCPA.” Relying heavily on a federal district court opinion from the Southern District of Texas, the majority held that “a communication cannot have a ‘tangential relationship’ to a matter of public concern that does not yet exist”—in this case, the FSER facilities that might, or might not, be built in the future.

Writing separately, Justice Whitehill concurred in—but disagreed with—the holding on the right of association, but dissented on free speech. Whitehill acknowledged that prior decisions from the Dallas Court had imposed a “public or citizen’s participation” requirement for protection of the right of association under the TCPA, and that this panel was bound to follow them. But, he said, “those controlling precedents were wrongly decided,” because the statute itself says nothing about such an additional requirement. Dissenting on the free-speech issue, Justice Whitehill noted that a “tangential” relationship to a matter of public concern, all the Supreme Court has found to be required under the TCPA, “is a very broad” standard, one that “conjures wispiness.” He would have found the communications at issue, regarding potential FSERs, to be sufficiently “tangentially related to” a matter of public concern—health and community well-being—to be covered by the TCPA.