MAJORITY OPINION Appellant Round Table Physicians Group, PLLC, appeals the denial of its Texas Citizens Participation Act (“TCPA”) motion to dismiss Natalie Medina’s declaratory judgment suit, which alleges that Round Table’s chapter 55 medical lien is fraudulent.[1] Round Table argues that the trial court erred by denying its motion to dismiss because the TCPA applies to Medina’s claim, no statutory exemptions apply, Medina did not present prima facie evidence in support of her claim, and Round Table conclusively proved a defense.[2] After examining the statutory language and relevant case law, we conclude that the TCPA’s “commercial speech” exemption applies in this case. We affirm the trial court’s order denying Round Table’s TCPA motion to dismiss. Background After she was involved in an automobile collision, Natalie Medina received medical treatment from Round Table. Round Table is a physician group that provides medical services at a freestanding emergency medical care facility. Medina, who did not have health insurance at the time, received a $2,000 bill for Round Table’s medical treatment. Two months after treating Medina, Round Table filed with the county clerk a notice of lien under Property Code chapter 55. Chapter 55 creates a lien in favor of certain medical providers who treat individuals allegedly injured by the negligence of a third party and establishes procedures to secure the lien. See Tex. Prop. Code § 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). 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). The statute’s purpose 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) (orig. proceeding). Round Table also provided written notice of the lien filing to Medina. See Tex. Prop. Code § 55.002(a), (d). Medina sued Round Table, seeking a declaratory judgment that the lien was invalid because Round Table is not authorized to file a lien under chapter 55 and that the charges secured by the lien were not reasonable. Medina also sought monetary relief under the fraudulent lien statute. See Tex. Civ. Prac. & Rem. Code § 12.002. Round Table filed a motion to dismiss under the TCPA, arguing that Medina’s legal action related or was in response to the lien, which Round Table contended was an exercise of its rights of free speech and to petition. Round Table also argued that Medina could not present prima facie evidence of her claims. As relevant here, Medina responded that the TCPA did not apply because Round Table’s notice of lien was commercial speech exempted from the TCPA.[3] The trial court denied the motion, which Round Table challenges by interlocutory appeal.[4] Analysis Round Table argues that the trial court erred by denying its TCPA motion to dismiss. According to Round Table: the Act applies because Medina’s legal action is based on, relates to, or is in response to Round Table’s exercise of its rights to petition or speak freely; no statutory exemption applies; Medina failed to present prima facie evidence of her claims; and Round Table proved a defense. Medina responds that the Act does not apply because her claims are exempted under the statutory “commercial speech” provision. The Texas Citizens Participation Act The TCPA contemplates an expedited dismissal procedure when a “legal action” is “based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association.” Tex. Civ. Prac. & Rem. Code § 27.003(a). The rights of free speech and to petition are at issue here. The TCPA defines “the exercise of the right of free speech” as “a communication made in connection with a matter of public concern.” Id. § 27.001(3). A “matter of public concern” is defined in relevant part as including “an issue related to . . . health or safety; [or] a good, product, or service in the marketplace.” Id. § 27.001(7)(A), (E). “Exercise of the right to petition” means, as relevant here: a communication in or pertaining to a judicial proceeding or an official proceeding, other than a judicial proceeding, to administer the law; or a communication in connection with an issue under consideration or review, or that is reasonably likely to encourage consideration or review of an issue, by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding. Id. § 27.001(4)(A)(i)-(ii), (B), (C). For both the right of free speech and the right to petition, a “‘[c]ommunication’ includes the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1). In enacting the TCPA, the legislature explained that its overarching purpose is “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.” Id. § 27.002. “To effectuate the statute’s purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant’s exercise of these First Amendment rights.” ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). In the first step, the party filing a motion to dismiss under the TCPA bears the burden to show by a “preponderance of the evidence” that the “legal action” is “based on, relates to, or is in response to,” as relevant to this appeal, the party’s exercise of the right of free speech or right to petition. Tex. Civ. Prac. & Rem. Code §§ 27.003(a), 27.005(b); see also Coleman, 512 S.W.3d at 898. If the movant satisfies this burden, the trial court must dismiss the lawsuit unless an exemption applies or unless the nonmovant “establishes by clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code § 27.005(c); see also Coleman, 512 S.W.3d at 899. The nonmovant can avoid the Act’s burden-shifting requirements by showing that one of several exemptions applies. See Tex. Civ. Prac. & Rem. Code § 27.010. One of those exemptions—known as the “commercial speech” exemption—impacts the present dispute, and we discuss it subsequently. The nonmovant must prove each element of a claimed exemption by a preponderance of the evidence. Hieber v. Percheron Holdings, LLC, 591 S.W.3d 208, 211 (Tex. App.—Houston [14th Dist.] 2019, pet. denied). In construing the Act and determining its applicability, we review statutory construction issues de novo. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). Similarly, whether the parties have met their respective burdens is a question of law that we review de novo. See Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019). Under the de novo standard, we “make an independent determination and apply the same standard used by the trial court in the first instance.” Fawcett v. Grosu, 498 S.W.3d 650, 656 (Tex. App.— Houston [14th Dist.] 2016, pet. denied) (internal quotation omitted). We apply this standard of review to a relatively limited universe of evidence. Courts must consider the relevant pleadings and any supporting or opposing affidavits “stating the facts on which the liability or defense is based.” Tex. Civ. Prac. & Rem. Code § 27.006(a). We review this evidence in the light most favorable to the nonmovant. See Brugger v. Swinford, No. 14-16-00069-CV, 2016 WL 4444036, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.). The Commercial Speech Exemption Round Table argues that the TCPA applies because filing a notice of lien under chapter 55 implicates both the right to free speech and the right to petition. Medina does not dispute that Round Table’s notice of lien implicates these rights, so we will presume without deciding that Round Table met its initial burden to show that the Act applies. We consider only whether Medina is correct that her legal action is exempted from the Act’s requirements because the communication or conduct at issue—Round Table’s notice of lien—constitutes commercial speech. See 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”); see also Tex. R. App. P. 47.1. Under the commercial speech exemption, the TCPA does not apply: to a 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 an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer. Tex. Civ. Prac. & Rem. Code § 27.010(b). Medina had the burden to prove that the commercial speech exemption applies by a preponderance of the evidence. See Hieber, 591 S.W.3d at 211 (citing Abatecola v. 2 Savages Concrete Pumping, LLC, No. 14-17-00678-CV, 2018 WL 3118601, at *10 (Tex. App.—Houston [14th Dist.] June 26, 2018, pet. denied) (mem. op.)). Addressing Medina’s argument requires us to construe and apply statutory text. In interpreting statutes, our primary purpose is to give effect to the legislature’s intent by relying on the plain meaning of the text adopted by the legislature, unless a different meaning is supplied by statutory definition or is apparent from the context, or the plain meaning leads to absurd results. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010); see also Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 494 (Tex. 2013) (“[O]ur primary objective in construing a statute is to ascertain and give effect to the Legislature’s intent.”). “We construe a statute’s words according to their plain and common meaning unless they are statutorily defined otherwise, a different meaning is apparent from the context, or unless such a construction leads to absurd results.” Union Carbide Corp. v. Synatzske, 438 S.W.3d 39, 52 (Tex. 2014). “We take statutes as we find them, presuming the Legislature included words that it intended to include and omitted words it intended to omit.” Id. “We do not read words into a statute to make it what we consider to be more reasonable, rather we may do so only to prevent an absurd result.” Id. The Supreme Court of Texas clarified section 27.010(b)’s proper construction in Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (per curiam). The exemption applies when: the defendant was primarily engaged in the business of selling or leasing goods, the defendant made the statement or engaged in the conduct on which the claim is based in the defendant’s capacity as a seller or lessor of those goods or services, the statement or conduct at issue arose out of a commercial transaction involving the kind of goods or services the defendant provides, and the intended audience of the statement or conduct were actual or potential customers of the defendant for the kind of goods or services the defendant provides. Id. at 688. Thus, the court continued, “the commercial-speech exemption applies only to certain communications related to a good, product, or service in the marketplace—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.” Id. at 690 (internal quotation omitted). Application Medina argues that the commercial speech exemption applies because, inter alia, Round Table is primarily engaged in the business of selling health care services and that Round Table filed the notice of lien in that capacity. See id. at 688 (discussing the first two requirements of commercial speech exemption). There is no dispute that Round Table provides health care services and that it bills for those same services. But Round Table responds that its primary business— treating injured patients—is not a “commercial activity” because selling medical services is “merely ancillary to [its] primary business of treating sick and injured patients.” Our sister court in Houston has twice rejected this precise argument. See Sanders as Next Friend of Ejiofor v. Bansal, No. 01-18-00508-CV, 2019 WL 7341660, at *4 (Tex. App.—Houston [1st Dist.] Dec. 31, 2019, pet. denied) (mem. op.);[5] 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 First Court of Appeals stated that, by filing a notice of hospital lien to secure the lien for medical services rendered, a health care provider acts in its capacity “as a seller of the healthcare services” it had provided to the plaintiff. Sanders, 2019 WL 7341660, at *4; see also Norvil, 580 S.W.3d at 286 (“The business of selling or leasing goods or services and the business of treating sick and injured people are not mutually exclusive activities.”). Round Table filed the notice of lien in its capacity as a seller of health care services—i.e., it filed the notice of lien to protect its right to secure payment for the services rendered to Medina. We therefore conclude that Round Table was primarily engaged in the business of selling health care services and it filed the notice of lien in that capacity. See Sanders, 2019 WL 7341660, at *4; Norvil, 580 S.W.3d at 286. We next turn to Castleman‘s third requirement: that the communication or conduct arose out of a commercial transaction involving the kind of services Round Table provided. Round Table does not dispute that it filed the notice of lien to secure payment for the health care services it provided to Medina, but it nonetheless contends the notice of lien is not commercial speech. According to Round Table, for a statement to arise out of a commercial transaction, it must be made for the purpose of securing a future sale, not an already completed transaction. For this proposition, Round Table reads Castleman as holding that the commercial speech exemption applies only to statements made for the purpose of securing sales—i.e., proposed transactions, not completed transactions. We disagree that Castleman can or should be read so narrowly. Castleman simply explains that the statement or conduct at issue must “ar[i]se out of a commercial transaction involving the kind of goods or services the defendant provides.” Castleman, 546 S.W.3d at 688. We determine today, as the First Court of Appeals previously has determined, that Castleman does not limit the exemption’s applicability only to speech or conduct intended to secure future transactions. See Norvil, 580 S.W.3d at 286. This is evident from the statutory language that encompasses statements or conduct arising out of the sale of services in which the intended audience is an “actual” customer, which includes customers who have already consummated a commercial transaction with the defendant. See Tex. Civ. Prac. & Rem. Code § 27.010(b). Here, because Round Table’s notice of lien “arose out of a commercial transaction involving the kind of . . . services” Round Table provides, the requirement is satisfied. Castleman, 546 S.W.3d at 688; see also Norvil, 580 S.W.3d at 286 (holding that hospital lien “arose out of a commercial transaction” involving provision of health care services). Finally, Medina argues that she was an actual customer of Round Table’s health care services and thus was the intended audience of the notice of lien. See Castleman, 546 S.W.3d at 689 (stating that intended audience of statement or conduct must be defendant’s actual or potential customers for kind of goods or services defendant provides). Round Table disagrees and contends that the intended audience was the public at large and did not include Medina. Other courts of appeals have held that, because a hospital has no contractual or tort rights against a third-party tortfeasor, “the only true support for a hospital lien is via a claim for reimbursement,” which “is necessarily a claim against [the patient] as the owner of those proceeds.” E. Tex. Med. Ctr. Athens v. Hernandez, No. 12-17- 00333-CV, 2018 WL 2440508, at *4 (Tex. App.—Tyler May 31, 2018, pet. denied) (mem. op.) (citing Daughters of Charity Health Servs. of Waco v. Linnstaedter, 226 S.W.3d 409, 411 (Tex. 2007)); see also Sanders, 2019 WL 7341660, at *6; Norvil, 580 S.W.3d at 286. In other words, a provider’s lien against a patient’s tort recovery is a claim against the patient, and therefore Medina, as Round Table’s patient and actual customer, is included within Round Table’s intended audience in filing a notice of lien. See Sanders, 2019 WL 7341660, at *6; Norvil, 580 S.W.3d at 286; see also Schmidt v. Crawford, 584 S.W.3d 640, 654 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (explaining that 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”); Linnstaedter, 226 S.W.3d at 411 (“[A] lien against a patient’s tort recovery is just as much a claim against the patient as if it were filed against the patient’s house, car, or bank account.”). We agree with the reasoning articulated in these decisions. Further, the text of Property Code section 55.005 buttresses our holding that Medina, as Round Table’s actual customer for health-care services, qualifies as a member of the “intended audience” for purposes of the commercial speech exemption. Subsection 55.005(a) requires the provider to file a notice of lien with the county clerk of the county in which the services were provided. Tex. Prop. Code § 55.005(a). Additionally, the health care provider must mail the injured patient written notice that the lien has been claimed. Id. § 55.005(a), (d). We can accept, as our dissenting colleague observes, that these are separate communications and that the notice of lien filed with the county clerk communicates to those liable or indebted to the individual who received the services the fact that a lien has been claimed. See id. § 55.005(a), (b). But filing a notice of lien with the county clerk cannot by itself “secure the lien.” See id. § 55.005(a). To secure the lien, the provider must give written notice to the patient that the lien has been claimed. In this regard, the patient is also part of the provider’s intended audience because she has a statutory right to know—and the provider has a statutory duty to inform her—that a medical lien has been asserted against her, and thus the provider has demanded reimbursement out of any recovery the patient may receive from the responsible parties. The notice of lien filed with the county clerk and the notice to the patient may be separate communications, but the notice to the patient is intended to inform her of the lien’s existence. After considering the language of the TCPA’s commercial speech exemption in light of Castleman and other relevant authority, we conclude that Medina met her burden of establishing each element of the exemption in section 27.010(b). Accordingly, we hold that Round Table’s notice of lien is commercial speech exempt from the TCPA’s dismissal procedures, and as such, cannot support dismissal of Medina’s declaratory judgment and fraudulent lien claims.[6] Conclusion We affirm the trial court’s order. s/ Kevin Jewell Justice Panel consists of Chief Justice Frost and Justices Jewell and Spain (Frost, C.J., dissenting).
