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

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.

1
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

2
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.
3
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.

4
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
5
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
6
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

7
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

9
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

10
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

11
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

12
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

13
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

17
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

18
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

19
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

20
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

24
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).

26
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
27
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