FILED
`DALLAS COUNTY
`1/11/2019 4:05 PM
`FELICIA PITRE
`DISTRICT CLERK
`
`CAUSE NO. DC-18-07841
`
`Margaret Thomas
`
`IN THE DISTRICT COURT OF
`
`DALLAS COUNTY, TEXAS
`
`EAST LAKE CAPITAL MANAGEMENT §
`LLC, SH REGENCY LEASING LLC, and §
`EL FW INTERMEDIARY I LLC
`
`Plaintiffs and Counter-Defendants,
`
`V.
`
`NATIONAL HEALTH INVESTORS, INC.
`and NHI-REIT OF AXEL LLC
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`Defendants, Counter-Claimant, and
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`Third-Party Plaintiff.
`
`V.
`
`ANDREW WHITE, Individually,
`BENJAMIN LORD, Individually,
`WESLEY MURRAY, Individually,
`DAVID GAWLAS, Individually,
`CHELSEA BALESTRA, Individually,
`SH REGENCY CHARLOTTE LEASING,
`
`LLC, SH REGENCY INDIANAPOLIS
`
`LEASING, LLC, and SH REGENCY
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`MADISON LEASING, LLC.
`
`cmmmmwwmmmmwwmmmmwwwmmmwwm
`
`Third-Party Defendants
`
`95TH JUDICIAL DISTRICT
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
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`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`Counter-Defendants East Lake Capital Management LLC (“East Lake”) and SH Regency
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`Leasing LLC (“Regency”) and Third-Party Defendants Andrew White (“White”), Benjamin Lord
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`(“Lord”), Wesley Murray (“Murray”), David Gawlas (“Gawlas”), Chelsea Balestra (“Balestra”),
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`SH Regency Charlotte Leasing, LLC, SH Regency Indianapolis Leasing, LLC, and SH Regency
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`Madison Leasing, LLC (collectively, “Counter-Defendants”)
`
`file this Motion to Dismiss
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
`
`PAGE 1
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`

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`Pursuant to the Texas Citizens’ Participation Act (“Motion”) against Defendant NHI—REIT
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`of Axel, LLC (“NHI-REIT” or “Landlord”)1 and respectfully show as follows.
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`I.
`
`INTRODUCTION
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`This case involves NHI’s wrongful efforts to conceal its poor financial performance at the
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`expense of Counter-Defendants, among others, and, in furtherance of this objective, to egregiously
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`interfere with Counter-Defendants’ contracts and business. NHI began this effort by first
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`attempting to re—trade its contracts with Counter—Defendants to shore up NHI’s increasingly poor
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`financial performance and mask the gross mismanagement of NHI’s executives. As part of its
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`strong-arm tactics to renegotiate the leases on better terms, NHI began making false claims of
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`“default” under the lease, an unfortunately common stratagem among unscrupulous landlords. At
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`the same time, NHI embarked on a campaign to disrupt Counter-Defendants’ business and frustrate
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`performance of the very contracts NHI is charged to fulfill, including by “vexatious and harassing”
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`litigation (as ruled by this Court) and trespassing onto Counter—Defendants’ leased premises to
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`steal confidential documents and induce Counter-Defendants’ employees to sign affidavits
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`containing false information under false pretenses, which Counter-Defendants then used for
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`litigation advantage (all while during a statutorily—required stay in discovery).2
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`NHI-REIT has now filed its Second Supplemental Counterclaims and Third-Party Claims
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`(“Second Supplemental Counterclaims”) to further disrupt Counter-Defendants’ business, drive
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`up litigation costs, and harass Counter—Defendants. NHI’s misguided tactics fail once again.
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`Indeed, NHI-REIT’S Second Supplemental Counterclaims epitomizes a strategic lawsuit against
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`1 “NHI” refers collectively to NHI-REIT and Defendant National Health Investors, Inc.
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`2 NHI’s and its executives Eric Mendelsohn, Kristi Gaines, Kevin Pascoe, Roger Hopkins, Cameron Bell’s extreme
`malfeasance is detailed at length in Plaintiffs” Original and Supplemental Petitions and Motion for Show Cause Order,
`Contempt, and Sanctions, which Counter-Defendants incorporate herein by reference.
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 2
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`

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`public participation prohibited by the Texas Citizens’ Participation Act (“TCPA” or the “Act”).
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`TEX. CIv. PRAC. & REM. CODE § 27.001, et seq.
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`The Second Supplemental Counterclaims adds new allegations and includes for the first
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`time claims for breach of a security agreement, fraudulent transfer, tortious interference with
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`existing contracts, conspiracy, aiding and abetting/assisting or encouraging, aiding and
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`abetting/assisting and participating, and vicarious and personal liability. These new claims are
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`“based on, relate[ ] to, [and] in response to” communications by Counter—Defendants concerning
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`payments from residents at Regency’s senior care facilities, including specifically:
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`1. Counter-Defendants allegedly “depositing” the residents’ checks in, or “transferring”
`the funds after depositing the checks to, “bank accounts held in the name of East Lake
`or another entity associated with White[;]”
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`2. White allegedly “instruct[ing] employees at the Facilities not to deposit checks received
`from residents[;]”
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`3. Counter—Defendants allegedly sending invoices to residents demanding additional
`payments; and
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`4. Counter-Defendants allegedly conspiring with one another in performing the above
`acts in the course of operating their facilities.
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`These communications tn'gger the TCPA because they (i) concern a good, product, or service in
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`the marketplace, health or safety, and economic or community well-being; and (ii) were made in
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`furtherance of Counter-Defendants’ business enterprise and purported joint effort to the detriment
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`of Counter-Plaintiffs. Id. at §§ 27.001, 27.003. In fact, NHI—REIT has judicially admitted the
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`applicability of the TCPA here. In advance of its own prior TCPA motion to dismiss, NHI-REIT
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`argued that the TCPA applied to communications relating to the operations and services involving
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`Counter-Defendants’ senior care facilities because they “quite obviously have a connection to
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`health or safety, economic well-being, and a good, produce, or service in the marketplace.”
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 3
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`

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`Accordingly, absent “clear and specific evidence” of each element of its claims, the TCPA
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`requires that this Court dismiss NHI-REIT’s entire Second Supplemental Counterclaims with
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`prejudice, award Counter-Defendants their attorneys’ fees, and sanction NHI-REIT. NHI-REIT
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`cannot meet this burden because its claims are meritless. And even if it somehow did, the Court
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`must still dismiss the Second Supplemental Counterclaims because of Counter-Defendants’
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`defenses.3
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`II.
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`NHI—REIT’S ALLEGATIONS
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`NHI-REIT’s own allegations, without more, establish that the TCPA applies to all of the
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`claims in its Second Supplemental Counterclaims. See Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex.
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`2017) (“When it is clear fiom the plaintiff s pleadings that the action is covered by the Act, the
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`defendant need show no more”). Counter-Defendants therefore only summarize here the relevant
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`allegations. Because the TCPA shifts the burden of proof to NHI-REIT (see Section III(A)(1)
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`infra), Counter—Defendants do not, at this stage, submit evidence dispositive of NHI—REIT’s
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`claims.
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`The parties. East Lake is a private equity firm based in Dallas, Texas specializing in real
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`estate and healthcare—related investments. Regency is a tenant who leases and operates healthcare
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`real estate. Specifically, Regency leases and operates, through various contractual relationships
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`with subtenants SH Regency Charlotte Leasing, LLC, SH Regency Indianapolis Leasing, LLC,
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`and SH Regency Madison Leasing, LLC (the “‘Subtenants”), other entities, affiliate companies,
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`3 As explained below, Counter-Defendants reserve the right to address any deficiencies or issues in a Reply brief after
`reviewing NHI-REIT’S response and any purported evidence. Counter-Defendants further reserve their right to submit
`their defenses, if NHI-REIT is able to shift the burden of proof.
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 4
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`and third—parties, three healthcare facilities pursuant to a Master Lease by and between Regency
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`and Landlord dated June 30, 2015 (the “Regency Lease”).4
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`NHI—REIT’S allegations. On December 17, 2018, NHI filed its Second Supplemental
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`Counterclaims. It centers on the July 1, 2015 Security Agreement between NHI—REIT (the
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`Landlord), Regency, and the Subtenants (“Security Agreement”). NHI-REIT alleges that the
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`Security Agreement was meant to provide NHI-REIT with additional protection in the event
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`Regency defaulted under the Regency Lease by granting NHI—REIT a security interest in the assets
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`of Regency and its Subtenants (the “Collateral”). Sec. Supp. Countercl. 11 29. The Collateral, NHI-
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`REIT says, “includes checks written by residents of the Facilities to Regency Tenant.” 1d. Regency
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`and its Subtenants were permitted to use the Collateral in the ordinary course of business, but that
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`right ceased upon the occurrence and during the continuation of an Event of Default under the
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`Regency Lease. 1d. at 11 32.
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`NHI—REIT alleges that Regency has been in default of the Regency Lease since early 2018
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`and thus Regency and Subtenants’ right to use the Collateral “terminated until further notice from
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`Landlord.” 1d. (brackets omitted). 1d. at W 32, 34. On November 29, 2018, NHI-REIT demanded
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`via letter (the “Security Notice”) that Regency and the Subtenants “(1) notify its Receivable
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`Debtors to make payment of any or all Receivable or Receivables directly to Landlord; and (2)
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`segregate all checks and other forms of remittances received by Debtor on Receivables and deliver
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`them to Landlord in the identical form as that in which received with proper endorsements.” Id. at
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`'n35.
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`
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`4 These three facilities are: the Maybelle Carter facility in Nashville, Tennessee (“Maybelle Carter”), the MorningSide
`of College Park facility in Indianapolis, Indiana (“MorningSide”), and the Regency at Pineville facility in Charlotte,
`North Carolina (“Regency at Pineville”) (collectively, the “Regency Facilities”).
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 5
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`

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`NHI—REIT contends that Regency and the Subtenants did not abide by the Security
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`Agreement and instead Counter-Defendants misused, commingled, and fraudulently transferred
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`the checks from residents. NHI-REIT specifically alleges in relevant part as follows:
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`0
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`In early 2018, White or others “instructed employees at the [Regency] Facilities not
`to deposit checks received from residents.” Sec. Supp. Countercl. 1] 36. Due to these
`instructions, more than $2 million in resident checks accumulated at the [Regency]
`Facilities and were held by the executive directors and/or other employees at the
`[Regency] Facilities.” Id.
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`0 Because of the uncashed checks, NHI-REIT asserts, “the bank accounts of the
`elderly residents who provided these checks remained unchanged” and “[u]p0n
`information and belief, several residents lost their insurance benefits or government
`benefits after their outstanding balances...exceeded the applicable income/asset
`thresholds.” Id. at] 37.
`
`o NHI-REIT alleges that, after receiving the Security Notice, Regency and its
`Subtenants did not instruct the residents to pay Landlord and instead Counter-
`Defendants “sent invoices to residents demanding additional payments” and “began
`collecting additional checks from the residents for November and December 2018
`payments.” Id. at 1]] 6, 38.
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`- NHI-REIT claims that Counter-Defendants then “began cashing these checks and
`the checks that had been previously provided, but uncashed, since February 2018.”
`Id. at 1] 39. Counter-Defendants allegedly “deposited” resident checks in, or
`“transferred” the funds after depositing the checks to, “bank accounts held or
`controlled by East Lake and/or White rather than those for the use and benefit of
`Regency [ ] and the Subtenants.” Id. at 41.
`
`o NHI-REIT alleges that Counter-Defendants and Third-Party Defendants conspired
`and aided and abetted in the purported misuse of the checks. Id. at 1] 43.
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`NHI-REIT thus assert claims for breach of the Security Agreement, fraudulent transfer,
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`tortious interference with existing contracts, conspiracy, aiding and abetting/assisting or
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`encouraging, aiding and abetting/assisting and participating, and vicarious and personal liability.
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`See generally Sec. Supp. Countercl.
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 6
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`III.
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`LEGAL STANDARD
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`A.
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`The TCPA’s Framework.
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`The TCPA,
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`commonly called Texas’
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`“anti-SLAPP”
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`statute,
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`“encourage[s]
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`and
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`safeguard[s] the constitutional rights of persons to petition, speak freely, associate freely, and
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`otherwise participate in government
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`to the maximum extent permitted by law” while
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`simultaneously “protect[ing] the rights of a person to file meritorious lawsuits for demonstrable
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`injury.” Id. § 27.002. The Act’s expedited procedures, which include an automatic discovery stay
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`and the availability of interlocutory appeal, allow courts to dismiss claims before judicial resources
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`go to waste and unnecessary attomey’s fees mount. Id. §§ 27.003(c) (automatic discovery stay),
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`27.008 (interlocutory appeal).
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`Motions to dismiss under the TCPA’S burden-shifting analysis involve three inquiries.
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`Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). First, Counter-Defendants have the initial
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`burden of showing that the claims fall within the scope of the TCPA. That, in turn, requires a
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`showing that NHI-REIT instituted (i) a “legal action” (ii) “based on, related to, or [ ] in response
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`to” (iii) the “exercise of the right of free speech” or the “right to association.” Id. at § 27.005(b);
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`Cavin v. Abbott, 545 S.W.3d 47, 69 (Tex. App—Austin 2017, no pet.) (ruling “based on,” “relates
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`to” and “in response to” are not to be “limited according to, e.g., the nature, directness, or strength”
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`of the connections). The TCPA defines the term “exercise of the right of free speech” and “exercise
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`of the right of association” broadly:
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`“Exercise of the right of free speech” means “a communication made in connection
`with a matter of public concern.”
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`“Exercise of the right of association” means “a communication between individuals
`who join together to collectively express, promote, pursue, or defend common
`interests.”
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 7
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`TEX. CIV. PRAC. & REM. CODE § 27.001. “Communication” in turn “includes the making or
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`submitting of a statement or document in any form or medium, including oral, visual, written,
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`audiovisual, or electronic.” Id. at 27.001(1); Adams v. Starside Custom Builders, LLC, 547 S.W.3d
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`890, 894 (Tex. 2018) (“Almost every imaginable form of communication, in any medium, is
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`covered”).
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`The protections the TCPA affords extend beyond those granted by the First Amendment to
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`the US. Constitution. Youngkin, 546 S.W.3d at 681 (“It does not follow from the fact that the
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`TCPA professes to safeguard the exercise of certain First Amendment rights that it should only
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`apply to constitutionally guaranteed activities”); see also Elite Auto Body LLC v. Autocraft
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`Bodywerks, Inc, 520 S.W.3d 191, 204 (Tex. App—Austin 2017, pet. dism’d); Cavin, 2017 WL
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`3044583, at *11.
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`Second, once Counter-Defendants demonstrate that the TCPA applies to NHI-REIT’S
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`claims, the burden shifts to NHI—REIT to “establish[] by clear and specific evidence a prima facie
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`case for each essential element” of each of their claims. TEX. CIV. PRAC. & REM. CODE § 27.005 (0);
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`M VS Int'l Corp. v. Int’l Advert. Sols., LLC, 545 S.W.3d 180 (Tex. App.—El Paso 2017, no pet.)
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`(prima facie case requirement applies separately to each element of each claim subject to the
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`TCPA). “The words ‘clear’ and ‘specific’ in the context of this statute have been interpreted
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`respectively to mean, for the former, “‘unambiguous,’ ‘sure,’ or ‘free from doubt’” and, for the
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`latter, “‘explicit’ or ‘relating to a particular named thing.” In re Lipsky, 460 S.W.3d 579, 590
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`(Tex. 2015). “[S]uch evidence must be provided with some degree of detail.” Van Der Linden v.
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`Khan, 535 S.W.3d 179, 188 (Tex. App—Fort Worth 2017, pet. denied). “[C]onc1usory statements
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`and bare, baseless opinions .
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`.
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`. are not probative of and accordingly do not establish a prima facie
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`case.” Peterson v. Overlook at Lake Austin, LR, No. 03-16-00557-CV, 2018 WL 1321532, at *3
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 8
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`(Tex. App. Mar. 15, 2018, no pet.). Failure to meet this burden mandates dismissal. TEX. CIV.
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`PRAC. & REM. CODE § 27.005(c).
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`Third, even if NHI-REIT musters clear and specific evidence of each element of each
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`claim,
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`the Court must dismiss the case anyway “if [Counter—Defendants] establish[ ] by a
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`preponderance of the evidence each essential element of a valid defense to the nonmovant’s
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`claims.” TEX. CIv. PRAC. & REM. CODE § 27.005(d).
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`If the Court dismisses NHI—REIT’s claims,
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`then the Court must award to Counter—
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`Defendants: “(1) court costs, reasonable attorney’s fees, and other expenses incurred in defending
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`against the legal action as justice and equity may require; and (2) sanctions against the party who
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`brought the legal action as the court determines sufficient to deter the party who brought the legal
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`action from bringing similar actions described in this chapter.” Id. at § 27.009(a).
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`B.
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`TCPA Deadlines.
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`A motion to dismiss under the TCPA must be brought within 60 days of service of a legal
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`action. TEX. CIV. PRAC. & REM. CODE § 27.003. Even if outside of the 60-day period, the Court
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`may extend the time to file “for good cause.” Id. Texas courts have construed the term “legal
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`action” in the TCPA to include amended petitions when those amendments assert new factual
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`allegations or new causes of action. See Hicks v. Group & Pension Administrators, Inc, 473
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`S.W.3d 518 (Tex. App—Corpus Christi-Edinburg 2015, no pet.) (reviving period for TCPA
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`motion to dismiss to address newly-filed causes of action); James v. Calkins, 446 S.W.3d 135
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`(Tex. App—Houston [lst Dist.] 2014, pet. denied) (acknowledging that the deadline for filing a
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`TCPA motion may be revived when the amended petition asserts new causes of action or alleged
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`new factual allegations).
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 9
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`Counter—Defendants’ Motion is timely. NHI—REIT filed and served East Lake and Regency
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`with the Second Supplemental Counterclaims on December 17, 2018, making February 15, 2019
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`their 60-day deadline. Although East Lake and Regency had already been a party to the suit, the
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`Second Supplemental Counterclaims significantly changes the factual bases and causes of action
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`against them. In it, NHI-REIT—for the first time—claims for breach of the security agreement,
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`fraudulent
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`transfer,
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`tortious interference with existing contracts, conspiracy, aiding and
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`abetting/assisting or encouraging, aiding and abetting/assisting and participating, and vicarious
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`and personal liability, each of which concerns new allegations based on the Security Agreement
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`and Counter-Defendants’ purported misuse of resident checks. See Sec. Supp. Countercl. at 1111 44-
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`82. Thus, East Lake’s and Regency’s Motion is timely.
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`As to the Third-Party Defendants, Lord was served with the Second Supplemental
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`Counterclaims on December 21, 2018, making February 20, 2019 his 60-day deadline, and White,
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`Murray, Gawlas, Balestra, and Subtenants either have not been served with the Second
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`Supplemental Counterclaims or were served with it in early January 2019. The Motion is thus
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`timely for them too.
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`IV.
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`ARGUMENTS & AUTHORITIES
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`A.
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`The TCPA Applies to NHI—REIT’S Claims.
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`1. The Second Supplemental Counterclaims is a “legal action ” under the TCPA.
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`A counterclaim falls expressly within the definition of “legal action.” TEX. CIV. PRAC. &
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`REM. CODE § 27.001 (6) (“legal action” definition includes “a. .
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`. counterclaim”); see also Serafine
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`v. Blunt, 466 S.W.3d 352, 360 (Tex. App—Austin 2015, no pet.) (holding counterclaims were a
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`“legal action” subject to Act). Thus, Counter-Defendants have met the first element of their initial
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`burden because the Second Supplemental Counterclaims is a “legal action.”
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 10
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`2. The Second Supplemental Counterclaims is “based on, relates to, or is in response
`to ” Counter—Defendants’ exercise of their right offree speech.
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`Under the TCPA, “an exercise of the right of free speech” is a communication made in
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`connection with a “matter of public concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(3). A
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`“matter of public concern” includes an issue related to “health or safety; environmental, economic,
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`or community well-being; the government; a public official or public figure; or a good, product,
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`or service in the marketplace.” Id. at § 27.001(7). “The TCPA does not require that the statements
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`specifically ‘mention’ health, safety, environmental, or economic concerns, nor does it require
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`more than a ‘tangential relationship’ to the same[.]” ExxonMobil Pipeline Co. v. Coleman, 512
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`S.W.3d 895, 900 (Tex. 2017). “[R]ather, TCPA applicability requires only that the defendant's
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`statements are ‘in connection With’ ‘issue[s] related to’ health, safety, environmental, economic,
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`and other identified matters of public concern chosen by the Legislature.” Id.
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`The communications NHI—REIT complains of here include:
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`(1) Counter—Defendants
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`allegedly depositing the checks in, or transferring the funds after depositing the checks to, “bank
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`accounts held in the name of East Lake or another entity associated With White,” (2) White
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`“instruct[ing] employees at the [Regency] Facilities not to deposit checks received from residents,”
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`(3) Counter-Defendants allegedly sending invoices to residents demanding additional payments,
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`and (4) communications between Counter-Defendants in the course of operating the Regency
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`Facilities and in allegedly perpetrating their purported conspiracy against Counter-Plaintiffs. See,
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`e.g., Sec. Supp. Countercl. at W 6, 7, 36, 38, 39, 41; see also TEX. CIV. PRAC. & REM. CODE §
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`27.001(1) (defining “Communication” to include “the making or submitting of a statement or
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`document in any form or medium. . ..”).
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`These alleged communications implicate matters of public concern. NHI—REIT has
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`judicially admitted this. In an earlier filing, NHI-REIT made a nearly identical argument to the
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 11
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`Court in support of its own anti—SLAPP motion. In it, NHI—REIT argued that this prong of the
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`TCPA applied because the communications at issue involved “NHI, its affiliates, and its tenants
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`(including East Lake and its affiliates) [who] are in the business of investing in, owning, and/or
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`operating senior housing and assisted living facilities, which provide medical care and assistance
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`to their residents.” See Counter-Pls’ Amended Motion to Dismiss at 11 23. It thus argued that
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`communications relating to NHI’s operations and services concerning the Regency Facilities
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`“quite obviously have a connection to health or safety, economic well—being, and a good, produce,
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`or service in the marketplace.” Id. So too here with respect
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`to Counter-Defendants’
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`communications concerning the operations and services of the same Regency Facilities.
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`Indeed, the communications were made in the context of the operations of and services
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`provided by Counter-Defendants at the Regency Facilities, and the receivables resulting from those
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`services, and thus were made “in connection with” a “good, product, or service in the
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`marketplace.” These same communications also concern “health or safety” and “economic and
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`community well-being” because they relate to care and assistance provided to residents of the
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`Regency Facilities, and payments by those residents, some of whom NHI-REIT alleges “lost their
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`insurance benefits or government benefits” due to Counter—Defendants alleged failure to deposit
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`the checks. See Sec. Supp. Countercl. at 11 37. Moreover, Counter-Plaintiffs contend these
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`communications give rise to the tortious conduct alleged in the Second Supplemental Petition,
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`including for fraudulent transfer and conspiracy. E.g, Deaver v. Desaz', 483 S.W.3d 668, 673 (Tex.
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`App—Houston [14th Dist] 2015, no pet.) (communication relating to identify theft “relates to
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`both economic and community well-being”); AOL, Inc. v. Maloufi Nos. 05-13-01637-CV & 05-
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`14—00568—CV, 2015 Tex. App. LEXIS 3312, 2015 WL 1535669, at *1—2 (Tex. App—Dallas Apr.
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
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`PAGE 12
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`2, 2015, no pet.) (mem. op.) (communication relating to Medicaid fraud related to community
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`well-being).
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`3. The Second Supplemental Counterclaims is “based on, relates to, or is in response
`to ” Counter-Defendants’ exercise of their right of association.
`
`The exercise of the right of association refers to “a communication between individuals
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`who join together to collectively express, promote, pursue, or defend common interests.” TEX.
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`CIv. PRAC. & REM. CODE § 27.001.
`
`Texas courts have held that communications made in furtherance of common interests,
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`such as employment interests, business interests, or a purported conspiracy harmful to the opposing
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`party, trigger the TCPA’s application under the right of association. E.g., Elite Auto Body LLC,
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`520 S.W.3d at 205 (applying TCPA under the right to associate prong to claims for trade secret
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`misappropriation, breach of fiduciary duty, unfair competition, and civil conspiracy when claims
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`related to communications between defendants and plaintiff’ 5 employees for purpose of furthering
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`common business interest); Craig v. Tejas Promotions, LLC, 550 S.W.3d 287, 295 (Tex. App.—
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`Austin 2018, pet. filed) (concluding allegations that co-defendants joined together to pursue their
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`business interests, in allegedly wrongful ways to harm plaintiff, triggered right of association
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`prong); Grant v. Pivot Tech. Sols, Ltd, 556 S.W.3d 865, 881 (Tex. App—Austin 2018, pet. filed)
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`(noting Plaintiffs’ allegations that Defendants “conspired to commit all these illegal acts. . .and that
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`[they] did so with a common plan.”) (internal quotes omitted).
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`Here,
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`the Second Supplemental Counterclaims not only recognizes that Counter—
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`Defendants joined together in furtherance of operating the Regency Facilities, but also alleges that
`
`they engaged in a joint effort to harm Counter-Plaintiffs. The communications of which Counter-
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`Plaintiffs complain (see Section IV(A)(2) supra) were made incident to both efforts. Indeed, the
`
`crux of NHI-REIT’s Second Supplemental Counterclaims is that, in the course of operating the
`
`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
`
`PAGE 13
`
`

`

`Regency Facilities, Counter—Defendants acted together to deprive NHl—REIT of receivables, in the
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`form of the checks, by not depositing them, and then when they did deposit them, they did so into
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`bank accounts held in the name of East Lake or another entity associated with White. E.g., Sec.
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`Supp. Countercl. at W 6, 7, 36, 38, 39, 41. By alleging that Counter—Defendants engaged in the
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`above conduct, NHI-REIT leaves no doubt that its claims target communications “between
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`individuals who join[ed] together to .
`
`.
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`. pursue .
`
`.
`
`. common interests.” Thus, the right of
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`association prong of the TCPA applies to NHI—REIT’s Second Supplemental Counterclaims.
`
`B.
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`NHI—REIT Cannot Establish Prima Facie Claims with Clear and Specific Evidence.
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`Because the TCPA applies, NHI-REIT must establish by “clear and specific evidence a
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`prima facie case for each essential element” of its claims for breach of the security agreement,
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`fraudulent
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`transfer,
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`tortious interference with existing contracts, conspiracy, aiding and
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`abetting/assisting or encouraging, aiding and abetting/assisting and participating, and vicarious
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`and personal liability, or face dismissal of those claims. Witt, 404 S.W.3d at 723-24 (quoting TEX.
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`CIV. PRAC. & REM. CODE § 27.005(c)); MVS Int’l Corp, 2017 WL 4534331.
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`At this time, Counter-Defendants need not “prove a negative” — i.e., prove why NHI-REIT
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`cannot make its prima facie case — because it has not put forth any admissible evidence to date.
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`Counter-Defendants thus reserve the right to address any deficiencies or issues in a Reply brief
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`after reviewing NHI-REIT’s response and any purported evidence. Counter-Defendants further
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`reserve their right to submit their defenses, if NHI-REIT shifts the burden of proof.
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`V.
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`CONCLUSION & PRAYER
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`Counter-Defendants and Third-Party Defendants respectfully request that the Court grant
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`the Motion to Dismiss Pursuant to the Texas Citizens’ Participation Act, dismiss with prejudice
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`all of NHI—REIT’s claims set forth in its Second Supplemental Counterclaims, award Counter—
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`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
`
`PAGE 14
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`

`

`Defendants and Third—Party Defendants their costs, expenses, and reasonable attorneys’ fees, as
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`well as sanctions against NHI-REIT, and award any additional relief to which Counter-Defendants
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`and Third-Party Defendants may show themselves entitled.
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`DATED: January 11, 2019
`
`Respectfully submitted,
`
`
`/S/ Samuel B. Hardy
`Eric W. Pinker
`
`Texas State Bar No.
`
`epinker@l}mnllp.com
`Samuel B. Hardy, IV
`Texas State Bar No. 24074360
`
`shardnglynnllpcom
`Patrick Disbennett
`
`Texas State Bar No. 24094629
`
`pdisbennett@lynnllp.com
`Michael Kalis
`
`Texas State Bar No. 24092606
`
`mkalinglynnllpcom
`Paulette C. Miniter
`
`Texas State Bar No. 24102213
`
`pminiter@lynnllp.com
`LYNN PINKER Cox & HURST, LLP
`
`2100 Ross Avenue, Suite 2700
`
`Dallas, Texas 75201
`
`(214) 981-3 800 - Telephone
`(214) 981-3839 - Facsimile
`
`ATTORNEYS FOR PLAINTIFFS/COUNTER-
`
`DEFENDANTS AND THIRD-PARTY
`
`DEFENDENTS
`
`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
`
`PAGE 15
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`

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`CERTIFICATE OF SERVICE
`
`I certify that counsel of record as shown below have been served a true and correct copy of
`the foregoing document Via electronic filing on January 11, 2019:
`
`Daniel D. McGuire
`
`Michael M. Besser
`
`POLSINELLI PC
`
`2950 N. Harwood, Suite 2100
`
`Dallas, Texas 75201
`
`dmcguire@polsinelli.com
`mbesser@polsinellicom
`
`/S/ Samuel B. Hardy
`Samuel B. Hardy
`
`COUNTER-DEFENDANTS AND THIRD-PARTY DEFENDANTS’ MOTION TO
`DISMISS PURSUANT TO THE TEXAS CITIZENS’ PARTICIPATION ACT
`
`PAGE 16
`
`