IN THE

TENTH COURT OF APPEALS

No. 10-18-00089-CV

JEAN HERZOG,

Appellant

v.

WACO PRIMARY CARE, P.A.,

Appellee

From the 170th District Court

McLennan County, Texas

Trial Court No. 2017-3626-4

MEMORANDUM OPINION

Chapter 27 of the Civil Practice and Remedies Code, also known as the Texas 

Citizens Participation Act (TCPA), is an anti-SLAPP statute, meaning that it was enacted 

to curb “Strategic Lawsuits Against Public Participation.” In re Lipsky, 411 S.W.3d 530, 

536 n.1 (Tex. App.—Fort Worth 2013, orig. proceeding), mand. denied, 460 S.W.3d 579 (Tex. 

2015); see TEX. CIV. PRAC. & REM. CODE ANN. § 27.002.

“The [TCPA] protects citizens who [associate,] petition or speak on matters 

of public concern from retaliatory lawsuits that seek to intimidate or silence 

them.” In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). That protection comes 
Herzog v. Waco Primary Care, P.A. Page 2

in the form of a special motion to dismiss, subject to expedited review, for 

“any suit that appears to stifle the defendant’s” exercise of those rights. Id. 

Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). 

In this accelerated appeal, Jean Herzog (Herzog) challenges the trial court’s 

interlocutory order denying her motion to dismiss under the TCPA. See TEX. CIV. PRAC.

& REM. CODE ANN. § 51.014(a)(12). We will affirm. 

Factual and Procedural Background

Waco Primary Care, P.A. (WPC) sued Herzog, alleging as follows in its petition: 

Dr. Karl M. Trippe (Trippe) established WPC in 2011 to provide family medical services 

to the McLennan County community. Herzog joined WPC as a nurse practitioner in 

August 2015, and during her employment with WPC, Herzog had access to and used 

WPC’s patient lists through the Athena Clinical Electronic Medical Records software. In 

October 2016, Herzog tendered her resignation letter to Trippe. Herzog indicated that 

she would be leaving the employ of WPC in four weeks’ time, and she departed WPC in 

November 2016. Trippe subsequently discovered that Herzog had misappropriated 

WPC’s trade secrets, confidential information, and patient lists during her employment 

with WPC, and Herzog had used the patient lists to “contact and procure” WPC’s

patients for her new place of employment. WPC brought causes of action against Herzog 

for misappropriation of trade secrets, tortious interference with continuing and 

prospective business relations, and conversion. 

Herzog answered WPC’s petition by generally denying all of WPC’s allegations. 

Herzog also filed a counterclaim against WPC for misappropriation of her name. 
Herzog v. Waco Primary Care, P.A. Page 3

Furthermore, Herzog filed a motion to dismiss WPC’s claims under the version of the 

TCPA in effect at that time.1 Herzog provided the following basis for her TCPA motion 

to dismiss:

[P]ursuant to [Civil Practice and Remedies Code section] 27.003, this legal 

action is “based on, relates to, or is in response to a party’s exercise of the 

right of free speech . . . or right of association. . . .” As such, this case should 

be dismissed. Both Nurse Practitioner Jean Herzog and the patients have 

these rights. In fact, the fiduciary relationship owed the patient(s) would 

seem to call for disclosure of the very information related to them by Nurse 

Practitioner Jean Herzog.

In support of her TCPA motion to dismiss, Herzog attached her own affidavit, in 

which she stated as follows: Herzog has been in practice as a nurse practitioner in 

McLennan County for over twenty years. She began her practice at the Family Practice 

Clinic, where she worked for several years. She then moved her practice to work with 

two specific doctors. She then moved her practice once more to work with Dr. Pat Pryor 

(Pryor) at the White Rock Clinic, where she remained for about fourteen years. Many of 

Herzog’s patients followed her from the Family Practice Clinic to the White Rock Clinic, 

and most of Herzog’s patients at the White Rock Clinic saw only her and not Pryor. 

Herzog therefore essentially had her own patients and was not typically allocated Pryor’s 

patients. 

Herzog stated in her affidavit that in 2011 Trippe began an office-sharing 

arrangement with Pryor. From 2011 to 2015, Herzog generally continued to see only her 

1 The TCPA was substantially amended in 2019, but the 2019 amendments apply only to actions filed on or 

after September 1, 2019. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 11–12. The underlying case 

was filed in October 2017; thus, the 2019 amendments to the TCPA do not apply to this case, and our 

discussion of the TCPA in this opinion is of the version of the TCPA in effect before September 1, 2019. See 

id.
Herzog v. Waco Primary Care, P.A. Page 4

own patients and did not see Trippe’s or other WPC providers’ patients, except in callcoverage or emergency situations. Pryor then retired in 2015. At that time, WPC and/or 

Trippe purchased the White Rock Clinic building. Herzog does not believe that WPC or 

Trippe purchased Pryor’s medical practice, records, or patient files. Nor does Herzog 

believe that WPC or Trippe purchased her records or patient files. Nevertheless, in 

August 2015, rather than change office locations, Herzog became employed by WPC and 

continued to see her own patients in the same location where she had seen them while 

she was with the White Rock Clinic. While employed by WPC, Herzog was not referred 

Trippe’s or any other WPC providers’ patients, except in very unusual situations. 

Similarly, Trippe did not see Herzog’s patients, except on an infrequent basis.

Herzog stated in her affidavit that on November 2, 2016, she provided Trippe 

notice that she would be leaving the employ of WPC in thirty days’ time. After providing

her notice of resignation, Herzog then began telling her patients who came into the office 

to see her that she was leaving WPC, that she would be joining Providence Family 

Practice and working with a specific doctor, and that her patients could continue patient 

care through her at the new location if they wished. Additionally, for those of her patients

whom she did not see during the thirty-day period before she left the employ of WPC, 

Herzog used their patient records to retrieve their home addresses so that she could send 

a letter to them that she was leaving WPC, that she would be working for the Providence 

Family Practice Clinic with a specific doctor, and that her patients could make 

appointments with her there if they chose to do so. Herzog did not tell any patients other 

than her own patients about her leaving WPC and joining the new practice. Furthermore, 
Herzog v. Waco Primary Care, P.A. Page 5

Herzog took no patient lists or files from the offices of Trippe or WPC. Herzog’s 

employment with WPC ended on November 29, 2016.

WPC thereafter filed a response to Herzog’s TCPA motion to dismiss. In its 

response, WPC first made objections to Herzog’s affidavit. WPC then argued, in part,

that the commercial-speech exemption applies to this case. WPC then requested that it 

be awarded attorney’s fees under section 27.009(b) of the Civil Practice and Remedies 

Code because Herzog’s TCPA motion to dismiss was “patently frivolous and merely 

utilized as a tool to delay the proceedings.” See TEX. CIV. PRAC. & REM. CODE ANN. § 

27.009(b). Finally, WPC attached Trippe’s affidavit to its response.

Herzog filed a reply and then a supplemental reply to WPC’s response. In part to 

address WPC’s objections to her affidavit that she had attached to her TCPA motion to 

dismiss, Herzog attached her own supplemental affidavit to her reply and her own 

amended affidavit to her supplemental reply. Herzog further attached her attorney’s 

affidavit to her supplemental reply to support her TCPA motion to dismiss. Finally, 

Herzog filed objections to Trippe’s affidavit. 

The trial court held a nonevidentiary hearing on Herzog’s TCPA motion to 

dismiss. During the hearing, WPC withdrew its request for attorney’s fees under section 

27.009(b). After the hearing, the trial court then signed an order denying Herzog’s 

objections to Trippe’s affidavit and an order denying Herzog’s TCPA motion to dismiss.

Herzog thereafter filed a “Request for Findings of Fact and Conclusions of Law,”

in which she specifically asked the trial court “to file findings of fact and conclusions of 

law regarding whether the legal action was brought to deter or prevent the moving party 
Herzog v. Waco Primary Care, P.A. Page 6

from exercising constitutional rights and whether the legal action was brought for an 

improper purpose under § 27.001 of the Texas Civil Practice and Remedies Code.” See 

Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.007(a) (“At the request of a party 

making a motion under Section 27.003, the court shall issue findings regarding whether 

the legal action was brought to deter or prevent the moving party from exercising 

constitutional rights and is brought for an improper purpose, including to harass or to 

cause unnecessary delay or to increase the cost of litigation.”) (amended 2019) (current 

version at TEX. CIV. PRAC. & REM. CODE ANN. § 27.007(a)). The trial court accordingly

made the following “Findings Under Texas Civil Practice and Remedies Code Section 

27.007”:

1. This legal action was not brought by Plaintiff [WPC] to deter or 

prevent the moving party [Herzog] from exercising constitutional 

rights. The Court further finds that the legal action was not brought 

for an improper purpose, nor to harass or delay or increase the cost 

of litigation.

2. The Court finds that Plaintiff [WPC], in open court, withdrew its 

request for attorneys’ fees under Chapter 27.009, and that the motion 

was not brought for [an] improper purpose.

Herzog subsequently filed a “Request for Additional Findings of Fact & 

Conclusions of Law,” citing Rules of Civil Procedure 297 and 298. Herzog requested that 

the trial court make specific findings and conclusions about whether WPC established by 

clear and specific evidence a prima facie case for each essential element of each of its 

claims, see TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c), and about the applicability of 

the commercial-speech exemption to this case, see Act of May 24, 2013, 83d Leg., R.S., ch. 

1042, § 3, sec. 27.010(b) (amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE 
Herzog v. Waco Primary Care, P.A. Page 7

ANN. § 27.010(a)(2)). The record contains no additional findings or conclusions from the 

trial court.

Issue One

In her first issue, Herzog contends that the trial court erred in denying her TCPA 

motion to dismiss.

AUTHORITY

We review the trial court’s ruling on a TCPA motion to dismiss de novo. Martin v. 

Walker, 606 S.W.3d 565, 567 (Tex. App.—Waco 2020, pet. denied); Beving v. Beadles, 563 

S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied).

Under the TCPA, as a threshold matter, the moving party must show by a 

preponderance of the evidence that the TCPA properly applies to the legal action against 

it. Youngkin, 546 S.W.3d at 679; see Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 

27.005(b) (amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 

27.005(b)). In other words, the moving party must show by a preponderance of the 

evidence that the legal action against it “is based on, relates to, or is in response to [the

moving] party’s exercise of the right of free speech, right to petition, or right of 

association.” Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.003(a) (amended 

2019) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a)); see Youngkin, 546 

S.W.3d at 680. If the moving party meets that burden, the nonmoving party must 

establish by clear and specific evidence a prima facie case for each essential element of its 

claims. Youngkin, 546 S.W.3d at 679; see TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c). If 

the nonmoving party satisfies that requirement, the burden shifts back to the moving 
Herzog v. Waco Primary Care, P.A. Page 8

party to prove each essential element of any valid defenses by a preponderance of the 

evidence. Youngkin, 546 S.W.3d at 679–80; see Act of May 24, 2013, 83d Leg., R.S., ch. 1042, 

§ 2 (amended 2019) (current version at TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d)).

Despite the foregoing procedure, the TCPA expressly exempts certain actions from

its application. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.010, amended by

Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 3 (amended 2019 & 2021) (current version 

at TEX. CIV. PRAC. & REM. CODE ANN. § 27.010). “[An] exemption, of course, is wholly 

unnecessary unless the TCPA applies.” Castleman v. Internet Money Ltd., 546 S.W.3d 684, 

688 (Tex. 2018) (per curiam). But, even if the moving party shows by a preponderance of 

the evidence that the legal action against it is based on, relates to, or is in response to the 

moving party’s exercise of the right of free speech, right to petition, or right of association,

the TCPA does not apply to the legal action—and thus the moving party may not use the 

TCPA to dismiss the action—if the action falls under a TCPA exemption. See Act of May 

21, 2011, 82d Leg., R.S., ch. 341, § 2, sec. 27.010, amended by Act of May 24, 2013, 83d Leg., 

R.S., ch. 1042, § 3 (amended 2019 & 2021); see also State ex rel. Best v. Harper, 562 S.W.3d 1, 

11 (Tex. 2018) (noting that movant cannot invoke TCPA’s protections if TCPA exemption 

applies). The nonmoving party bears the burden of showing that an exemption applies. 

Martin, 606 S.W.3d at 569.

As relevant here, the TCPA

does not apply to a legal action brought against a person primarily engaged 

in the business of selling or leasing goods or services, if the statement or 

conduct arises out of the sale or lease of goods, services, or an insurance 
Herzog v. Waco Primary Care, P.A. Page 9

product, insurance services, or a commercial transaction in which the 

intended audience is an actual or potential buyer or customer.

Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 3, sec. 27.010(b) (amended 2019). This 

exemption is commonly referred to as the “commercial-speech exemption.” Martin, 606 

S.W.3d at 567–68; Morrison v. Profanchik, 578 S.W.3d 676, 680 (Tex. App.—Austin 2019, no 

pet.). The Texas Supreme Court has interpreted the commercial-speech exemption to 

apply when (1) the defendant (here, Herzog) was primarily engaged in the business of 

selling or leasing goods or services, (2) the defendant made the statement or engaged in 

the conduct on which the claim is based in the defendant’s capacity as a seller or lessor 

of those goods or services, (3) the statement or conduct at issue arose out of a commercial 

transaction involving the kind of goods or services the defendant provides, and (4) the 

intended audience of the statement or conduct was actual or potential customers of the 

defendant for the kind of goods or services the defendant provides. Castleman, 546 

S.W.3d at 688. Because a legal action falls within the commercial-speech exemption only 

when all four elements are satisfied, the failure of the nonmoving party to establish any 

one element is sufficient to prevent the exemption from applying. RigUp, Inc. v. Sierra 

Hamilton, LLC, 613 S.W.3d 177, 187 (Tex. App.—Austin 2020, no pet.); see Castleman, 546 

S.W.3d at 690–91.

DISCUSSION

We begin with Herzog’s argument that WPC could not have satisfied its burden 

of showing that the commercial-speech exemption applies in this case because WPC was 

required to provide “actual evidence to support the application of the exemption,” and the 
Herzog v. Waco Primary Care, P.A. Page 10

only evidence that WPC attached to its response to Herzog’s TCPA motion to dismiss was 

Trippe’s “conclusory, self-serving affidavit . . . which failed to offer any proof that the 

commercial[-]speech exemption applied.” While we agree that WPC, the nonmoving 

party here, had the burden of showing that the commercial-speech exemption applies in 

this case, we disagree that the trial court was restricted to considering only Tripp’s 

affidavit in determining whether WPC met its burden. 

The TCPA provides: “In determining whether a legal action should be dismissed 

under this chapter, the court shall consider the pleadings and supporting and opposing 

affidavits stating the facts on which the liability or defense is based.” Act of May 21, 2011, 

82d Leg., R.S., ch. 341, § 2, sec. 27.006(a) (amended 2019) (current version at TEX. CIV.

PRAC. & REM. CODE ANN. § 27.006(a)). Accordingly, in determining whether WPC met its 

burden of showing that the commercial-speech exemption applies in this case, the trial 

court should have also considered the factual allegations contained in WPC’s petition and 

Herzog’s description of the events in her own affidavit. See id.; cf. VetMoves v. Lone Star 

Veterinarian Mobile Surgical Specialists, PC, No. 02-19-00340-CV, 2020 WL 1887770, at *3 

(Tex. App.—Fort Worth Apr. 16, 2020, no pet.) (mem. op.) (“[T]he petition alone satisfies 

the [commercial-speech] exemption’s application.”); Gaskamp v. WSP USA, Inc., 596 

S.W.3d 457, 480 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (en banc) (“[T]he 

factual allegations contained in the pleadings may alone be sufficient to demonstrate that 

the nature of the claims is such that the claims are statutorily exempt without need of 

additional proof.”); Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 889 (Tex. App.—Austin 

2018, pet. denied) (“In determining whether some of the Pivot Plaintiffs’ claims fall within 
Herzog v. Waco Primary Care, P.A. Page 11

the commercial-speech exemption, we examine the ‘evidence,’ which in this case consists 

of the plaintiffs’ pleadings.”). 

With the foregoing in mind, we turn to Herzog’s argument that the commercialspeech exemption does not apply in this case because WPC did not meet its burden of 

establishing the third Castleman element, i.e., that Herzog’s communications arose out of 

a commercial transaction involving the kind of services Herzog provides. To support her 

position, Herzog relies heavily on Global Tel*Link Corp. v. Securus Techs., Inc., No. 05-16-

01224-CV, 2017 WL 3275921 (Tex. App.—Dallas July 31, 2017, pet. dism’d) (mem. op.). 

In Global Tel*Link, Securus Technologies, Inc. (Securus) and Global Tel*Link 

Corporation (GTL) each provided “telephone and video communications system services 

at correctional facilities for the use of inmates and law enforcement agencies.” Id. at *1. 

Securus and GTL each owned patents to protect the intellectual property related to such 

services, and Securus and GTL became involved in federal litigation against each other 

related to their respective patents. Id. Among GTL’s claims in that litigation was its 

contention that Securus was infringing on two of its patents. Id. Securus denied GTL’s 

allegations and challenged the validity of the two patents. Id. In connection with those 

challenges, Securus also filed petitions for inter partes review in the U.S. Patent and 

Trademark Office (PTO), requesting that the PTO “reexamine the GTL patents and cancel 

various of the patents’ claims.” Id. The PTO initially agreed to review Securus’s challenge 

to one of GTL’s patents but subsequently rejected the challenge. Id. 

After the PTO’s ruling, GTL sent, via email, an “Important Industry News 

Alert” to members of law enforcement, correctional facility officers, and 

their representatives announcing the PTO’s ruling. GTL said the ruling 
Herzog v. Waco Primary Care, P.A. Page 12

cleared the way for it to pursue its patent infringement claims against 

Securus and seek injunctive relief and damages. GTL further said, if 

granted, an injunction “could have ramifications for customers using the 

infringing technology.”

Id. Thereafter, GTL “secured another favorable ruling from the PTO” regarding the other 

disputed patent. Id. at *2.

GTL then sent another email, again titled “Important Industry News Alert.” 

That email similarly stated the PTO’s ruling cleared the way for GTL to 

pursue its patent infringement claims and seek an injunction. GTL noted 

that “if granted” an injunction would prohibit Securus from using GTL’s 

“patented technologies . . . at all facilities where infringement is occurring.” 

GTL added that “they were only months away from finally being able to 

show a jury how Securus infringes on the GTL patents.”

Id. 

Securus subsequently sued GTL for defamation, business disparagement, and 

tortious interference with existing contracts. Id. GTL filed a motion to dismiss Securus’s 

claims under the TCPA. Id. Securus responded, in part, that the commercial-speech 

exemption applied to GTL’s communications. Id. The trial court ultimately denied GTL’s 

TCPA motion to dismiss. Id. GTL then appealed. The Dallas Court of Appeals concluded

that even though Securus showed that (1) GTL’s communications were “about” its

services and (2) GTL had a commercial motive, Securus did not show that GTL’s 

communications “arose out of any sale of either GTL’s or Securus’s goods or services, any 

contemplated or proposed sale, or any other actual or contemplated commercial 

transaction.” Id. at *4. The court therefore held that Securus failed to show that the 

commercial-speech exemption applied to GTL’s communications. Id.
Herzog v. Waco Primary Care, P.A. Page 13

Herzog argues here that, similarly to GTL’s communications, her communications 

may have been “about” her services, but they did not arise out of a sale of her services. 

Herzog asserts that her communications “merely regarded her move to a new location in 

order to keep her patients informed.” Herzog further argues that her communications 

could not have arisen out of any sale of her services because the communications were 

sent only to patients who had not sought care from her in the month before she moved. 

We believe, however, that the pleadings and record evidence show that Herzog’s 

communications were not just “about” her services but that they arose out of the sale of 

her services.

We initially note that the Dallas Court of Appeals decided Global Tel*Link before 

the Texas Supreme Court decided Castleman.2 Consequently, although the Global Tel*Link 

court considered similar elements to those outlined in Castleman in determining whether 

the commercial-speech exemption applied in that case, the Global Tel*Link court did not 

have the benefit of the Castleman opinion in resolving Global Tel*Link. Furthermore, as an 

intermediate appellate court, we must follow the precedent of the Texas Supreme Court 

on state-law issues. See, e.g., Hegar v. Xerox Corp., 633 S.W.3d 298, 315 (Tex. App.—

Houston [14th Dist.] 2021, pet. filed); Hardy v. Robinson, 170 S.W.3d 777, 781 (Tex. App.—

Waco 2005, no pet.).

The Castleman court recognized that the commercial-speech exemption applies 

only to certain communications related to services in the marketplace—communications 

2 Herzog also filed her original appellant’s brief before Castleman was decided, but she filed her reply brief 

after Castleman was decided and discusses Castleman therein.
Herzog v. Waco Primary Care, P.A. Page 14

made not as a protected exercise of free speech by an individual, but as commercial 

speech that does “no more than propose a commercial transaction.” Castleman, 546 S.W.3d 

at 690 (emphasis added) (quoting Posadas de P.R. Assocs. v. Tourism Co. of P.R., 478 U.S. 

328, 340, 106 S.Ct. 2968, 2976, 92 L.Ed.2d 266 (1986)). The Castleman court “further implied 

that the [commercial-speech] exemption applies when communications involve business 

pursuits for oneself or a business stands to profit from the statements at issue.” Clean 

Energy v. Trillium Transp. Fuels, LLC, No. 05-18-01228-CV, 2019 WL 3212145, at *5 (Tex. 

App.—Dallas July 9, 2019, no pet.) (mem. op.) (citing Castleman, 546 S.W.3d at 691).

Here, WPC alleged in its petition that Herzog used WPC’s patient lists to “contact 

and procure” WPC’s patients for her new place of employment. Herzog then stated in 

her own affidavit that she communicated with patients that she was leaving WPC, that 

she would be working for the Providence Family Practice Clinic with a specific doctor, 

and that her patients could make appointments with her there if they chose to do so. The 

pleadings and record evidence therefore show that, at a minimum, Herzog’s

communications encouraged patients to seek medical services from her at her new 

practice rather than from WPC. We thus conclude that Herzog’s communications arose 

out of a commercial transaction, satisfying the third Castleman element. See Castleman, 

546 S.W.3d at 690–91.

Finally, we turn to Herzog’s argument that the commercial-speech exemption does 

not apply in this case because the relationship between Herzog and those with whom she 

communicated was not “the standard arm’s length vendor/buyer commercial 

relationship” but a fiduciary relationship between a healthcare provider and her patients. 
Herzog v. Waco Primary Care, P.A. Page 15

This argument essentially challenges whether WPC met its burden of establishing the 

second Castleman element, i.e., that Herzog made the communications on which WPC’s

claims are based in Herzog’s capacity as a seller of her services.

Herzog stated in her affidavit, and reiterated in her briefing, that she sent 

unsolicited, targeted communications to patients who had not sought care from her in the 

month before she moved. Herzog further stated in her affidavit that the substance of her 

communications was only that she was leaving WPC, that she would be working for the 

Providence Family Practice Clinic with a specific doctor, and that her patients could make 

appointments with her there if they chose to do so. The pleadings and record evidence

therefore show that the intended goal of Herzog’s communications was to encourage 

patients to seek medical services from her at her new practice rather than from WPC. 

Accordingly, although a fiduciary relationship exists between a healthcare provider and 

patient in some circumstances,see, e.g., Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 

745, 754 (Tex. App.—Fort Worth 1998, pet. denied) (“[T]he physician–patient relationship 

gives rise to a fiduciary relationship.”), the pleadings and record evidence here show that 

Herzog made the communications on which WPC’s lawsuit is based in Herzog’s capacity 

as a seller of her medical services, satisfying the second Castleman element.

In light of the foregoing, 3 we conclude that WPC met its burden of showing that 

the commercial-speech exemption applies. The TCPA therefore does not apply to WPC’s 

3 Herzog does not challenge that WPC established that she was primarily engaged in the business of selling 

medical services, i.e., the first Castleman element, or that the intended audience of her communications was

her actual or potential customers for the kind of services she provides, i.e., the fourth Castleman element.
Herzog v. Waco Primary Care, P.A. Page 16

lawsuit against Herzog. See Act of May 24, 2013, 83d Leg., R.S., ch. 1042, § 3, sec. 27.010(b)

(amended 2019). Accordingly, the trial court did not err in denying Herzog’s TCPA 

motion to dismiss. Herzog’s first issue is overruled.

Issue Two

In her second issue, Herzog contends that the trial court erred in denying her 

objections to Trippe’s affidavit. However, having overruled Herzog’s first issue without

reliance on Trippe’s affidavit, we need not reach Herzog’s second issue. 

Issue Three

In her third issue, Herzog contends that the trial court erred in finding that the 

underlying lawsuit was not brought to deter or prevent her from exercising constitutional 

rights and was not brought for an improper purpose. For the reasons stated in Herzog’s 

first issue, we overrule Herzog’s third issue.

Conclusion

We affirm the trial court’s order denying Herzog’s TCPA motion to dismiss.

MATT JOHNSON

Justice

Before Justice Johnson, 

Justice Smith, and

Justice Wright4

Affirmed

4 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by 

assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE ANN. §§ 74.003, 75.002, 

75.003.
Herzog v. Waco Primary Care, P.A. Page 17

Opinion delivered and filed February 2, 2022

[CV06]