Baylor Scott & White v. Project Rose MSO, LLC, Touchdown Interception, LLC, Individually and Derivatively on Behalf of 62 Roses, LLC ( 2021 )


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  •                                       NO. 12-20-00246-CV
    IN THE COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT
    TYLER, TEXAS
    BAYLOR SCOTT & WHITE,                                  §       APPEAL FROM THE 7TH
    APPELLANT
    V.
    PROJECT ROSE MSO, LLC,                                 §       JUDICIAL DISTRICT COURT
    TOUCHDOWN INTERCEPTION, LLC,
    INDIVIDUALLY AND
    DERIVATIVELY ON BEHALF OF 62
    ROSES, LLC,
    APPELLEES                                              §       SMITH COUNTY, TEXAS
    OPINION
    Baylor Scott & White (BSW) appeals the trial court’s denial of its Texas Citizens
    Participation Act (TCPA) motion to dismiss the counterclaim against it filed by Project Rose
    MSO, LLC; Touchdown Interception, LLC, Individually and Derivatively on Behalf of 62
    Roses, LLC (collectively “Rose” unless otherwise indicated). We affirm in part and reverse and
    remand in part.
    BACKGROUND 1
    In 2015, Texas Spine and Joint Hospital began discussions with former National Football
    League (NFL) players Earl Campbell and Gary Baxter about a business venture establishing a
    cutting-edge sports science and medical facility at the Spine and Joint Hospital facility in Tyler,
    Texas. These discussions continued throughout 2015 and early 2016, leading Campbell and
    Baxter to form several new entities, including Project Rose and Touchdown Interception.
    1
    The recitation of the facts in this opinion is based on the pleadings and evidence as they have been
    developed at this early stage of the litigation. We recognize that the parties have not yet conducted discovery.
    1
    Touchdown Interception and Texas Spine and Joint executed a Company Agreement to form 62
    Roses to develop and operate the facility.
    The parties entered several contracts in 2017 and 2018, including a Lease Agreement, a
    License Agreement, and a Consultant Agreement. Under the Consulting Agreement, Project
    Rose was to provide consulting services to Texas Spine and Joint related to the facility’s
    marketing, construction, and operation. Due to the high-profile nature of the parties and the
    facility, the venture generated significant public interest from the community and the press.
    Rose alleges that it was not compensated for its efforts as promised under the agreements.
    Rather, according to it, Texas Spine and Joint strung Rose along and encouraged its owners to
    continue their efforts to market the facility and provide the services they agreed upon. Rose
    alleges that Texas Spine and Joint represented to it that compensation would be forthcoming
    after recouping its capital expenditures in developing it, but that it never came.
    Shortly prior to the scheduled opening, Baxter and Campbell noticed that the facility’s
    logo changed to include Baylor Scott & White in its title. After further investigation, Rose
    alleges that it learned that Texas Spine and Joint sold a controlling portion of its interest in the
    venture to a Baylor Scott & White entity. Rose alleges that BSW is a controlled affiliate of this
    entity that took part in the purchase, and that the sale violates Texas Spine and Joint’s
    agreements with Rose.
    Rose contends that the facility opened and became a successful venture, but Texas Spine
    and Joint repudiated their agreements. Rose alleges that Texas Spine and Joint and BSW, along
    with the other third-party defendants, engaged in a fraudulent scheme and conspired to profit
    from Rose’s efforts in bringing the facility to fruition, without ever providing any compensation
    to it.
    According to BSW, Texas Spine and Joint received little assistance from Rose in building
    the facility, and because it had little to show for its investments, it gave notice of termination of
    the License Agreement, the Consultant Agreement, and the Lease Agreement in August 2019. In
    response, Project Rose sent invoices to Texas Spine and Joint for hourly consulting work totaling
    $4,319,370. Texas Spine and Joint disputed the validity of the invoices, and according to it,
    Baxter threatened to hold a press conference announcing litigation against it.
    2
    Accordingly, Texas Spine and Joint preemptively filed suit against Rose, including
    claims for breach of the Consultant Agreement, a declaratory judgment that it had not breached
    the Consultant Agreement, and a request to wind up 62 Roses’ business.
    Rose filed a counterclaim against Texas Spine and Joint and added third-party claims
    against several third-party defendants, including BSW (we refer to this claim, including the
    third-party claim against BSW, as a “counterclaim” for ease of reference). Specifically, Rose’s
    counterclaim included the following causes of action against BSW: (1) fraudulent inducement
    and fraud; (2) tortious interference with existing contract; (3) theft of trade secrets and
    intellectual property under the Texas Theft Liability Act (TTLA) and Texas Uniform Trade
    Secrets Act (TUTSA); (4) unfair competition; (5) common-law misappropriation; (6) promissory
    estoppel/detrimental reliance; (7) quantum meruit; (8) unjust enrichment; (9) money had and
    received; (10) civil conspiracy; (11) aiding and abetting and knowingly participating in Texas
    Spine and Joint’s alleged breaches of fiduciary duties; and (12) a declaratory judgment that the
    2017 sale of ownership in the facility is void. 2
    BSW answered the counterclaim with a general denial and also asserted that it was not a
    proper party to the suit. BSW moved to dismiss Rose’s counterclaim under the TCPA. The trial
    court denied the TCPA motion to dismiss. Rose amended its petition to join other third-party
    defendants as parties to the dispute, who similarly filed motions to dismiss under the TCPA. The
    trial court denied a request for discovery and overruled BSW’s TCPA motion. BSW filed this
    interlocutory appeal challenging the trial court’s denial of its motion. 3
    TCPA 4
    In BSW’s first issue, it contends that the trial court erred in denying its TCPA motion to
    dismiss Rose’s counterclaim because (1) its claims are based on BSW’s exercise of its rights of
    2
    In addition to these causes of action, Rose also pleaded other causes of action against Texas Spine and
    Joint that are not part of this interlocutory appeal and are unaffected by our opinion.
    3
    See TEX. CIV. PRAC. & REM. CODE ANN. § 27.008 (West 2020) (authorizing expedited appeal). The
    parties in the underlying suit await our disposition of this appeal before moving forward on their companion TCPA
    motions filed by the other third-party defendants after the trial court overruled BSW’s motion.
    4
    The Texas Legislature recently amended the TCPA. See Act of May 17, 2019, 86th Leg., R.S., ch. 378,
    
    2019 Tex. Gen. Laws 684
    . These revisions apply to actions filed on or after September 1, 2019. 
    Id.
     §§ 11–12, 2019
    Tex. Gen. Laws at 687. The underlying lawsuit was filed on February 24, 2020. Rose joined BSW as a third-party
    defendant and filed its counterclaim on April 17, 2020. Therefore, as the parties agree, the current revised version of
    the TCPA controls. See id.
    3
    free speech and association and that no exemption applies, 5 thereby implicating the TCPA; (2)
    Rose failed to establish by clear and specific evidence a prima facie case of each essential
    element of its claims against BSW; and (3) in any event, BSW established that it is entitled to
    judgment as a matter of law because Rose sued the wrong party. In its second issue, BSW
    contends that the trial court erred by failing to sustain its objections to Rose’s evidence.
    Standard of Review
    We consider de novo the legal question of whether the movant has established by a
    preponderance of the evidence that the challenged legal action is covered by the TCPA.
    MediaOne, L.L.C. v. Henderson, 
    592 S.W.3d 933
    , 939 (Tex. App.—Tyler 2019, pet. denied)
    (citing Serafine v. Blunt, 
    466 S.W.3d 352
    , 357 (Tex. App.—Austin 2015, no pet.)). We also
    review de novo a trial court’s determination of whether a nonmovant has presented clear and
    specific evidence establishing a prima facie case of each essential element of the challenged
    claims. 
    Id.
     Similarly, we review questions of statutory construction de novo. 
    Id.
     (citing
    Molinet v. Kimbrell, 
    356 S.W.3d 407
    , 411 (Tex. 2011)). We review the pleadings and the
    evidence in the light most favorable to the nonmovant. 
    Id.
     (citing Dolcefino v. Cypress Creek
    EMS, 
    540 S.W.3d 194
    , 199 (Tex. App.—Houston [1st Dist.] 2017, no pet.)).
    General TCPA Framework
    The stated purpose of the TCPA 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.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002
    (West 2020).
    To accomplish this objective, 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
    , 295–96 (Tex. 2021)
    (citing Castleman v. Internet Money Ltd., 
    546 S.W.3d 684
    , 686 (Tex. 2018) (per curiam)).
    First, the movant must demonstrate that the “legal action” is “based on or is in response to” its
    exercise of the right of speech, petition, or association. TEX. CIV. PRAC. & REM. CODE ANN.
    §§ 27.003(a) (West 2020), 27.005(b) (West Supp. 2020). Second, if the movant meets that
    burden, the nonmovant may avoid dismissal by establishing “by clear and specific evidence a
    5
    BSW concedes that Rose’s common law fraud cause of action is exempt from the TCPA. See TEX. CIV.
    PRAC. & REM. CODE ANN. § 27.010(a)(12). BSW expressly challenges the applicability of any other exemption.
    4
    prima facie case for each essential element of the claim in question.” Id. § 27.005(c). Finally, if
    the nonmovant satisfies that burden, the court still must dismiss the “legal action” if the movant
    “establishes an affirmative defense or other grounds on which the moving party is entitled to
    judgment as a matter of law.” Id. § 27.005(d).
    Intertwined with and overlying this multi-step dismissal process is the TCPA provision
    exempting certain actions from its application. 6 See id. § 27.010 (West 2020); Morrison v.
    Profanchik, 
    578 S.W.3d 676
    , 680 (Tex. App.—Austin 2019, no pet.). When invoked, the trial
    court must consider an exemption’s applicability after and in the context of the movant having
    met its initial burden under the first step of the dismissal process. See Castleman, 546 S.W.3d at
    688; Morrison, 578 S.W.3d at 680.
    THE TCPA’S APPLICABILITY
    BSW contends that the TCPA applies to Rose’s counterclaim, because it is based on or in
    response to BSW’s exercise of the right of free speech, or alternatively, its right of association.
    Governing Law - Exercise of the Right of Free Speech
    In relevant part, a “legal action” means a lawsuit, cause of action, petition, complaint,
    cross-claim, or counterclaim or any other judicial pleading or filing that requests legal,
    declaratory, or equitable relief. TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(6) (West 2020).
    “Based on or in response to” is not defined in the statutory scheme.                          Prior to the 2019
    amendments, the statute provided that a TCPA motion to dismiss could be predicated on a legal
    action “based on, related to, or in response to a party’s exercise of the right of free speech . . . .”
    See Act of June 17, 2011, 82nd Leg., R.S., ch. 341, 2011 Tex. Sess. Law. Serv. 960 (amended
    2019) (current version at TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(b)). It is unclear
    how the removal of the “relates to” language affects this nexus requirement. See Mark C.
    Walker, The Essential Guide to the Texas Anti-SLAPP Law, the Texas Defamation Mitigation
    Act, and Rule 91a, 91 THE ADVOC. (TEXAS) 280, 297-99 (2020) (discussing evolution of TCPA,
    including 2019 amendments and issues raised thereby).
    6
    We note that although Texas courts have described the TCPA as a three-step process, it may actually be
    now better described as a four-step process: (1) Does the movant demonstrate that the TCPA applies to the legal
    action; (2) Does the nonmovant show that any statutory exemptions remove some or all of its claims from the
    TCPA’s scope; (3) Does the nonmovant meet its burden to establish a prima facie case on non-exempted causes of
    action; and (4) Does the movant establish a defense or other ground entitling it to judgment as a matter of law? This
    has become more apparent as the Legislature greatly increased the number of exemptions in its 2019 amendments to
    the TCPA.
    5
    Texas courts have used the plain and ordinary meaning of such words and phrases
    derived from relevant dictionary sources in the past. For example, the Texas Supreme Court
    recently described the definition for “related to” in the TCPA in part as defined by Black’s Law
    Dictionary. See In re City of Galveston, 
    622 S.W.3d 851
    , 858 n.28 (Tex. 2021). Similarly,
    another court recently used dictionary definitions of the word “common” in the TCPA “exercise
    of the right of association” context. See Kawcak v. Antero Res. Corp., 
    582 S.W.3d 566
    , 575-78
    (Tex. App.—Fort Worth 2019, pet. denied).
    “Based on” in Black’s Law Dictionary is defined only in the copyright context. See
    Based on, BLACK’S LAW DICTIONARY (10th ed. 2009). However, the verb “base” is defined in
    relevant part as “to make, form, or serve as a foundation for . . . [;] to establish (an agreement,
    conclusion, etc.); to place on a foundation; to ground . . . .”        See Base, BLACK’S LAW
    DICTIONARY (10th ed. 2009).       Similarly, “base” is defined in another dictionary as “[t]he
    fundamental principle or underlying concept of a system or theory; basis; a fundamental
    ingredient; chief constituent . . . [;] the fact, observation, or premise from which a reasoning
    process is begun . . . .” See Base, THE AM. HERITAGE COLL. DICTIONARY (2d ed. 1982).
    Whatever the exact contours of the phrase “based on” means after the Legislature’s
    amendment removing the phrase “related to,” Texas courts, including this Court, have stated that
    the TCPA’s required nexus is satisfied at minimum for legal actions that “are factually
    predicated on” allegations of conduct that fall within one of the TCPA’s protected rights. See,
    e.g., Dyer v. Medoc Health Servs., LLC, 
    573 S.W.3d 418
    , 429 (Tex. App.—Dallas 2019, pet.
    denied); Grant v. Pivot Tech. Sols., Ltd., 
    556 S.W.3d 865
    , 879 (Tex. App.—Austin 2018, pet.
    denied); Morgan v. Clements Fluids S. Tex., LTD., 
    589 S.W.3d 177
    , 185 (Tex. App.—Tyler
    2018, no pet.). The level of nexus required “includes no qualification as to its limits,” and is
    very broad. See Coleman, 512 S.W.3d at 901; see also Grant, 556 S.W.3d at 879-80 (citing
    Cavin v. Abbott, 
    545 S.W.3d 47
    , 70 (Tex. App.—Austin 2017, no pet.)). A plaintiff’s claims are
    “in response to” a protected activity when they react to or are asserted subsequently to the
    communication. See Grant, 556 S.W.3d at 880.
    Moreover, overlaid on top of this nexus requirement, at least in the exercise of free
    speech context, is the definition that the “exercise of the right of free speech” means “a
    communication made in connection with a matter of public concern.” TEX. CIV. PRAC. & REM.
    CODE ANN. § 27.001(3) (emphasis added). Texas courts have interpreted this phrase to mean
    6
    that the statute requires only that the communication have a “tangential relationship” to such a
    matter, and the connection need not be more than “tenuous or remote.” Coleman, 512 S.W.3d at
    900-01. Importantly, the legislature left this definition and ensuing caselaw undisturbed in the
    2019 amendments to the TCPA.
    “Communication” includes 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). Private communications made in connection with a matter of
    public concern fall within the TCPA’s definition of the exercise of the right of free speech.
    Lippincott v. Whisenhunt, 
    462 S.W.3d 507
    , 509 (Tex. 2015) (per curiam). Further, the TCPA
    does not require that the communications specifically mention a matter of public concern or have
    more than a “tangential relationship” to such a matter. Coleman, 512 S.W.3d at 900. Rather, the
    TCPA applies so long as the movant’s statements are “in connection with” any of the matters of
    public concern listed in the statute. See id.
    The 2019 legislative amendments modified the definition of “matter of public concern” to
    mean 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. TEX. CIV. & PRAC. CODE ANN. § 27.001(7).
    In determining whether the TCPA is applicable, we conduct “a holistic review of the
    pleadings.” Adams v. Starside Custom Builders, LLC, 
    547 S.W.3d 890
    , 897 (Tex. 2018). Our
    analysis is not constrained by the “precise legal arguments or record references” made by the
    moving party regarding the TCPA’s applicability. 
    Id.
     Rather, our focus is “on the pleadings and
    on whether, as a matter of law, they are based on or [in response to] to a matter of public
    concern.” 
    Id.
     In the final analysis then, “[w]hen it is clear from the [nonmovant’s] pleadings
    that the action is covered by the [TCPA], the [movant] need show no more.” 
    Id.
     (quoting Hersh
    v. Tatum, 
    526 S.W.3d 462
    , 467 (Tex. 2017)); see also Coleman, 512 S.W.3d at 901–02
    (concluding as a matter of law that private statements by movants concerning plaintiff’s alleged
    failure to gauge a storage tank related to a matter of public concern); Lippincott, 462 S.W.3d at
    510 (concluding as a matter of law that provision of medical services by a health care
    professional was a matter of public concern).
    7
    The TCPA Applies to Rose’s Counterclaim as an Exercise of the Right of Free Speech
    BSW asserts that the TCPA applies to Rose’s counterclaim, including all causes of action
    as part of that counterclaim, because they are based on or in response to its exercise of the right
    to free speech and association. The pleadings, especially the plaintiff’s allegations, are the best
    evidence to determine the nature of a legal action and the applicability of the TCPA. See Hersh,
    526 S.W.3d at 467.
    The gravamen of Rose’s counterclaim is that Texas Spine and Joint, along with all the
    other defendants, including BSW, acted in a concerted scheme to take advantage of Rose’s
    owners’ notoriety, celebrity, professional contacts and relationships, as well as their expertise in
    what would be attractive to a prospective patient, without having the reciprocal obligation to
    compensate them for their efforts. The communications at issue forming the basis of the suit
    have at least a tenuous, remote, or tangential relationship to a matter of public concern.
    There is little doubt that the legislature amended the TCPA, at least in part, to curtail the
    overly broad language and applicability of its framework. Indeed, Rose points to a recent Texas
    Supreme Court case holding that “[a] private contract dispute affecting only the fortunes of the
    private parties involved is simply not a ‘matter of public concern’ under any tenable
    understanding of those words.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 
    591 S.W.3d 127
    , 137 (Tex. 2019). Rose argues that the dispute here involves only private contract
    and tort claims arising out of its business dealings, and that as it involves only private parties, the
    dispute is not a matter of public concern, and the TCPA does not apply to its counterclaim.
    While we are bound by this holding, we do not agree that it applies under the particular
    facts of this case. In making its holding, the Court stated as follows:
    The record is devoid of allegations or evidence that the dispute had any relevance to the broader
    marketplace or otherwise could reasonably be characterized as involving public concerns. On the
    contrary, the alleged communications were made to two private parties concerning modest
    production at a single [oil and gas] well. These communications, with a limited business audience
    concerning a private contract dispute, do not relate to a matter of public concern under the TCPA.
    Id. at 136 (footnote omitted). The Court went on to explain that “[w]e have previously held that
    private communications are sometimes covered by the TCPA.” Id. (citing Coleman, 
    512 S.W.3d 895
    ; Lippincott, 
    462 S.W.3d 507
    ). The Court stated, “These prior cases involved environmental,
    health, or safety concerns that had public relevance beyond the pecuniary interests of the private
    8
    parties involved,” and that those cases involved matters of public concern expressly defined in
    the statute to include issues related to “health or safety,” and “environmental, economic, or
    community well-being,” concerns not implicated in Creative Oil. See 
    id.
     (citing Coleman, 
    512 S.W.3d at 898, 901
     (concluding that private statements by movants concerning plaintiff’s alleged
    failure to gauge a storage tank related to a matter of public concern due to “serious safety and
    environmental risks”); Lippincott, 462 S.W.3d at 509–10 (concluding that alleged improper
    provision of medical services by a health care professional are matters of public concern)).
    Rather than entirely foreclosing private business disputes from the TCPA’s scope, the
    Texas Supreme Court left open the possibility that such cases may still implicate the TCPA as a
    matter of public concern if its subject matter otherwise falls within the TCPA’s definitional
    scope or when it has public relevance beyond the purely private interests of the parties involved
    in the dispute. 7
    Rose also relies on a case transferred from this Court to the Texarkana Court of Appeals. 8
    See Martin v. Hutchison, No. 06-19-00093-CV, 
    2020 WL 6788243
    , at *9-10 (Tex. App.—
    Texarkana Nov. 19, 2020, pet. denied) (mem. op.). Following Creative Oil, the Texarkana Court
    held in Martin that a dispute concerning the distribution of proceeds from the transfer of an asset
    among the shareholders in a closely-held, ten shareholder corporation with no publicly traded
    stock, was a purely private business dispute with no potential relevance or impact on the wider
    community or public-at-large. See 
    id.
     As such, the court concluded that the TCPA did not
    apply. See 
    id.
     We agree that Martin is similar to Creative Oil and was the correct holding. 9 But
    again, we conclude that this case is distinguishable.
    The Texas Supreme Court also stated in Creative Oil that “[i]t is not the Court’s task to
    choose between competing policies addressed by legislative drafting[,]” and that “[w]e apply the
    7
    This is in contrast to the amendments to the “right of association” prong, which Texas courts have
    generally interpreted to require the “common interest” to be a common interest with the public-at-large, and that the
    right of association does not encompass or protect activity of two tortfeasors conspiring to act tortiously for their
    own selfish benefit. See, e.g., Gaskamp v. WSP USA, Inc., 
    596 S.W.3d 457
    , 476 (Tex. App.—Houston [1st Dist.]
    2020, pet. dism’d) (op. on reh’g en banc); Kawcak v. Antero Res. Corp., 
    582 S.W.3d 566
    , 588 (Tex. App.—Fort
    Worth 2019, pet. denied).
    8
    Rose also relies on other cases decided before Creative Oil. See, e.g., Dyer v. Medoc Health Servs., LLC,
    
    573 S.W.3d 418
    , 428 (Tex. App.—Dallas 2019, pet. denied). Since the Texas Supreme Court provides more recent
    analysis in Creative Oil, we instead focus on it and subsequent cases interpreting it.
    9
    Martin also discusses other pre- and post-Creative Oil cases relied upon by Rose that are similarly
    distinguishable from the instant case.
    9
    mandates in the statute as written.” Creative Oil, 591 S.W.3d at 133. Rose’s counterclaim falls
    within the TCPA’s exercise of free speech prong because it is based on or in response to
    communications made in connection with a matter of public concern as that definition has been
    modified by the Legislature’s recent amendments.
    In contrast to the Creative Oil line of cases, this case involves prominent celebrities. See
    TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7) (including within the TCPA’s scope statements
    or activities regarding public figures or other persons who have drawn substantial public
    attention due to their official acts, fame, notoriety, or celebrity).       The formation of the
    relationship between the parties was based in part on their celebrity status and the attention that
    fact would bring to their business venture. This business venture did in fact lead to significant
    interest in the community, as it was covered by several media outlets, and it pertains to a world-
    class sports medicine facility. Their involvement in the project was specifically designed to be a
    matter of public concern, because the parties, by design, utilized the media and press coverage to
    foster public interest in the project.
    In fact, the media followed the progression of the project with substantial press coverage.
    For example, one article discussed a VIP tour and reception at the facility including the
    involvement of other NFL celebrities such as Mike Singletary and Robert Brazile, along with
    Butch Myers and Cash Myers, who are prominent rodeo competitors. This article discussed the
    NFL’s involvement in the project, and that it would attract many former and current NFL players
    and other elite athletes. The news article, along with others BSW attached to its motion, further
    discussed that the facility features the latest innovations in modern fitness and rehabilitation
    equipment, and will have a significant role as a biomedical research and treatment facility on a
    wide array of sports injuries, from muscle tears to concussions and other topics of concern to the
    public. The articles also focused on the facility’s creation of jobs, along with the broader
    economic impact it could have on the local community by attracting retired and current athletes
    due to their notoriety, which would in turn attract the public-at-large.
    Rose’s counterclaim is in response to the private communications and the ensuing alleged
    agreements between Texas Spine and Joint and BSW, along with the other third-party
    defendants, to deprive Rose, which is operated by notable public figures, of the fruits of their
    labor and compensation by committing various acts of fraud, interference with their relationship
    with Texas Spine and Joint, and misappropriation of trade secrets, along with various remedies to
    10
    compensate them for this wrongdoing. These communications that led to agreements, which are
    communications in and of themselves, were made regarding Rose’s owners, who are public
    figures. Therefore, we reject Rose’s argument that its counterclaim is in response to BSW’s
    conduct in financing the acquisition of the facility rather than its communications and ensuing
    agreements to deprive it of the expected benefits of the business venture.
    Furthermore, the fallout by the repudiation of the venture by Texas Spine and Joint, based
    on this alleged scheme involving agreements between it, BSW, and the other third-party
    defendants, to acquire the facility without compensating Rose, is also a matter of public concern.
    Texas Spine and Joint’s and BSW’s alleged agreements, which are communications, have
    relevance to the public beyond the purely private business dispute. The communications have an
    effect on whether the facility would ever come to fruition, and limit Rose’s involvement in the
    project. In fact, after learning of the repudiation, Baxter allegedly threatened to go to the media
    to force Texas Spine and Joint, BSW, and the other third-party defendants to cease their
    allegedly tortious conduct and galvanize support for Rose. This further bolsters the connection
    with the communications and the community’s interest in the venture and its dissolution.
    Therefore, we hold that the TCPA applies to Rose’s counterclaim under these unique
    circumstances. See, e.g., Montano v. Cronan, No. 09-20-00232-CV, 
    2021 WL 2963801
    , at *5
    (Tex. App.—Beaumont July 15, 2021, no pet. h.) (mem. op.) (applying 2019 amendments and
    holding that TCPA applied to plaintiff’s claim because retaliatory defamatory statements by
    defendants were made in response to plaintiff’s allegations, which were not purely private
    matters, but pertained to “a subject of general interest and of value and concern to the public”
    because of involvement of rowing clubs, U.S.A. Rowing, and safety and welfare concerns).
    Finally, we are unpersuaded by Rose’s argument that its owners’ status as public figures
    has no bearing on the TCPA applicability determination. Obviously, the communication must be
    “made in connection with the matter of public concern,” but the definition of “matter of public
    concern” does not require that the statement or activity be regarding a public figure who is a
    party. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7). Rather, it must be regarding a
    public figure. See id. Rose’s owners’ status as public figures, along with the fact that Rose is a
    party, provides the nexus linking the communications’ relevance to a matter of public concern.
    In summary, under the unique circumstances of this case, even though the Legislature’s
    amendments show an intent to limit the applicability of the TCPA, we must apply it as written.
    11
    It is apparent from the pleadings that the TCPA applies, and BSW need show no more. That is,
    BSW demonstrated based on Rose’s pleadings that the communications had at least a tangential,
    remote, or tenuous relationship to a matter regarding the owners of Rose, who are public figures
    on a matter of public concern—namely the completion and operation of the world-class sports
    medicine and research facility, which did in fact generate considerable public interest through
    press and media coverage. The alleged private communications between Texas Spine and Joint
    and BSW resulted in an agreement, which is in itself a communication, to acquire the facility that
    became successful due to Rose’s owners’ notoriety.          Rose’s suit is in response to those
    communications. Thus, while these communications resulting in this dispute no doubt have an
    effect on the private financial interests of the parties involved, it also had a wider impact on the
    public-at-large as a matter of public importance. In other words, contrary to the Creative Oil line
    of cases, Rose’s counterclaim is in response to BSW’s exercise of its right of speech on a matter
    of public importance, which implicates the TCPA.
    Because we have concluded that Rose’s counterclaim is based on or is in response to
    BSW’s exercise of the right of free speech, we need not consider the argument that it separately
    applies under the right of association ground. See TEX. R. APP. P. 47.1; Coleman, 
    512 S.W.3d at
    901–02 (“Because we hold that, on this record, the communications were made in the exercise of
    the right of free speech under the TCPA, we need not reach [the issue of whether the TCPA
    applies under the “right of association prong.]”).
    We sustain the portion of BSW’s first issue contending that the trial court erroneously
    concluded that the TCPA does not apply to Rose’s counterclaim.
    TCPA EXEMPTIONS
    Rose contends that the TCPA’s fraud and misappropriation of trade secrets and corporate
    opportunities exemptions apply and absolve it of its duty to make a prima facie case on these and
    related claims.
    TCPA Exemption Standard of Review
    The party asserting a TCPA exemption bears the burden of proving its applicability. See
    Hieber v. Percheron Holdings, LLC, 
    591 S.W.3d 208
    , 211 (Tex. App.—Houston [14th Dist.]
    2019, pet. denied). Just as determining the applicability of the TCPA, the applicability of an
    12
    exemption may be determined from the pleadings. 10                  See Gaskamp v. WSP USA, Inc., 
    596 S.W.3d 457
    , 480 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (noting we may rely on
    allegations in petition to satisfy exemption requirements); see also Hawkins v. Fox Corp.
    Housing, LLC, 
    606 S.W.3d 41
    , 46 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (same); see
    also Hersh, 526 S.W.3d at 467. It would be incongruous to require the nonmovant to prove the
    elements of these causes of action to show that the exemption applies in order to avoid making
    the prima facie case of the claim’s elements to survive the TCPA motion to dismiss. See Round
    Table Physicians Group, PLLC v. Kilgore, 
    607 S.W.3d 878
    , 883 (Tex. App.—Houston [14th
    Dist.] 2020, pet. denied) (noting that application of exemption means nonmovant need not make
    its prima facie case). We also review this evidence in the light most favorable to the nonmovant.
    Hieber, 591 S.W.3d at 211.
    If an action falls under a TCPA exemption, the TCPA does not apply and may not be
    used to dismiss the action. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010; Best v. Harper,
    
    562 S.W.3d 1
    , 11 (Tex. 2018). Accordingly, application of an exemption means the nonmovant
    need not make its prima facie case. See Round Table Physicians Group, 607 S.W.3d at 883; see
    also Atlas Survival Shelters, LLC v. Scott, No. 12-20-00054-CV, 
    2020 WL 6788714
    , at *6 (Tex.
    App.—Tyler Nov. 18, 2020, no pet.) (mem. op.).
    Rose’s Common Law Fraud Claim Does Not Exempt Entire Counterclaim From TCPA
    BSW conceded that Rose’s common law fraud claim is exempt from the TCPA. See
    TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(a)(12). Rose argues that all of its causes of action
    are part of its “counterclaim” as a single “legal action” under the TCPA, the definition of which
    includes not only individual causes of action, but also its “counterclaim” and its entire “lawsuit”
    as a whole. Accordingly, its argument continues, since BSW has conceded that Rose’s common
    law fraud claim is exempt, the entire counterclaim is based on common law fraud, and that all of
    its other causes of action are exempt. Recently, one of our sister courts rejected this argument,
    and we agree. See KB Home Lone Star Inc. v. Gordon, No. 04-20-00345-CV, 
    2021 WL 1760318
    , at *5 (Tex. App.—San Antonio May 5, 2021, no pet. h.) (op.) (rejecting similar
    10
    As we discuss later in this opinion, the same is not true when the burden shifts to the nonmovant to prove
    by clear and convincing evidence a prima facie case for each essential element of the claim in question. See Buzbee
    v. Clear Channel Outdoor, LLC, 
    616 S.W.3d 14
    , 29 (Tex. App.—Houston [14th Dist.] 2020, no pet.).
    13
    argument that because DTPA exemption applied to DTPA claim that it exempted all other claims
    due to broad definition of “legal action”).
    As part of this argument, Rose also appears to contend that the factual bases for all of its
    causes of action arise from the same scheme that gives rise to the fraud claim: Texas Spine and
    Joint’s plan to seize ownership of the facility from Rose and to extract its services without
    payment, and that BSW was a participant in that scheme. Accordingly, Rose argues, this
    common nucleus of facts exempts its entire counterclaim. But the Texas Supreme Court recently
    explained, “a cause of action consists not merely of the alleged facts, but also the elements those
    facts must establish to entitle the claimant to relief.” Montelongo, 622 S.W.3d at 301. We do
    not dismiss “a fact or facts” in the TCPA context. See id. While the TCPA “indisputably
    requires the claimant to submit evidence of facts, the facts themselves are meaningless and
    cannot prevent dismissal unless they sufficiently establish ‘each essential element of the claim.’”
    Id.
    Instead, as with our cause of action by cause of action analysis in evaluating claims for
    dismissal under the TCPA, we must determine whether each individual cause of action falls
    within an exemption. See KB Home Lone Star Inc., 
    2021 WL 1760318
    , at *5. This approach is
    consistent with the legislature’s recent additions to its itemized laundry list of exemptions. That
    is, the exemptions apply to: (1) a specified laundry list of different types of parties based on their
    status in the underlying suit, (2) different categories of causes of action based on the nature of the
    claim, or (3) some combination thereof. See generally TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.010. Given that any particular lawsuit may involve multiple parties redressing several
    independent injuries through a multitude of different causes of action, this laundry list exemption
    methodology demonstrates the legislature’s intent to examine each exemption on a cause of
    action by cause of action basis within the context of the entire lawsuit that otherwise falls within
    the TCPA. See id.; KB Home Lone Star Inc., 
    2021 WL 1760318
    , at *5.
    Fraud Exemption
    The TCPA does not apply to “a legal action based on a common law fraud claim.” TEX.
    CIV. PRAC. & REM. CODE ANN. § 27.010(a)(12). The 2019 legislative amendment enacted this
    exemption for the first time.
    BSW admits that Rose’s common law fraud claim is exempt from the TCPA. Although
    we have held that this concession does not automatically exempt Rose’s entire counterclaim,
    14
    other causes of action or claims for relief fall within this exemption. That is, the statutory fraud
    exemption does not exempt only common law fraud claims. It is not so limited. Instead, it states
    that the TCPA does not apply to a legal action based on a common law fraud claim. See id. We
    presume that the Legislature worded it in this manner for a purpose, and we apply the plain
    language of the words used in the statutory exemption. See Creative Oil, 591 S.W.3d at 133.
    There are other legal actions—i.e. causes of action or claims for relief—alleged by Rose that are
    based on, and require proof of, common law fraud. This means that, as pleaded by Rose, these
    causes of action require proof of common law fraud as part of their elements, are “based on a
    common law fraud claim,” and thus are exempt from the TCPA’s reach under the facts of this
    case. Specifically, we hold that Rose’s causes of action for unjust enrichment, civil conspiracy,
    and aiding and abetting a breach of fiduciary duty are based on common law fraud.
    Unjust Enrichment
    The Texas Supreme Court has suggested, although not definitively ruled, that unjust
    enrichment is a recognized independent cause of action. See, e.g., Ritchie v. Rupe, 
    443 S.W.3d 856
    , 882 (Tex. 2014) (“[V]arious common-law causes of action already exist to address
    misconduct by corporate directors and officers [such as] unjust enrichment . . . .”); Heldenfels
    Bros., Inc. v. City of Corpus Christi, 
    832 S.W.2d 39
    , 41 (Tex. 1992) (suggesting “recovery
    under the theory of unjust enrichment” available as a cause of action). Texas intermediate
    appellate courts are split regarding whether it is a separate cause of action. Compare Richardson
    Hosp. Auth. v. Duru, 
    387 S.W.3d 109
    , 114 (Tex. App.—Dallas 2012, no pet.) (holding unjust
    enrichment is not stand-alone cause of action, but is an implied contract, equitable measure of
    damages that addresses failure to make restitution for benefits wrongfully received) with Eun
    Bok Lee v. Ho Chang Lee, 
    411 S.W.3d 95
    , 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.)
    (holding unjust enrichment is independent cause of action). For TCPA purposes, however, an
    unjust enrichment claim or remedy is a “legal action” because it is a “cause of action” or “other
    judicial pleading or filing that requests . . . equitable relief.” See TEX. CIV. PRAC. & REM. CODE
    ANN. § 27.001(6).
    Unjust enrichment occurs when a person has wrongfully secured or passively received a
    benefit which it would be unconscionable to retain. Tex. Integrated Conveyor Sys., Inc. v.
    Innovative Conveyor Concepts, Inc., 
    300 S.W.3d 348
    , 367 (Tex. App.—Dallas 2009, pet.
    denied). As a remedy based on quasi-contract principles, unjust enrichment is unavailable when
    15
    a valid, express contract governing the subject matter of the dispute exists. Fortune Prod. Co. v.
    Conoco, Inc., 
    52 S.W.3d 671
    , 683–84 (Tex. 2000); Eun Bok Lee, 411 S.W.3d at 111–12.
    A party may recover under an unjust-enrichment theory if one party has obtained a
    benefit from another by fraud, duress, or the taking of unfair advantage. See HECI Expl. Co. v.
    Neel, 
    982 S.W.2d 881
    , 891 (Tex. 1998); Heldenfels Bros, 832 S.W.2d at 41; Denco CS Corp. v.
    Body Bar, LLC, 
    445 S.W.3d 863
    , 876–77 (Tex. App.—Texarkana 2014, no pet.).
    Rose alleges that Campbell and Baxter provided substantial value, service, and benefits
    by developing and marketing the facility. During the two years that followed BSW’s acquisition
    of the facility, it did not reject these benefits. Rather, Rose contends that BSW schemed to
    “leave it in the dark” about the nature of the interest that BSW had purchased, and about the
    facility’s ownership. The agreements themselves—and, at minimum, Campbell’s and Baxter’s
    continued work—gave BSW ample notice that Rose expected profit distributions and
    compensation. Instead, Rose alleges that it received no compensation, the facility’s profits were
    diverted through Texas Spine and Joint to BSW, and BSW must return these profits.
    The underlying basis for Rose’s argument is that BSW acquired benefits from Rose’s
    efforts by fraud. Therefore, as a claim or equitable remedy based on underlying proof of a
    common law fraud claim, this claim or remedy falls within the TCPA fraud exemption, and Rose
    need not make a prima facie case as to unjust enrichment. 11
    Civil Conspiracy
    To recover for civil conspiracy, a plaintiff must show “(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; and (5) damages occur as a proximate
    result.” First United Pentecostal Church of Beaumont v. Parker, 
    514 S.W.3d 214
    , 222 (Tex.
    2017). “[A] defendant’s liability for conspiracy depends on participation in some underlying tort
    for which the plaintiff seeks to hold at least one of the named defendants liable.” Tilton v.
    Marshall, 
    925 S.W.2d 672
    , 681 (Tex. 1996). In other words, it is a derivative tort. Agar Corp.,
    Inc. v. Electro Circuits Int’l, LLC, 
    580 S.W.3d 136
    , 142 (Tex. 2019).
    11
    To the extent this claim or remedy arises from Rose’s misappropriation of trade secrets, Texas Uniform
    Trade Secrets Act, and/or unfair competition claim, it would separately fall within the misappropriation of trade
    secrets TCPA exemption, as we discuss later in this opinion. See TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.010(a)(5)(A).
    16
    The underlying tort here is fraud. 12 Specifically, Rose alleges that BSW and Texas Spine
    were members of a group that agreed to work toward and did in fact purport to seize ownership
    of the facility from Rose and deny it the distributions and payments due under the agreements.
    As part of this scheme, Rose contends that BSW paid more than $40 million to fund the purchase
    of a controlling interest in Texas Spine and Joint, and thus, purportedly, the facility. Rose
    suffered injury to the extent that BSW and Texas Spine and Joint’s conspiracy deprived them of
    their interest in the facility, profit distributions, and compensation. Since the basis of this
    derivative tort of conspiracy is fraud, it is likewise based on a common law fraud claim, and the
    exemption applies to it.
    Aiding or Abetting Breach of Fiduciary Duty
    A third party who knowingly aids and assists in the breach of a fiduciary duty may also
    be liable. See Sw. Tex. Pathology Associates, L.L.P. v. Roosth, 
    27 S.W.3d 204
    , 208 (Tex.
    App.—San Antonio 2000, pet. dism’d w.o.j.) (citing Kinzbach Tool Co. v. Corbett–Wallace
    Corp., 
    138 Tex. 565
    , 
    160 S.W.2d 509
    , 514 (1942)).                     To establish a claim for knowing
    participation in a breach of fiduciary duty under Texas law, a plaintiff must assert: (1) the
    existence of a fiduciary relationship; (2) that the third party knew of the fiduciary relationship;
    and (3) that the third party was aware that it was participating in the breach of that fiduciary
    relationship. See Meadows v. Hartford Life Ins. Co., 
    492 F.3d 634
    , 639 (5th Cir. 2007);
    Straehla v. AL Glob. Services, LLC, 
    619 S.W.3d 795
    , 804 (Tex. App.—San Antonio 2020, pet.
    denied). This claim is also a derivative tort. Straehla, 619 S.W.3d at 804.
    Rose alleged that, as a member and manager of 62 Roses, Texas Spine owed the fiduciary
    duties of care, loyalty, candor, and independence to Rose. See, e.g., Ritchie, 443 S.W.3d at 868-
    69. Rose contends that (1) Texas Spine and Joint committed a tort when it intentionally withheld
    notice that a transaction involving ownership of the facility had occurred; (2) BSW knew of the
    relationship, knew that it was a tort, and both intended to and did assist Texas Spine and Joint in
    completing it by participating in the transaction through its fraudulent conduct; and (3) the
    transaction’s timing, BSW’s involvement, and the changes to Texas Spine’s logo and name
    would allow a factfinder to conclude that BSW knowingly participated in Texas Spine and
    12
    Separately, BSW’s actions supporting Rose’s civil conspiracy claim could also fall within the TCPA’s
    misappropriation of trade secrets exemption we discuss in the next section of this opinion. See TEX. CIV. PRAC. &
    REM. CODE ANN. § 27.010(a)(5)(A); see also W. Fork Advisors, LLC v. SunGard Consulting Services, LLC, 
    437 S.W.3d 917
    , 920–21 (Tex. App.—Dallas 2014, pet. denied) (noting that misappropriation of trade secrets and unfair
    competition are underlying torts that could possibly support claim for civil conspiracy).
    17
    Joint’s breaches of fiduciary duty. Similar to the civil conspiracy claim, this derivative tort is
    based on the alleged fraudulent scheme. Accordingly, we hold that it falls within the fraud
    exemption.
    Conclusion
    In summary, we hold that Rose’s legal actions for unjust enrichment, civil conspiracy,
    and aiding and abetting breach of fiduciary duties are “legal action[s] based on a common law
    fraud claim,” and accordingly are exempt from the TCPA. See TEX. CIV. PRAC. & REM. CODE
    ANN. § 27.010(a)(12). Importantly, BSW’s concession that Rose’s common law fraud claim is
    exempt supplies the underlying tortious conduct required to support these derivative torts, and
    consequently, their exemption from the TCPA. 13 See id. Accordingly, Rose need make no prima
    facie case as to these claims. See Round Table Physicians Group, 607 S.W.3d at 883; see also
    Atlas Survival Shelters, 
    2020 WL 6788714
    , at *6.
    Misappropriation of Trade Secrets TCPA Exemption
    The TCPA also does not apply to “a legal action arising from an officer-director,
    employee-employer, or independent contractor relationship that: [ ] seeks recovery for
    misappropriation of trade secrets or corporate opportunities . . . .” TEX. CIV. PRAC. & REM. CODE
    ANN. § 27.010(a)(5)(A). “Arising from” is not defined in the TCPA. The ordinary meaning of
    “arise” is “to originate; to stem from.” See Arise, BLACK’S LAW DICTIONARY (10th ed. 2009);
    see also Fazio v. Cypress/GR Houston I, L.P., 
    403 S.W.3d 390
    , 398 (Tex. App.—Houston [1st
    Dist.] 2013, pet. denied). Other Texas courts have applied a similar meaning in the TCPA
    context for other exemptions. See, e.g., Giri v. Estep, No. 03-17-00759-CV, 
    2018 WL 2074652
    ,
    at *4 (Tex. App.—Austin May 4, 2018, pet. denied) (mem. op.) (applying similar dictionary
    definition of “arises out of” to TCPA commercial speech exemption); Robert B. James, DDS,
    Inc. v. Elkins, 
    553 S.W.3d 596
    , 605-07 (Tex. App.—San Antonio 2018, pet. denied) (defining
    “arising out of” as to TCPA insurance contract exemption).
    Rose’s counterclaim includes causes of action for unfair competition/unfair competition
    by misappropriation, also called “common law misappropriation,” and violations of the Texas
    Uniform Trade Secrets Act (TUTSA) and Texas Theft Liability Act (TTLA). Rose contends that
    13
    In so holding, we do not intend to create a rule that these claims and remedies are per se based on a
    common law fraud claim in every case. However, under the pleadings and underlying facts as they have been
    developed at this juncture, these legal actions are based on a common law fraud claim.
    18
    these claims arose from ProjectRose’s independent contractor relationship with Texas Spine and
    Joint, and consequently, these claims are exempt from the TCPA.
    The Consultant Agreement, which was executed between Baylor Scott & White Texas
    Spine and Joint Hospital (Client) and ProjectRose MSO, LLC (Consultant) recites as follows:
    WHEREAS, Client has the need to obtain certain consulting services, particularly to provide
    consulting activities such as equipment procurement, funding sources, marketing activities,
    program structure for NFL athletics, etc., as well as assistance in sports science health and
    wellness sleep consultants marketing in the East Texas region. Consultant represents and
    warrants that it has expertise and proficiency in providing advice in this area, and the detail of
    the services to be rendered is set forth on Exhibit A (collectively referred to herein as
    “Services”);
    WHEREAS, it is the desire of Client to engage the Services of Consultant to perform for Client
    consulting services for assistance in sports science sleep consultants marketing in the East Texas
    region, as an independent contractor and not as an employee.
    ....
    6.01 Independent Contractor
    (a) It is expressly acknowledged by the Parties hereto that Consultant is an “independent
    contractor” and nothing in this Agreement is intended nor shall be construed to create an
    employer/employee relationship, a partnership, a joint venture relationship, lease or
    landlord/tenant relationship, or to allow the Client to exercise control or direction over the
    manner or method by which Consultant performs the Services which are the subject matter of
    this Agreement; provided, always, that the Services to be furnished hereunder by Consultant
    shall be provided in a manner consistent with the standards governing such Services and the
    provisions of this Agreement.
    The attached Exhibit A described similar activities as described in the recital concerning
    the types of services that Project Rose would provide. Rose contends that the services involve
    trade secrets. BSW does not provide any evidence refuting this assertion.
    BSW does not challenge the applicability of this exemption other than to argue that BSW
    did not contract with Rose, and without such a relationship, the exemption does not apply.
    Importantly, and contrary to BSW’s argument, this exemption applies to a legal action arising
    from an independent contractor relationship; it is not necessary that the party against whom the
    exemption applies be a party to the contract. So, even though Rose did not contract directly with
    BSW, Rose’s legal action for these causes of action against BSW arose from ProjectRose’s
    independent contractor relationship with Baylor Scott & White Texas Spine and Joint Hospital.
    As with the TCPA fraud exemption, we must determine what claims asserted by Rose
    “seek recovery for misappropriation of trade secrets or corporate opportunities.” Rose pleaded
    19
    causes of action for “unfair competition” for business conduct contrary to honest practice in
    industrial or commercial matters.      As part of this action, Rose pleaded the tort of unfair
    competition by misappropriation, along with a misappropriation of trade secret claim under
    TUTSA and the TTLA.
    The law of unfair competition is the umbrella for all statutory and nonstatutory causes of
    action arising out of business conduct which is contrary to honest practice in industrial or
    commercial matters. U.S. Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc., 
    865 S.W.2d 214
    , 217 (Tex. App.—Waco 1993, writ denied). The tort called “unfair competition”
    consisting of “conduct that is contrary to honest practice in industrial or commercial matters” is a
    derivative tort requiring “a viable underlying tort or other illegal conduct for liability to exist.”
    Greenville Automatic Gas Co. v. Automatic Propane Gas & Supply, LLC, 
    465 S.W.3d 778
    , 788
    (Tex. App.—Dallas 2015, no pet.).          Unfair competition includes a number of types of
    objectionable trade practices, including trademark infringement, dilution of good will,
    misappropriation of business value, palming off, passing off, and theft of trade secrets. U.S.
    Sporting Prods., 865 S.W.2d at 217.
    The elements of the tort of unfair competition by misappropriation, also called “common-
    law misappropriation,” are “(1) the creation of plaintiff’s product (i.e., the trade secret
    information) through extensive time, labor, skill, and money; (2) the defendant’s use of that
    product in competition with the plaintiff, thereby gaining a special advantage in that competition
    (i.e., a ‘free ride’) because defendant is burdened with little or none of the expense incurred by
    the plaintiff; and (3) commercial damage to the plaintiff.”        BP Automotive, L.P. v. RML
    Waxahachie Dodge, L.L.C., 
    448 S.W.3d 562
    , 572 (Tex. App.—Houston [1st Dist.] 2014, no
    pet.).   Unlawful competition by misappropriation is one of multiple torts in the unfair
    competition umbrella. See KBIDC Investments, LLC v. Zuru Toys Inc., No. 05-19-00159-CV,
    
    2020 WL 5988014
    , at *5, n.4 (Tex. App.—Dallas Oct. 9, 2020, pet. filed) (mem. op. on reh’g).
    Rose also sued BSW for statutory and common-law misappropriation of trade secrets,
    violations of the TTLA and TUTSA, and for unfair competition by misappropriation.
    Misappropriation, or unlawful appropriation, is an element of each of these causes of action. See
    TEX. CIV. PRAC. & REM. CODE ANN. § 134.002(2) (West 2019) (under TTLA, “‘[t]heft’ means
    unlawfully appropriating property . . . .”); id. § 134A.003, .004 (West 2019) (under TUTSA,
    party may receive injunctive relief and damages for misappropriation of trade secrets); BP
    20
    Automotive, 
    448 S.W.3d at 572
     (elements of unfair competition by misappropriation include the
    defendant used the plaintiff’s product in competition with the plaintiff); Twister B.V. v. Newton
    Research Partners, LP, 
    364 S.W.3d 428
    , 437 (Tex. App.—Dallas 2012, no pet.) (elements of
    common law misappropriation of trade secrets include “the trade secret was acquired through
    breach of a confidential relationship or was discovered by improper means” and “the defendant
    used the trade secret without authorization”). 14
    Rose alleges that Campbell’s and Baxter’s unique collegiate and professional experience
    resulted in extensive knowledge of sports injuries, return to play from injuries, sports medicine,
    and rehabilitation. They allege that these experiences led them to develop extensive trade secrets
    and intellectual property that they used to plan and develop the facility, including its marketing
    efforts. Campbell and Baxter, through Rose, used these trade secrets to develop and market the
    facility and the products it offers. Rose contends that BSW misappropriated these trade secrets
    and products and used them in competition with Rose after it gained an interest in the facility,
    thus damaging it. Specifically, Rose contends BSW profited from this misappropriation despite
    never paying anything for it.
    It is important to note that the parties are not actually litigating the merits of these causes
    of action at this juncture, and we express no opinion as to whether Rose will prevail on them.
    Rather, we are merely determining whether these individual causes of action fall within the
    exemption. Moreover, as we have stated, BSW has not challenged Rose’s assertion that these
    causes of action fall within the “misappropriation of trade secrets or corporate opportunities
    exemption” other than to contend that these causes of action do not arise from an independent
    contractor relationship because it did not contract with Rose.
    14
    TUTSA “displaces conflicting tort, restitutionary, and other law of this state providing civil remedies for
    misappropriation of a trade secret.” Title Source, Inc. v. HouseCanary, Inc., 
    612 S.W.3d 517
    , 532–33 (Tex.
    App.—San Antonio 2020, pet. filed) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 134A.007(a) (West 2019)). It
    does not affect “other civil remedies that are not based upon misappropriation of a trade secret.” Id. (citing TEX.
    CIV. PRAC. & REM. CODE ANN. § 134A.007(b)(2)). When the gravamen of a common law claim duplicates a
    TUTSA claim, the common law claim is preempted. Id. at 533. This occurs if the factual basis of the common law
    claim, as pleaded, would not exist without the use of alleged trade secrets. Id. However, because TUTSA’s
    preemption provision applies only to conflicting common law remedies, a common law claim is not preempted by
    TUTSA if it addresses harm separate from the trade secret misappropriation. Id. We need not resolve whether any
    of these claims are preempted here or address their continued viability. All of them, to the extent they are still viable
    causes of action, would fall within the exemption because they require misappropriation as they are pleaded by
    Rose. Their continued viability is to be litigated another day, not as part of a TCPA motion to dismiss, but some
    other appropriate method such as summary judgment or a trial on the merits.
    21
    Therefore, we hold that Rose’s unfair competition/common law misappropriation and
    TUTSA/TTLA claims for misappropriation of trade secret causes of action are within the
    exemption. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(a)(5). Consequently, as these
    causes of action are exempt from the TCPA, Rose is absolved from making a prima facie case as
    to the elements of those claims. See Round Table Physicians Group, 607 S.W.3d at 883; see
    also Atlas Survival Shelters, 
    2020 WL 6788714
    , at *6.
    PRIMA FACIE CASE
    Next, we examine whether Rose satisfied its burden to establish a prima facie case for the
    remaining causes of action that are not exempt from the TCPA, namely: tortious interference
    with existing contract, promissory estoppel/detrimental reliance, quantum meruit, money had and
    received, and declaratory judgment. But first, we must address arguments that BSW failed to
    properly brief its challenge to Rose’s claims, whether BSW preserved the trial court’s failure to
    rule on its evidentiary objections, and the nature and quality of the evidence Rose must present to
    satisfy its burden to establish a prima facie case by clear and convincing evidence on each
    element of these claims.
    BSW Preserved Challenge to Rose’s Prima Facie Case
    Rose first argues that BSW waived its challenge to the prima facie case on appeal by
    failing to properly brief the issue. We disagree. We are reluctant to find briefing error. Adams,
    
    547 S.W.3d 890
    , 896-97 (Tex. 2018) (cautioning against applying overly restrictive error
    preservation rules in TCPA context). BSW raised the issue in its brief by stating that Rose failed
    to meet its burden to establish by clear and convincing evidence a prima facie case on each
    element of its causes of action. BSW identified the elements for all causes of action raised by
    Rose and explained that it failed to meet its burden. 15 The burden is on Rose to establish its
    prima facie case. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); Andrews Cty. v. Sierra
    Club, 
    463 S.W.3d 867
    , 867 (Tex. 2015) (per curiam). Furthermore, we review the trial court’s
    implied finding that Rose sufficiently discharged this burden de novo. Adams, 547 S.W.3d at
    896-97. Accordingly, BSW preserved its challenge.
    15
    We note, however, that BSW failed to provide much in the way of analysis as to how Rose failed to
    satisfy its burden. But in any event, it preserved the issue for our review.
    22
    Governing Law – Prima Facie Case
    To defeat BSW’s TCPA motion to dismiss, the TCPA requires Rose to establish by clear
    and specific evidence a prima facie case for each essential element of its counterclaim. TEX.
    CIV. PRAC. & REM. CODE ANN. § 27.005(c). “Clear” means unambiguous, sure or free from
    doubt, and “specific” means explicit or relating to a particular named thing. In re Lipsky, 460
    S.W.3d at 590. A prima facie case is “the minimum quantum of evidence necessary to support a
    rational inference that the allegation of fact is true.” Id. It refers to evidence sufficient as a
    matter of law to establish a given fact if it is not rebutted or contradicted. Id. To meet the “clear
    and specific evidence” requirement, a plaintiff must provide enough detail to show the factual
    basis for its claim. Id. at 591. The TCPA does not require direct evidence of each essential
    element of the underlying claim to avoid dismissal.          Id.   However, conjecture, guess, or
    speculation cannot survive “clear and specific” scrutiny under the TCPA. See Van der Linden v.
    Khan, 
    535 S.W.3d 179
    , 195 (Tex. App.—Fort Worth 2017, pet. denied).
    BSW Preserved Trial Court’s Refusal to Rule on Its Evidentiary Objections
    The 2019 TCPA amendments provide that we shall consider the pleadings, evidence that
    we could consider under Texas Rule of Civil Procedure 166a (summary judgment rule), and
    supporting and opposing affidavits. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006 (West
    2020). In general, for purposes of issue preservation for appeal, a trial court’s ruling on an
    objection to summary judgment evidence is not implicit in its ruling on the motion for summary
    judgment. Seim v. Allstate Tex. Lloyds, 
    551 S.W.3d 161
    , 165-66 (Tex. 2018). Summary
    judgment evidence must be admissible. See TEX. R. CIV. P. 166a(f); United Blood Services v.
    Longoria, 
    938 S.W.2d 29
    , 30 (Tex. 1997).
    Here, BSW made its objections to Rose’s TCPA evidence. The trial court did not rule on
    BSW’s objections.      BSW timely objected to the trial court’s refusal to rule in writing.
    Accordingly, BSW preserved error in this regard. See TEX. R. APP. P. 33.1(a)(2)(B) (stating
    objection to refusal to rule sufficient to preserve issue for appeal); see also Lynne Liberato &
    Natasha Breaux, Objecting to Summary Judgment Evidence in State Court: Recent Clarifications
    and Remaining Complications, 56 Hous. Law. 10, 11–12 (Sept./Oct. 2018) (describing evolution
    of Texas law on error preservation when trial court does not rule on summary judgment
    evidentiary objections).
    23
    Furthermore, we are in the same position as the trial court in evaluating the objections at
    the TCPA phase of this proceeding. Although we were unable to locate specific authority on this
    subject, we agree with the reasoning from a prominent treatise discussing Texas summary
    judgments:
    A trial judge who makes a ruling on the admissibility of summary judgment proof, however, is in
    no different position than an appellate justice looking at the identical proof. The judge and the
    justice are both looking at the same affidavit or deposition from a paper trial and are equally
    situated in terms of applying the rules of evidence—which is the very reason the standard of
    appellate review for the merits of a summary judgment appeal is de novo. Consequently, there
    appears to be a sound argument for applying a de novo standard of review to evidentiary rulings in
    a summary judgment proceeding rather than the deferential standard used for trials.
    Timothy Patton, Summary Judgments in Texas: Practice, Procedure and Review § 6.10[5] (3d
    ed. 2020). Therefore, based on the above rationale, along with judicial economy concerns, we
    need not remand to the trial court with instructions to rule on the complained of TCPA evidence.
    Pleadings Alone Are Insufficient to Satisfy Nonmovant’s Evidentiary Burden
    Rose contends that we may rely on the pleadings alone as sufficient evidence to support
    the finding that it discharged its TCPA burden to establish by clear and convincing evidence a
    prima facie case of each element of its claims. See Rogers v. Soleil Chartered Bank, No. 02-19-
    00124-CV, 
    2019 WL 4686303
    , at *7 (Tex. App.—Fort Worth Sept. 26, 2019, no pet.) (mem.
    op.). 16 The Fourteenth Court of Appeals in Houston disagreed with the reasoning in Rogers and
    we agree. See Buzbee v. Clear Channel Outdoor, LLC, 
    616 S.W.3d 14
    , 29 (Tex. App.—
    Houston [14th Dist.] 2020, no pet.).
    Although there is only one section discussing the evidence we may review, there are
    different burdens on the parties during the multi-step TCPA procedural framework.                              For
    instance, the movant need only “demonstrate” that the TCPA applies, and the cases recite that
    the pleadings alone may satisfy this burden in reference to the movant’s initial burden in
    demonstrating the TCPA’s applicability.               See, e.g., TEX. CIV. PRAC. & REM. CODE ANN.
    § 27.005(b); Hersh, 526 S.W.3d at 467 (holding that, when determining TCPA applicability,
    16
    The Rogers court went on to caution, however, that a party who chooses to rely only on its pleading
    “gambles that the often-times conclusory and sketchy allegations of a notice pleading will not satisfy the clear and
    specific burden of establishing a prima facie case.” Rogers v. Soleil Chartered Bank, No. 02-19-00124-CV, 
    2019 WL 4686303
    , at *7 (Tex. App.—Fort Worth Sept. 26, 2019, no pet.) (mem. op.). The Rogers court ultimately
    concluded that the nonmovant’s “gamble did not pay off,” because the nonmovant’s pleading lacked the specificity
    necessary to establish a prima facie case for each of the nonmovant’s claims. 
    Id.
    24
    court may look solely to nonmovant’s pleading and, in doing so, accept the allegations as true
    insofar as they describe the nature of claims). Similarly, whether an exemption applies may be
    determined by examining the pleadings. See Gaskamp, 596 S.W.3d at 480; see also Hawkins,
    606 S.W.3d at 46.
    Once the TCPA is applicable, however, the nonmovant has a different burden. The
    nonmovant must satisfy the prima facie case requirement, and although we may consider the
    pleadings as part of this analysis, they are not sufficient by themselves to satisfy this standard.
    As the Buzbee court explained, “accepting all allegations as true for purposes of establishing a
    prima facie case—without concomitantly demanding evidence that is legally sufficient to
    establish the allegations as factually true if it is not countered . . . would nullify the very purpose
    of the TCPA’s burden-shifting mechanism.” Buzbee, 616 S.W.3d at 29. The Texas Supreme
    Court has suggested that this is the appropriate rule in this phase of the process.                See
    Montelongo, 622 S.W.3d at 301 (noting that nonmovant must “submit evidence of facts” that
    establish each essential element of the claim); Hersh, 526 S.W.3d at 467-68 (although noting
    that the nonmovants’ petition is best evidence for determining TCPA applicability in first step of
    analysis, nonmovants failed to satisfy their burden to “produce” sufficient evidence of essential
    element of claim in second step of TCPA analysis).
    Accordingly, once the court is satisfied that the TCPA applies and the burden shifts to the
    nonmovant, the TCPA requires something beyond allegations in the pleading “to support a
    rational inference that an allegation is true.” Buzbee, 616 S.W.3d at 29. “Allegations alone are
    not sufficient.” See id.
    In reviewing whether Rose discharged its burden, the current statute states that we
    consider the pleadings, evidence properly considered under Texas Rule of Civil Procedure 166a,
    and supporting and opposing affidavits. Primarily, BSW challenges the admissibility of Baxter’s
    declaration.
    In general, “an unsworn declaration may be used in lieu of a written sworn declaration,
    verification, certification, oath, or affidavit required by statute . . . .” TEX. CIV. PRAC. & REM.
    CODE ANN. § 132.001(a) (West 2019). Such a declaration must be in writing and must be
    subscribed as true under penalty of perjury. Id. § 132.001(c). The statute requires a jurat to
    appear in “substantially” the same form as the template jurat before an unsworn declaration
    becomes operative. Id. § 132.001(d).
    25
    “Although the declaration jurat fails to contain [the declarant’s] address and date of birth,
    such an omission is not fatal . . . .” United Rentals, Inc. v. Smith, 
    445 S.W.3d 808
    , 812–13
    (Tex. App.—El Paso 2014, no pet.). Rather, the “key to an unsworn declaration” is that it must
    be signed under penalty of perjury. See Gillis v. Harris County, 
    554 S.W.3d 188
    , 193 (Tex.
    App.—Houston [14th Dist.] 2018, no pet.).
    Finally, given the early stage of this litigation, although we have held that Rose must
    present some evidence to satisfy its burden here, it need not necessarily present the best evidence
    to satisfy this burden. See MediaOne, L.L.C. v. Henderson, 
    592 S.W.3d 933
    , 943 (Tex. App.—
    Tyler 2019, pet. denied) (citing Tu Nguyen v. Duy Tu Hoang, 
    318 F. Supp. 3d 983
    , 998 (S.D.
    Tex. 2018) (“Clearly, under the expedited TCPA proceedings, [the nonmovant] would be
    prejudiced if he were required to obtain the best evidence since he has not had the opportunity to
    conduct discovery . . . .”)). Baxter’s declaration states that it is made under penalty of perjury,
    and we hold that its shortcomings are not fatal and that it is admissible for TCPA purposes.
    Tortious Interference with Existing Contract
    To establish a claim for tortious interference with a contract, a plaintiff must establish:
    (1) the existence of a valid contract subject to interference; (2) that the defendant willfully and
    intentionally interfered with the contract; (3) that the interference proximately caused the
    plaintiff’s injury; and (4) that the plaintiff incurred actual damage or loss. Cmty. Health Sys.
    Prof’l Services Corp. v. Hansen, 
    525 S.W.3d 671
    , 689 (Tex. 2017).
    To prove the willful and intentional interference element of a tortious interference claim,
    the plaintiff must show that the defendant was legally capable of tortious interference. 
    Id.
     To be
    legally capable of tortious interference, the defendant must be a stranger to the contract with
    which he allegedly interfered. 
    Id.
     BSW admits that it never contracted with Rose.
    Intentional interference does not require intent to injure, only that “the actor desires to
    cause the consequences of his act, or that he believes that the consequences are substantially
    certain to result from it.” 
    Id.
     According to Baxter’s declaration and its attached exhibits, Rose
    provided evidence BSW was aware of Rose’s existing agreements with Texas Spine and Joint.
    As we discuss in the section of this opinion on BSW’s misidentification defense, Rose attached
    admissible evidence of the purchase raising a fact issue as to BSW’s role in the purchase by way
    of a Securities and Exchange Commission (SEC) 10-K report detailing the purchase. BSW
    challenges the admissibility of this document. However, it is admissible as a self-authenticating
    26
    business record of a government agency. See TEX. R. EVID. 803(6), 901(b)(4), 902.5; Savoy v.
    Nat’l Collegiate Student Loan Tr. 2005-3, 
    557 S.W.3d 825
    , 832 (Tex. App.—Houston [1st
    Dist.] 2018, no pet.) (holding that documents retrieved from the “SEC’s online database” were
    admissible as self-authenticating business records).
    Rose contends that this funding and acquisition of Texas Spine and Joint, and
    consequently the facility, was a willful and intentional interference with Rose’s contracts with
    Texas Spine and Joint, because it subsequently repudiated the agreements without compensating
    Rose for Baxter’s and Campbell’s efforts. Specifically, Baxter claimed in his declaration that
    BSW was aware of the agreements during the next two years that Texas Spine feigned operation
    of the facility under the agreements’ terms. BSW’s interference caused Rose to lose its interest
    in the facility and to suffer lost distributions and payments that were due under the agreements’
    terms. Accordingly, we hold that Rose satisfied its TCPA burden with respect to its tortious
    interference claim.
    Promissory Estoppel/Detrimental Reliance
    The elements of a claim of promissory estoppel or detrimental reliance are: (1) the
    defendant made a promise to plaintiff, (2) the plaintiff reasonably and substantially relied on the
    promise to its detriment, and (3) plaintiff’s reliance was foreseeable to defendant. See Henry
    Schein, Inc. v. Stromboe, 
    102 S.W.3d 675
    , 686 n.25 (Tex. 2002). Promissory estoppel is not
    applicable to a promise covered by a valid contract between the parties, but can apply to a
    promise outside a contract. Trevino & Associates Mech., L.P. v. Frost Nat. Bank, 
    400 S.W.3d 139
    , 146 (Tex. App.—Dallas 2013, no pet.).
    Rose provided no evidence that BSW made any promise to it, an essential element of a
    detrimental reliance/promissory estoppel claim. See Maddox v. Vantage Energy, LLC, 
    361 S.W.3d 752
    , 761–62 (Tex. App.—Fort Worth 2012, pet. denied) (citing Wheeler v. White, 
    398 S.W.2d 93
    , 97 (Tex. 1965)). Consequently, it failed to make a prima facie case as to each
    essential element of this cause of action, and it must be dismissed.
    Quantum Meruit
    Quantum meruit is an equitable theory of recovery which is based on an implied
    agreement to pay for benefits received. Heldenfels Bros., Inc. v. City of Corpus Christi, 
    832 S.W.2d 39
    , 41 (Tex. 1992). The elements of quantum meruit are: (1) valuable services were
    rendered or materials furnished; (2) for the person sought to be charged; (3) those services and
    27
    materials were accepted by the person sought to be charged, and were used and enjoyed by him;
    and (4) the person sought to be charged was reasonably notified that the plaintiff performing
    such services or furnishing such materials was expecting to be paid by the person sought to be
    charged. Hill v. Shamoun & Norman, LLP, 
    544 S.W.3d 724
    , 732–33 (Tex. 2018). Generally,
    the existence of an express contract covering the subject matter of the dispute precludes recovery
    in quantum meruit. See In re Kellogg Brown & Root, Inc., 
    166 S.W.3d 732
    , 740 (Tex. 2005);
    see also Hill, 544 S.W.3d at 733.
    Furthermore, to recover in quantum meruit, Rose must show that its efforts were
    undertaken for the party sought to be charged; it is not enough to merely show that its efforts
    benefitted the defendant. Bashara v. Baptist Mem’l Hosp. Sys., 
    685 S.W.2d 307
    , 310 (Tex.
    1985); McFarland v. Sanders, 
    932 S.W.2d 640
    , 643 (Tex. App.—Tyler 1996, no writ).
    The services were provided specifically to Texas Spine and Joint, and there is no
    evidence that Rose intended to provide the services directly to BSW. Rather, the allegations and
    evidence suggest that BSW may have been an incidental beneficiary based on the alleged actions
    we have discussed at length in this opinion, which is insufficient to satisfy Rose’s burden.
    Although this cause of action is related to the unjust enrichment and money had and received
    causes of action, Rose failed to make a prima facie case for this cause of action due to its
    additional element that the services be provided to BSW. See Bashara, 685 S.W.2d at 310;
    McFarland, 932 S.W.2d at 643. Therefore, this claim must be dismissed.
    Money Had and Received
    Rose pleaded a claim for money had and received. A cause of action for money had and
    received is equitable in nature. Stonebridge Life Ins. Co. v. Pitts, 
    236 S.W.3d 201
    , 203 n.1
    (Tex. 2007); Acoustical Screens in Color, Inc. v. T. C. Lordon Co., Inc., 
    524 S.W.2d 346
    , 350
    (Tex. Civ. App.—Dallas 1975, writ ref’d n.r.e.). The claim “belongs conceptually to the doctrine
    of unjust enrichment.” Amoco Prod. Co. v. Smith, 
    946 S.W.2d 162
    , 164 (Tex. App.—El Paso
    1997, no writ).
    The courts describe this claim in general principles. For example, courts have stated that
    a claim for money had and received seeks to restore money where equity and good conscience
    require restitution. Edwards v. Mid-Continent Office Distributors, L.P., 
    252 S.W.3d 833
    , 837
    (Tex. App.—Dallas 2008, pet. denied). It is not premised on wrongdoing, but seeks to determine
    to which party, in equity, justice, and law, the money belongs, and it seeks to prevent
    28
    unconscionable loss to the plaintiff and unjust enrichment to the defendant. Bryan v. Citizens
    Nat’l Bank in Abilene, 
    628 S.W.2d 761
    , 763 (Tex. 1982); Staats v. Miller, 
    150 Tex. 581
    , 584,
    
    243 S.W.2d 686
    , 687 (1951). As these broad and general descriptions demonstrate, a cause of
    action for money had and received is “less restricted and fettered by technical rules and
    formalities than any other form of action. It aims at the abstract justice of the case, and looks
    solely to the inquiry, whether the defendant holds money, which . . . belongs to the plaintiff.”
    Staats, 
    150 Tex. at 584
    , 
    243 S.W.2d at
    687–88 (internal quotations and citations omitted).
    To prove the claim, a plaintiff must show that a defendant holds money which in equity
    and good conscience belongs to him. See Best Buy Co. v. Barrera, 
    248 S.W.3d 160
    , 162–63
    (Tex. 2007) (per curiam) (citing Staats, 
    150 Tex. at 584
    , 
    243 S.W.2d at 687
    ). Texas courts have
    allowed restitution for these types of claims in a variety of cases, including by a defrauded party
    against the party who committed the fraud. See Edwards, 
    252 S.W.3d at
    837 (citing Staats, 
    150 Tex. at
    583–85, 
    243 S.W.2d at
    686–88; Wiseman v. Baylor, 
    69 Tex. 63
    , 64–66, 
    6 S.W. 743
    ,
    743–44 (Tex. 1887)).
    Unlike promissory estoppel/detrimental reliance and quantum meruit, money had and
    received does not depend on either representations made by the defendant or that the services
    specifically be provided to the defendant.                Rather, it is the broadest equitable remedy to
    compensate the claimant for money that in good conscience belongs to it, without regard to
    wrongdoing of any party. Although other causes of action are more specifically designed to
    compensate Rose and redress its injuries based on the actions of BSW here, we cannot say that
    the cause of action does not apply or that Rose failed to make a prima facie case by clear and
    specific evidence of its essential elements. 17
    Rose presented evidence from Baxter’s declaration that it provided substantial value in
    relation to the facility, including hours of marketing efforts, trade secrets, and intellectual
    property. For example, the news articles we describe above track the progress of the facility and
    the efforts and value that Baxter and Campbell provided. Rose also attached photos of the
    various stages of completion, including what appears to be a finished product. Through these
    efforts, Rose maintains, BSW, TSJH, and the third-party defendants all received the benefit of—
    17
    With this flexible equitable remedy that may sometimes compensate a plaintiff for fraudulent acts as
    Rose has pleaded, it is unclear whether this could fall within the “legal action based on common law fraud”
    exemption. This is due in part to the amorphous nature and flexibility of this cause of action. Even if it does not fall
    into the exemption, Rose has satisfied its burden to show a prima facie case here as we have explained.
    29
    and continue to generate revenue from—a state-of-the-art sports medicine facility. However,
    Rose has not received any payment for these services and trade secrets. Rose also attached its
    invoices for the consulting work it provided that remain unpaid. In short, Rose contends that
    BSW continues to reap the benefits and revenue of a world-class facility that was built on the
    efforts, intellectual property, and network of Baxter and Campbell without providing any
    compensation, which if true, would lead to unjust enrichment. Therefore, we hold that Rose
    satisfied its TCPA burden on this cause of action.
    Declaratory Judgment
    The Uniform Declaratory Judgments Act (UDJA) is a procedural device available as a
    remedy. Chenault v. Phillips, 
    914 S.W.2d 140
    , 141 (Tex. 1996) (per curiam) (orig. proceeding).
    The UDJA’s purpose is to settle and to afford relief from uncertainty and insecurity with respect
    to rights, status, and other legal relations. TEX. CIV. PRAC. & REM. CODE ANN. § 37.002(b). A
    person interested under a written contract or other writing constituting a contract or whose rights
    are affected by a contract may have determined any question of construction or validity arising
    under the instrument or contract, and obtain a declaration of rights, status, or other legal relations
    thereunder. Id. § 37.004(a). Thus, a declaratory judgment is appropriate when a justiciable
    controversy exists concerning the rights and status of the parties and the controversy will be
    resolved by the declaration sought. Bonham State Bank v. Beadle, 
    907 S.W.2d 465
    , 467 (Tex.
    1995). A justiciable controversy is one in which a real and substantial controversy exists
    involving a genuine conflict of tangible interest and not merely a theoretical dispute. 
    Id.
    In the instant case, the Company Agreement between Touchdown Interception and Texas
    Spine and Joint contained a provision requiring written consent of the other members prior to a
    sale of its interest. Specifically, Section 10.01 of the Company Agreement, entitled “Prohibition
    Against Transfers,” states that “[e]xcept as otherwise provided in this Agreement, a Member
    shall not sell, assign, transfer, encumber, or otherwise dispose of any portion of its Membership
    Interests except with the prior written consent of a Majority in Interest.” Section 10.05 of the
    Agreement states that “[a]ny attempted transfer not in full compliance with the terms of this
    Agreement shall, except for the limited rights provided to an Assignee hereunder, be null and
    void.”
    Rose contends that Texas Spine and Joint breached this provision when it sold its interest
    to BSW and repudiated the contract. Rose contends that BSW’s purchase-funding interfered
    30
    with the Company Agreement between Touchdown and Texas Spine and Joint. Rose seeks a
    declaration of its rights after the sale, and a real and substantial justiciable controversy exists
    here that can be resolved by a declaration because Touchdown did not agree to any transfer, and
    it now seeks to have the transfer made null and void. Rose sufficiently made its prima facie case
    on its UDJA claim. See Berry v. ETX Successor Tyler, No. 12-18-00095-CV, 
    2019 WL 968528
    ,
    at *5 (Tex. App.—Tyler Feb. 28, 2019, no pet.) (mem. op.) (evaluating declaratory judgment
    action in TCPA context).
    Damages
    In the TCPA analysis, the nonmovant need not provide proof by way of direct evidence
    of damages, but the evidence must be sufficient to allow a rational inference that some damages
    naturally flowed from the defendant’s conduct. See S & S Emergency Training Sols., Inc. v.
    Elliott, 
    564 S.W.3d 843
    , 847 (Tex. 2018).
    Rose contends that the facility was opened and that Texas Spine and Joint and the third-
    party defendants operate the facility without ever compensating them for their time, toil, talent,
    and labor, as well as their expertise and trade secrets they contributed. Rose submitted invoices
    for all its work which it alleges remain unpaid. Viewing the evidence in the light most favorable
    to Rose, it has shown the required prima facie case supporting the inference that it suffered some
    damages that naturally flowed from Texas Spine and Joint’s and the third-party defendants’
    wrongful conduct, including BSW’s actions.
    Conclusion
    We hold that Rose satisfied its burden with respect to its tortious interference with
    existing contract, money had and received, and declaratory judgment claims. Rose failed to
    satisfy its burden with respect to its promissory estoppel/detrimental reliance and quantum
    meruit claims, and those claims must be dismissed.
    Therefore, the portion of BSW’s first issue arguing that it preserved its challenge to
    Rose’s prima facie case, the scope of the evidence we may consider in this evaluation, as well as
    its challenge to Rose’s promissory estoppel/detrimental reliance and quantum meruit claims is
    sustained. The portion of its first issue challenging Rose’s prima facie case on its remaining
    claims is overruled.
    31
    BSW’S DEFENSE
    BSW contends that it established its defense that Rose sued the wrong party when it
    impleaded BSW as a third-party defendant. In its brief, BSW spends significant argument
    concerning Rose’s alleged failure to show that BSW was a proper party. However, it is BSW’s
    burden to conclusively establish its defense in the TCPA phase of the litigation in order to obtain
    dismissal of Rose’s counterclaim against it. BSW failed to discharge this burden. See TEX. CIV.
    PRAC. & REM. CODE ANN. § 27.005(d) (requiring movant to establish an affirmative defense or
    other ground on which it is entitled to “judgment as a matter of law).
    BSW points to the declaration of Jennifer Colon, the Vice President of Finance for Joint
    Ventures of Baylor Health Enterprises. In her declaration, she states that “Baylor Scott &
    White” is not a legal name of a corporation on file with the Texas Secretary of State but is
    instead an assumed name of Baylor Scott & White Health. Colon stated that this company
    provided legal, human resources, and other support services to affiliated entities so that they can
    operate a not-for-profit health system in Texas, providing healthcare at many locations. She
    further stated that Baylor Scott & White Health did not acquire any interest in Texas Spine and
    Joint Hospital LLC, as alleged in the Third-Party Petition. As support, Colon attached a filing
    from the Texas Secretary of State showing that Baylor Scott & White is an assumed name.
    However, Colon provided no evidence that BSW took no part in the acquisition of the facility
    other than her statement to that effect in her declaration. While this might be sufficient evidence
    to support such a finding, it is far from conclusive.
    Furthermore, Rose attached a public SEC 10-K filing, retrieved from its online database,
    which at least raises a fact issue on BSW’s misidentification defense. 18 This means that BSW
    failed to show it is entitled to judgment as a matter of law. For example, the 10-K report
    describing the acquisition of the facility states as follows:
    Texas Health Ventures Group, L.L.C. and subsidiaries (THVG or the Company), a Texas limited
    liability company, was formed on January 21, 1997, for the primary purpose of developing,
    acquiring, and operating ambulatory surgery centers and related entities. THVG is a joint venture
    between Baylor University Medical Center (BUMC), an affiliate of Baylor Scott & White
    Holdings (BSW Holdings), who owns 50.1% of THVG and USP North Texas, Inc. (USP), a
    Texas corporation and consolidated subsidiary of United Surgical Partners International, Inc.
    18
    As we held earlier in this opinion, the report is admissible as a self-authenticating business record of a
    government agency. See TEX. R. EVID. 803(6), 901(b)(4), 902.5; Savoy v. Nat’l Collegiate Student Loan Tr. 2005-
    3, 
    557 S.W.3d 825
    , 832 (Tex. App.—Houston [1st Dist.] 2018, no pet.).
    32
    (USPI), who owns 49.9% of THVG. USPI is a subsidiary of Tenet Healthcare Corporation. BSW
    Holdings and its “controlled” affiliates are referred collectively herein as “BSWH”. THVG’s
    fiscal year ends June 30. Fiscal years of THVG’s subsidiaries end December 31; however, the
    financial information of these subsidiaries included in these consolidated financial statements is as
    of June 30, 2018 and 2017, and for the years ended, June 30, 2018, 2017 and 2016.
    ....
    On August 2, 2017, Texas Health Venture Texas Spine, LLC, a wholly-owned subsidiary of
    THVG, completed its acquisition of Texas Spine and Joint Hospital, LLC (Tyler), resulting in a
    50.25% controlling interest. The consideration of $40,900,000 and $40,700,000 was paid to the
    sellers by BSWH and USP, respectively. From the date of contribution to June 30, 2018, THVG
    recognized approximately $98,600,000 of total revenues and approximately $5,800,000 of net
    income from Tyler.
    ....
    8. RELATED-PARTY TRANSACTIONS
    THVG operates the Facilities under management and royalty contracts, and THVG in turn
    is managed by BSWH and USP, resulting in THVG incurring management and royalty fee
    expense payable to BSWH and USP in amounts equal to the management and royalty fee
    income THVG receives from the Facilities. THVG’s management and royalty fee income from
    the facilities it consolidates for financial reporting purposes eliminates in consolidation with the
    facilities’ expense and therefore is not included in THVG’s consolidated revenues. THVG’s
    management and royalty fee income from facilities which are not consolidated was $600,000 for
    years ended June 30, 2018, 2017, and 2016, and is included in other income in the accompanying
    consolidated statements of income.
    The management and royalty fee expense to BSWH and USP was approximately $41,973,000,
    $38,530,000, and $35,432,000 for the years ended June 30, 2018, 2017, and 2016, respectively,
    and is reflected in operating expenses in THVG’s consolidated statements of income. Of the total,
    64.3% and 1.7% represent management fees payable to USP and BSWH, respectively, and 34%
    represents royalty fees payable to BSWH.
    The 10-K report establishes that one of the parties that acquired Texas Spine and Joint
    Hospital is Baylor University Medical Center, which is an affiliate of Baylor Scott & White
    Holdings. The 10-K report also states that BSW Holdings and its “controlled” affiliates are
    referred throughout the report as BSWH. BSW admits it is an assumed name for Baylor Scott &
    White Health in its brief and through Colon’s declaration, and it failed to negate that it is an
    affiliate controlled by BSWH, as that term is used in the 10-K report. Finally, the report notes
    BSWH paid consideration of $40,900,000 to Texas Spine and Joint Hospital, LLC to acquire it.
    This evidence creates a fact issue on BSW’s defense. 19
    19
    Bolstering Rose’s argument is the fact that it served a request for disclosure, one of which requests
    disclosure of “the correct names of the parties to the lawsuit.” See TEX. R. CIV. P. 194.2(a). BSW failed to respond
    to this request, as it is required to do. It is not unreasonable to surmise that BSW failed to respond to the request for
    disclosure because Rose might have sued the correct party, but it is simply a matter of misnomer rather than
    misidentification.
    33
    Therefore, the remaining portion of BSW’s first issue pertaining to its defense of
    misidentification is overruled, as is its second issue challenging the trial court’s failure to sustain
    its evidentiary objections.
    DISPOSITION
    We have held that the TCPA applies to Rose’s counterclaim, and that Rose failed to
    satisfy its burden to make a prima facie case as to its promissory estoppel/detrimental reliance
    and quantum meruit causes of action as part of its counterclaim against BSW. Accordingly,
    BSW is entitled to at least some amount and measure of attorney’s fees under the TCPA. 20
    However, Rose was largely successful in demonstrating that its causes of action were
    either exempt from the TCPA or satisfying its burden of making a prima facie case on most of its
    causes of action. BSW also failed to establish its defense that Rose sued the wrong party when it
    impleaded BSW into this lawsuit.
    Accordingly, we reverse the trial court’s order denying BSW’s TCPA motion in part and
    render an order dismissing the following legal actions against BSW: (1) promissory
    estoppel/detrimental reliance, and (2) quantum meruit. We affirm the remainder of the trial
    court’s order denying the TCPA motion.                   We remand this case to the trial court for a
    determination of attorneys’ fees and costs as to these legal actions, and for further proceedings
    consistent with this opinion.
    JAMES T. WORTHEN
    Chief Justice
    Opinion delivered August 30, 2021.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    (PUBLISH)
    20
    See TEX. CIV. PRAC. & REM. CODE ANN. § 27.009 (West 2020).
    34
    COURT OF APPEALS
    TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
    JUDGMENT
    AUGUST 30, 2021
    NO. 12-20-00246-CV
    BAYLOR SCOTT & WHITE,
    Appellant
    V.
    PROJECT ROSE MSO, LLC, TOUCHDOWN INTERCEPTION, LLC, INDIVIDUALLY
    AND DERIVATIVELY ON BEHALF OF 62 ROSES, LLC,
    Appellees
    Appeal from the 7th District Court
    of Smith County, Texas (Tr.Ct.No. 20-0438-A)
    THIS CAUSE came to be heard on the oral arguments, appellate record and
    briefs filed herein, and the same being considered, it is the opinion of this Court that there was
    error in the order as entered by the court below and that same should be reversed and judgment
    rendered in part, and affirmed in part.
    It is therefore ORDERED, ADJUDGED and DECREED by this Court that
    the trial court’s order denying Appellant Baylor Scott and White’s TCPA motion in part be, and
    the same is, hereby reversed and an order rendered dismissing the following legal actions
    against Baylor Scott and White: (1) promissory estoppel/detrimental reliance, and (2) quantum
    meruit. It is further ORDERED, ADJUDGED and DECREED that the remainder of the trial
    35
    court’s order denying the TCPA motion be affirmed and this cause be remanded to the trial
    court for a determination of attorneys’ fees and costs as to these legal actions, and for further
    proceedings consistent with this opinion; and that this decision be certified to the court below for
    observance.
    James T. Worthen, Chief Justice.
    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
    36