Dr. Lawrence Broder, M.D. and Round Rock Medical Aesthetics & Urgent Care PLLC D/B/A Beleza Medspa v. Nexstar Broadcast Group, Inc. KXAN-TV And Jody Barr ( 2021 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-19-00484-CV
Dr. Lawrence Broder, M.D. and Round Rock Medical Aesthetics &
Urgent Care PLLC d/b/a Beleza Medspa, Appellants
v.
Nexstar Broadcast Group, Inc.; KXAN-TV; and Jody Barr, Appellees
FROM THE 261ST DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-19-000768, THE HONORABLE CATHERINE MAUZY, JUDGE PRESIDING
MEMORANDUM OPINION
Appellants Dr. Lawrence Broder, M.D. and Round Rock Medical Aesthetics &
Urgent Care PLLC d/b/a Beleza Medspa sued appellees Nexstar Broadcast Group, Inc., KXAN-
TV, and KXAN investigative reporter Jody Barr for defamation per se, defamation per quod,
business disparagement, tortious interference with business relations, and tortious interference
with prospective economic advantage. The lawsuit arose out of reporting about complaints filed
against Broder with the Texas Medical Board (TMB) and the death of one of appellants’ patients.
Appellees responded with a motion to dismiss under the Texas Citizens Participation Act
(TCPA). See former Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. 1 Appellants filed a response
1
This case is subject to the original 2011 version of the TCPA, see Act of May 18, 2011,
82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961-64 (amended by Act of May 17,
and attached several hundred pages of evidence. Both sides filed objections to some of the
evidence. After a hearing on appellees’ objections and their motion to dismiss, the trial court
signed an order dismissing appellants’ claims and sustaining most of appellees’ objections,
striking several documents in their entirety and striking certain statements in other documents.
Several weeks later, the court signed an order awarding appellees $119,752 in attorney’s fees and
$25,000 in sanctions, and appellants filed motions challenging that order. The court held a
hearing on appellants’ motions and vacated its initial award of attorney’s fees. It later held
another hearing on the issue of attorney’s fees and then signed a new order awarding appellees
$113,510 in attorney’s fees and $2,000 in sanctions.
Appellants challenge the trial court’s orders granting appellees’ motion to dismiss
and awarding attorney’s fees in seven issues, asserting that the TCPA does not apply, that the
trial court’s application of the TCPA was constitutionally overbroad, that appellants presented a
prima facie case of each of their claims, and that the attorney’s fee award was improper. We
affirm the trial court’s orders granting the motion to dismiss and awarding attorney’s fees.
STANDARD OF REVIEW AND TCPA FRAMEWORK
We construe the TCPA liberally to effectuate its intent of safeguarding and
encouraging citizens’ constitutional rights to free speech, petition, and association while
protecting the right to file a meritorious lawsuit. ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 898 (Tex. 2017) (per curiam); see former Tex. Civ. Prac. & Rem. Code §§ 27.002,
.011(b). Under the version of the TPCA in place at the time the motion was filed, a party
seeking dismissal had the initial burden of showing that the non-movant’s “legal action is based
2019, 86th Leg., R.S., ch. 378, 2019 Tex. Gen. Laws 684), and we therefore cite to the statutes as
they existed when the suit was filed as “former Tex. Civ. Prac. & Rem. Code § __.”
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on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition,
or right of association.” Former Tex. Civ. Prac. & Rem. Code § 27.003(a). If the movant made
that showing by a preponderance of the evidence, the trial court was required to dismiss the
action unless the non-movant established by clear and specific evidence a prima facie case for
each element of its claim. Id. § 27.005(b), (c); see Coleman, 512 S.W.3d at 898; In re Lipsky,
460 S.W.3d 579, 586 (Tex. 2015) (orig. proceeding). Even if the claimant put forth a prima facie
case, the trial court was still required to dismiss the action if the movant “establishe[d] an
affirmative defense or other grounds on which the moving party is entitled to judgment as a
matter of law.” Former Tex. Civ. Prac. & Rem. Code § 27.005(d). The trial court was to
consider “the pleadings and supporting and opposing affidavits stating the facts on which the
liability or defense is based,” allowing limited relevant discovery on a showing of good cause but
otherwise suspending discovery in the legal action until the motion has been decided. Id.§§ 27.003(c), .006.
We review de novo whether the movant established by a preponderance of the
evidence that the challenged legal action is subject to the TCPA and whether the nonmovant
presented clear and specific evidence establishing a prima facie case for each essential element
of its challenged claims. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.—Austin 2015, no
pet.). The TCPA requires a trial court to award “reasonable attorney’s fees” to a successful
movant. Former Tex. Civ. Prac. & Rem. Code § 27.009(a)(1); Sullivan v. Abraham, 488 S.W.3d
294, 299 (Tex. 2016). The determination of reasonableness “rests within the court’s sound
discretion.” Sullivan, 488 S.W.3d at 299; Hawxhurst v. Austin’s Boat Tours, 550 S.W.3d 220,
232 (Tex. App.—Austin 2018, no pet.).
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SUMMARY OF THE EVIDENCE
This proceeding arises out of the July 2017 death of Caitlin Duvall-Hammer
following plastic surgery performed by Broder at Beleza Medspa and TMB investigations that
eventually led to two complaints filed in the State Office of Administrative Hearings (SOAH).
Docket Number XXX-XX-XXXX-MD was filed at SOAH by TMB in August 2017 and arose out of
Broder’s treatment of a patient in January 2016 and his behavior toward an employee who was
stuck by a used needle during a procedure in May 2015. Docket Number XXX-XX-XXXX-MD was
filed in March 2019 and arose out of his treatment of Caitlin and four other patients. 2
Barr’s news story, aired on KXAN in mid-February 2018 and posted online,
opened with a summary of Caitlin’s decision to use Broder for her cosmetic surgery and her
death four days later. The news report stated that Caitlin’s autopsy report, which took four
months to complete, determined that she “developed a toxic shock like-syndrome for which she
was hospitalized,” that she died four days after her procedure “[d]espite aggressive therapy,” and
that she died “as a result of complications of a cosmetic surgical procedure,” but that the autopsy
report did not “indicate how the infection happened or where it could have come from.”
Barr reported that at the time of the procedure, Broder was under investigation by
TMB for “a separate case from 2016,” which alleged violations of the Texas Medical Practice
2
Our review requires a summary of the evidence presented in support of and in
opposition to appellees’ motion to dismiss, which included: Broder’s affidavit and attachments;
the SOAH proposal for decision entered in SOAH Docket Number XXX-XX-XXXX-MD; an
affidavit by the medspa’s executive vice president; Barr’s affidavit; written and video versions of
the news reports; an affidavit by Laura Duvall, Caitlin’s mother; Broder’s narrative summary of
Caitlin’s medical procedure; Caitlin’s autopsy report and summary; TMB’s first SOAH
complaint filed in Docket Number XXX-XX-XXXX-MD; and TMB’s SOAH complaint filed in
Docket Number XXX-XX-XXXX-MD. Appellants do not challenge the trial court’s ruling
sustaining many of appellees’ objections to appellants’ evidence, and we thus do not include any
reference to the evidence that was stricken by the court.
4
Act (“the Act”), see Tex. Occ. Code §§ 151.001-170.003, and TMB rules, and that Caitlin’s
family did not know of the investigation until KXAN told them about it. Barr stated that
although TMB had “spent 17 months investigating,” “the public had no way to know an
investigation was underway,” and TMB’s complaint against Broder was not made public until
one month after Caitlin died. Barr reported that the complaint was filed in March 2016 by a
doctor whom Broder had fired and largely arose out of a January 2016 liposuction performed by
Broder. After an investigation, Barr reported, TMB staff determined that Broder “failed to
‘maintain an adequate medical record,’ didn’t ‘safeguard against potential complications,’ and
used workers ‘not qualified’ in the operating room.” Barr interviewed the aesthetician who
assisted Broder in the liposuction procedure, who said that the patient was in “more pain than
any other patient that I’ve seen,” that the patient “lost consciousness” and “turned blue,” and that
Broder gave the patient “[m]ore medication.” The aesthetician continued, “That was his
response, just give her some more medication.” Barr noted additional TMB allegations that
Broder had intimidated a witness and the doctor who filed the complaint, had used deceptive
advertising, and had not properly treated a nurse who was stuck with a used needle during
another procedure. Barr stated that he had sought comment from Broder, who declined to
comment other than to say that the complaint “contains numerous misstatements, assuming facts
not in evidence, erroneous conclusions, and taking as truth the comments of former employees
and business partners of [Broder] who were terminated and actively involved in civil lawsuits
against” Broder. Barr also noted that Broder had filed a motion to have TMB’s allegations
related to deceptive advertising and the needlestick dismissed. The report then stated that
KXAN “has confirmed through sources the TMB is now investigating a second complaint
against Broder.”
5
Barr’s report next turned to the TMB complaint process, noting that “[i]t’s not a
quick process” and that the law “provides protection for doctors when complaints are filed, only
publishing a complaint once the TMB investigates and finds a claim of doctor misconduct has
merit.” Barr reported that TMB had received more than 51,000 complaints since 2010, that only
about a quarter of those complaints led to a formal investigation, and that “doctors under a
formal investigation can continue treating patients and performing surgeries without monitoring
or oversight by the State, and leaving the public in the dark.” Barr stated that it takes almost 300
days for a complaint to be closed, generally through a settlement with TMB, and that if a case
goes to SOAH, the process can last another year. Barr quoted TMB’s president as saying that if
TMB believes a doctor is dangerous, “we’re going to act on it immediately,” and that TMB must
balance public safety against the due process owed to doctors. The news report ended with
Caitlin’s family saying that although nothing can “bring Caitlin back,” they were cooperating
with KXAN “for other people. . . . If it helps somebody else, then it’s been worth it.”
In Barr’s affidavit, submitted in support of the motion to dismiss, he averred that
in September 2017, KXAN received a “confidential tip that a young patient had died after a
recent surgery at Beleza Medspa” but did not identify the patient by name or provide any
identifying information, stating only that the doctor “had a pending disciplinary action through”
TMB “for other cases.” Barr also learned the patient’s age and “the date range of death” and
began to investigate through public records, eventually identifying Caitlin as the patient. Barr
interviewed her family members and former Beleza employees and repeatedly sought Broder’s
comments. He also reviewed Caitlin’s autopsy report, a summary of the autopsy findings, and
TMB’s initial complaint filed in SOAH Docket Number XXX-XX-XXXX-MD. Barr noted that
neither Caitlin nor her family knew that Broder had a complaint pending against him when she
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underwent her surgical procedure. Barr also stated that he had learned that TMB had filed
another complaint against Broder in May 2019, including allegations related to Caitlin’s death.
In addition to researching Caitlin’s case, Barr averred, he “performed significant
research into [TMB’s] complaint adjudication process,” conducting interviews and analyzing
five years of complaints and other information “to ascertain how long other medical misconduct
investigations take before they become public.” Barr and KXAN “spent months” on the report,
and each allegation “was thoroughly researched and substantiated through records of official
proceedings, publicly available documents, responses to public information requests, official
documents and interviews.” Barr believed his reporting was “about a highly newsworthy
event”—TMB’s complaint process, “the nearly 300-day period that it takes” to close an average
complaint, “and the fact that the complaints are unavailable to the public while they are
pending.” Barr concluded by saying, “I believed then that the Reports were true, based on what I
believe to be truthful, reliable information.” Based on his research and interviews, he “did not
have any doubt as to the truth of the report at issue.” He concluded by saying, “At the time the
Reports were broadcast and published, I believed in the truth of the statements contained
therein,” and denied harboring any ill will or spite toward Broder or Beleza Medspa.
Caitlin’s mother, Laura Duvall, provided an affidavit stating that she obtained a
copy of Caitlin’s autopsy summary, dated July 28, 2017, which stated, “At autopsy, this woman
had all the signs of sepsis . . . . If she is septic, then an argument could be made that her death is
due to post-op complications of the procedure. I am sure the doctor will dispute that though.”
Caitlin’s autopsy issued several months later, and Laura said it found that Caitlin “was in a
‘[t]oxic shock-line clinical state in [the] days following [the] procedure,” that she had “developed
a toxic shock-like syndrome” within days of the cosmetic procedure; and that she “died as a
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result of complications of a cosmetic surgery procedure.” Laura averred that she and Caitlin
were unaware of any pending complaints against Broder at the time of surgery, that Laura had
since learned that one complaint had been filed “months (and potentially more than a year)”
before Caitlin’s surgery, that she would have begged Caitlin not to have the procedure if she had
known about the allegations in the complaint, and that she was “confident that [Caitlin] would
not have undergone the procedure had she known of the Complaint” against Broder.
The record reflects that at least four complaints were filed with TMB against
Broder between January 2016 and February 2018. One was dismissed prior to an investigation
for lack of specific substantiating evidence; one went to a formal TMB investigation that resulted
in the case being closed with a finding that Broder had not violated the Medical Practices Act;
and two went to formal investigations and led to the filing of TMB’s complaints with SOAH.
TMB’s original SOAH complaint, filed in August 2017 in Docket Number 503-
17-5887-MD, arose out of a complaint filed by Dr. David Dellinger in March 2016. In its
complaint, TMB alleged that “Patient One” was told to take five Ativan before her liposuction
procedure in January 2016. When the patient “began grimacing and complaining that it felt like
the instrument was rubbing against her bones,” Broder gave her “another Ativan and an
unspecified amount of Hydrocodone,” then gave her “an undocumented seventh Ativan” when
she continued to complain of worsening pain. Patient One began to shiver and say she felt cold,
so Broder gave her “an undocumented eighth Ativan” and instructed the assisting aesthetician to
give Patient One “more Tumescent fluid.” The aesthetician told Broder that they were out of the
fluid and had never used so much on a single patient, Broder left the room, and Patient One
“began shivering uncontrollably and turned blue.” The aesthetician rushed out to get Broder,
who “administered an undocumented medication” and soon terminated the procedure. TMB
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alleged that Broder had violated the rules governing medical providers by giving Patient One “an
excessive amount” of Ativan, failing to adequately document the medications administered to
her, abandoning her during the procedure, failing to adequately supervise his “midlevel
providers,” and allowing “an unauthorized third-party in the operating room.” TMB further
alleged that Broder had intimidated the aesthetician by threatening to sue her if she made a
statement. “Patient Two” was an employee of Broder’s who was stuck with a used needle during
a procedure. TMB alleged that Broder lacked or did not follow a post-exposure needlestick
protocol; did not offer Patient Two medical assistance, an incident report, or additional post-
exposure bloodwork after an immediate blood test; and berated her about the incident in a public
area of the spa, thus disclosing her protected health information to patients and other staff
members in violation of HIPAA. 3 TMB sought penalties for Broder’s use of an excessive
amount of Ativan with Patient One, failure to obtain her adequate informed consent, failure to
maintain adequate medical records, and failure to establish and maintain a needlestick procedure.
Two administrative law judges (ALJs) heard TMB’s complaint in SOAH Docket
Number XXX-XX-XXXX-MD in October and November 2018 and issued a Proposal for Decision in
May 2019. The ALJs referenced TMB’s First Amended Complaint, which alleged that Broder
had violated the Act and TMB rules by: doing an inadequate pre-operative evaluation of Patient
One, failing to record his pre-operative findings, and failing to adequately document medications
given to the patient during surgery, her status during the procedure, and the complications she
suffered; and through his disclosure of Patient Two’s medical information when he berated her in
front of staff and patients and his failure to obtain her blood sample for testing, send her to the
3
The Health Insurance Portability and Accountability Act of 1996, Pub. L. No. 104-191,
110 Stat. 1936 (1996).
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hospital, obtain blood tests at several intervals, offer her antiviral drugs, obtain her informed
consent, maintain adequate treatment records, develop a treatment plan, perform an examination
of or obtain a medical history from her, test the blood of the “source patient” on whom the
needle had originally been used, or follow the medspa’s needlestick protocol. The ALJs
discussed the evidence and determined that TMB had not established by a preponderance of the
evidence that Broder had violated the Act or TMB rules.
In its SOAH complaint filed in March 2019 in Docket Number XXX-XX-XXXX-MD,
arising out of a complaint made to TMB in February 2018, TMB accused Broder of misconduct
related to Caitlin, designated “Patient Three,” and four other patients. TMB alleged that Caitlin
died “due to complications” from the liposuction and “fat transfer breast augmentation”
performed by Broder in July 2017. TMB alleged that the day after her procedure, Caitlin
returned to Broder’s clinic complaining of nausea and vomiting. Broder prescribed an anti-
nausea medication and a pain medication instead of Tylenol, but the following day, her father
called and said she was “very sick, lethargic, continuing to suffer from nausea and vomiting, and
had pain radiating through her right breast to her back and right arm.” When Broder examined
her that night, her breasts “were very red, hard, and had accumulated an excessive amount of
watery fluid, but she had normal vital signs and no fever.” TMB explained that necrotizing
fasciitis “usually presents with severe pain, erythema, edema, tightness of tissues, fever, lethargy,
nausea and vomiting” and that Caitlin exhibited “all of these symptoms, except a fever.”
However, TMB alleged, Broder instead diagnosed Caitlin with fat necrosis despite the fact that
fat necrosis “usually does not occur in the immediate post-operative period.” Broder operated
again and removed some fat from one breast, but Caitlin’s mother called later that night to say
Caitlin was vomiting and having pain in her right arm. Broder adjusted Caitlin’s pain medication
10
and told her mother to bring her to the emergency room if she continued to have trouble with
pain and vomiting. The next morning, Caitlin went to the emergency room, where she was
diagnosed with sepsis and an infection and admitted to the intensive care unit. Doctors
“recommended emergency surgery for necrotizing fasciitis” and “conducted a surgical
exploration,” but Caitlin became unstable during surgery. She died about twenty-four hours after
she arrived at the emergency room, and an autopsy found “multiple surgical puncture wounds of
the anterior torso,” which TMB stated were caused by Broder, and that Caitlin “had been in a
toxic shock-like clinical state in the days following” the procedure. TMB alleged that Broder’s
“misdiagnosis of fat necrosis resulted in an unnecessary surgical procedure to remove the
recently transplanted fat and delay in treatment for complications that ultimate[ly] caused”
Caitlin’s death and that because of Broder’s delay, Caitlin “was in severe sepsis and toxic shock
syndrome that was unresponsive to surgery, antibiotics, vasopressors, fluids, and steroids” once
she arrived at the emergency room.
In addition to the allegations related to Caitlin, TMB leveled accusations of
misconduct related to four other patients. TMB alleged that while “Patient One” was under the
influence of several sedatives for a procedure performed in January 2018, Broder obtained her
signature on a consent form for an additional procedure and “had his Staff retrieve Patient One’s
credit card from her purse and run it for approximately $1,000”; TMB alleged that the patient
“has no memory of agreeing to the procedure and charges.” TMB alleged that when “Patient
Two” was treated in July 2016, Broder inadequately documented the procedure, post-procedure
care instructions, and follow-up. It alleged that although “Patient Four” had a “severe adverse
reaction” as a result of a drug interaction during her August 2017 procedure, Broder “abandoned
Patient Four and his Staff to run errands” while the reaction was occurring, texting his staff once
11
to check on the patient. Finally, TMB alleged that “Patient Five” “became unresponsive” when
she returned to Beleza Medspa for post-operative care the day after her January 2018 procedure,
that Broder was not present for most of that time, that nursing staff stabilized the patient with IV
fluids and oxygen, and that the patient was eventually taken by emergency medical services to a
local emergency room. TMB also alleged that Broder had violated applicable standards in his
delegation of prescription-writing authority to several employees; allowed unqualified non-
medical personnel to perform cosmetic procedures and provide training; improperly stored or
disposed of controlled substances and medications; and improperly stored patient medical
records. Finally, TMB alleged that during a time when he lacked a sufficient number of nurses
and under the pretense of interviewing nurse candidates, Broder held “working interviews,”
having the candidates assist him for full days without compensation and without confirming their
credentials and allowing the candidates to observe protected patient information in violation of
HIPAA and without disclosing to the patients that the nurses were interviewees.
In relevant part, Broder’s affidavit included the following statements:
• Broder has been licensed for twenty-four years, has three years of advanced surgical
training, and is board certified in family medicine. He has been performing cosmetic
surgery since 2008 and has operated on more than 3,000 patients. He has a nationally
accredited “office based surgical suite,” and his practice, Beleza Medspa, has four offices
in four cities with more than twenty staff members. Broder hired a doctor to assist him in
2015 but later that year “discovered fraud and theft by the physician.”
• In July 2017, Caitlin “developed a post-operative infection requiring hospitalization,” and
Broder averred that he “went to the hospital and advocated for the hospital staff to
provide rapid diagnosis and treatment.” At the time of Caitlin’s death, Broder “had not
had any patients ever be hospitalized, let alone pass away.”
• On October 2, 2017, Broder received an email from Barr asking for an interview
“regarding a pending ‘News Investigation’ he was conducting regarding” a TMB
complaint filed against Broder at SOAH. “There was no mention of any patients.”
Through his attorney, Broder declined Barr’s request for an interview, and Barr
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responded that he knew the TMB filings “are only accusations at this point” and that his
goal was to include Broder’s side of the story in the reporting.
• At the time he received Barr’s email, Broder “was engaged in Civil litigation with
multiple ex-employees who were terminated from [his] practice for fraud and theft.”
Broder averred, “Coincidentally, these same ex-employees were the complainants in the
SOAH complaint,” and, “Unsurprisingly, no such complaints were made by these
employees prior to [Broder] terminating and then suing them. The majority of these
complaints were dismissed or closed, except one to the TMB.” Broder also said that “[i]n
a further coincidence,” Broder’s deposition—scheduled for the next day—“was
mysteriously cancelled” by opposing counsel “hours before Barr’s email arrived.”
• On the morning of October 6, 2017, as Broder got out of his vehicle at his office, Barr
“violently thrust a microphone into my face. I was shocked and taken aback by his
aggressiveness and I became angry in defense.” Barr yelled Caitlin’s name, and that was
the first time Broder realized Barr knew anything about Caitlin. Because of privacy laws,
Broder could not even acknowledge that Caitlin was his patient, and Broder considered
Barr’s “‘ambush’ a malicious and unethical conduct by Barr, especially given that my
attorney and I had already declined any comment” on the matter. “At the time of the
ambush, there was no way that Barr would have known” Caitlin’s name. However,
Broder averred, Dr. Ned Snyder, the president of a local society that “represent[s] direct
competitors of [Broder’s] practice” and “a major contributor and advertiser at KXAN[,]
had accessed the records from Seton prior to Barr’s public ambush.”
• On November 29, 2017, Barr emailed Broder again, attaching Caitlin’s autopsy report,
which had been finalized a week earlier and which Broder stated was not public record.
Barr told Broder that Caitlin’s case would be part of the news report and again asked
Broder to do an interview to explain his “side of this case.” Broder “became suspicious
on how Barr could have known Caitlin’s name in the first place,” and Broder stated that
“there was no case investigation regarding this matter, so it was odd that Barr wanted to
interview [Broder] regarding a ‘case’ that [Broder] was unaware existed.”
• On January 4, 2018, Broder received a complaint related to Caitlin from TMB. Broder
stated, “[O]ddly, this complaint came after Barr told me I was being investigated. The
only person that is aware of an investigation at the TMB prior to the physician being
notified is the individual that files the actual complaint.” On January 22, Barr told
Broder’s outside media consultant that he was waiting on “one piece of information”
before running his story; two days later, Broder canceled a deposition that was scheduled
for January 30; and within hours, Barr emailed Broder again to ask for an interview.
Broder stated, “It was apparent to me that my cancelled deposition testimony was going
to be used by Barr in his news story.”
• On February 1, 2018, Broder’s attorney sought a presuit deposition of Barr to determine
who provided him with Caitlin’s medical records. Broder claimed that Nexstar’s general
counsel responded and “admitted that they have been given information about the
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disciplinary action involving [Caitlin] but [said] that Barr was about to use public records
to determine the identity of the patient.” 4
• On February 9, 2018, Broder received a letter from TMB stating that it was investigating
Caitlin’s case, and four days later, Nexstar’s general counsel informed Broder that
KXAN was investigating that complaint. Broder said, “Again, the only person that can
access this information is the person who filed the complaint.”
• On February 15 and 16, 2018, during its airing of the Winter Olympics, KXAN ran a
two-night, four-part story during its news broadcasts titled, “Prolonged investigations of
doctors in Texas leave patients in the dark.” Broder averred, “The entire story is solely
about me, my practice, my SOAH complaint and Caitlin.” Broder averred that Barr’s
story was inaccurate in that Caitlin was not in “extreme pain” after the surgery and was
not in pain and showed no signs of a bacterial infection when she was examined at
Broder’s office the following day. He also stated that there was no evidence that he
caused any delay in Caitlin’s treatment.
• On May 16, 2018, Broder’s attorney wrote to appellees, detailing inaccuracies and
allegedly defamatory statements in the story and demanding its retraction. Nexstar
responded that “the source was not bound by HIPAA but refuse[d] to disclose the
source.” KXAN removed the online story soon after it was aired but reposted it about
ninety days later.
• In July 2018, TMB amended its SOAH complaint, “removing all of the serious
allegations regarding the patient as reported in the news story” and “downgrad[ing] the
complaint to just several recordkeeping errors,” but “[i]ncredibly, no retraction or
correction [was] published by” appellees. In November, Broder informed appellees “of
the continuing financial and reputation damage” their story had caused, informing them
of the amended complaint and demanding a retraction. Broder averred that SOAH’s May
31, 2019 decision “completely exonerating [him] of all allegations brought by the TMB.”
• After the story ran in February 2018, Broder said, he was called “murderer” and “unsafe”
on social media and he has “been forced to no longer see patients” and “cannot appear in
public for fear of embarrassment.” He asserted that multiple would-be clients canceled
4
In her response to Broder’s attorney, Nexstar’s general counsel disputed that KXAN
was subject to HIPAA and said that Barr “did not obtain protected health information regarding
‘the patient’ from any third party.” Instead, she asserted, Barr received information that Beleza
Medspa’s owner had a TMB action pending against him and “had a recent young patient pass
away, within a specified 6-day time period.” Barr then “undertook the activities we expect of
our reporters—that is, reviewing publicly available records (e.g., [TMB] records), reviewing
obituaries, requesting information through the Public Information Act, and making outreach to
individuals identified through such searches.” Counsel added that “any personal information
regarding the ‘patient’ which may be included in the report was provided by the ‘patient’s’
mother and/or used with her consent.”
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their scheduled procedures, costing the practice hundreds of thousands of dollars in
losses; several patients “resorted to extortion and blackmail with threats of TMB
complaints and ‘going to the media’ if they were not refunded for procedures”; and the
“instability caused by the story induced fear and uncertainty” in the medspa’s staff,
leading to resignations by “multiple key staff members.” Broder stated that his reputation
has been permanently damaged. Broder also said he was so shaken by Barr’s “ambush”
that he decided to stop coming to his Cedar Park office and still suffers from anxiety
when he arrives at that office. 5
• Broder also alleged that TMB “repeatedly” told Barr that it could have suspended
Broder’s license if it considered him a threat to the public but that Barr’s emails “indicate
that he refused to believe that [Broder] wasn’t a threat to the public”; that Barr’s sources
“consisted of terminated ex-employees and competitors”; that appellees “could not
corroborate any part of their narrative”; that appellees “tack[ed] on” one and a half
minutes about TMB’s process to the seventeen-minute story about Broder in “a desperate
attempt to camouflage their shoddy and malicious work”; that “had the story been about
TMB, KXAN would have reported that there is a process to suspend the license of a
dangerous doctor and TMB chose not to use that process with” Broder; that Caitlin’s
protected health information was “trafficked among ex-employees, competitors, attorneys
and finally KXAN-TV and Barr to be used expressly for their own personal financial gain
and fame”; that every person who “trafficked” Caitlin’s protected health information
committed an illegal act; that Caitlin’s necrotizing fasciitis “was repeatedly misdiagnosed
and improperly treated by hospital staff.”
Attached to Broder’s affidavit were numerous exhibits, including:
• His petition filed in January 2016 against Dr. David Dellinger, the doctor who Broder
fired and who filed a TMB complaint in March 2016, Nicole Dellinger, who was Beleza
Medspa’s practice manager for several months, and their new practice.
• Dellinger’s March 2016 letter to TMB alleging misconduct by Broder related to patient
safety, HIPAA violations, violations of advertising rules, and improper storage of
medical records and TMB’s notification letters to Broder related to that complaint (TMB
File Number 16-4334).
• TMB’s letters notifying Broder that a complaint had been filed in May 2016 (File
Number 16-5538), alleging deceptive advertising and unprofessional conduct, and that
5
Beleza Medspa’s executive vice-president averred similarly, saying that after the report
ran, Beleza had “multiple cancellations” and suffered “a huge loss of business and profits”; that
numerous former patients had demanded refunds, threatening to go to the media if their demands
were not met; that an employee who performed Botox and similar treatments had quit, causing a
loss of revenue; and that the medspa had faced difficulty in hiring new staff.
15
TMB had closed that complaint in December 2016 because there was no evidence to
support the allegations.
• Broder’s response letters to TMB in the various investigations.
• A document summarizing complaints filed with TMB in January 2016 (File Number 16-
2979) by several former medspa employees, including nurse Valerie Calaway, alleging
that aestheticians and nurses were improperly performing procedures and ordering and
administering medications, that medications and medical devices were improperly stored,
that expired medications were being used on patients, that equipment was in disrepair,
that the medspa lacked appropriate arrangements for cleaning contaminated surgical
laundry, that medical charts were improperly stored, and that Broder had responded
inappropriately after a nurse was stuck with a used needle during a procedure, as well as
TMB’s January 2016 letter stating that the complaint was closed for lack of sufficient
specific information to substantiate the allegations.
• Communications between Barr, Nexstar’s general counsel, Broder, and Broder’s
attorneys, including Broder’s attorney’s assertion that Dr. Dellinger and other ex-
employees were “actively engaged in a libel and slander campaign” against Broder, using
TMB “in bad faith,” and Barr’s response that his report was not part of a conspiracy
against Broder and that he had never spoken to Dr. Dellinger.
TRIAL COURT’S APPLICATION OF THE TCPA
We start with appellants’ first argument—that the TCPA does not apply because
their legal action was based not on constitutionally protected free speech but on “illegally
obtained” protected health information that was then improperly broadcast to the general public.
Appellants assert that the record shows that Barr’s investigation began after KXAN received
Caitlin’s protected health information and that “there was no way for the source of the tip to have
known about a deceased patient . . . if the person did not have access to the confidential medical
records.” Furthermore, they contend, the news report itself disclosed Caitlin’s protected health
information in “excruciating[ly] ample detail,” including her name, date of birth, medical
procedures, and cause of death. Because KXAN’s report was based on “illegally obtained”
information, appellants argue, their lawsuit is not subject to the TCPA.
16
In Broder’s affidavit, he alleged that Dr. Ned Snyder, a competitor and a KXAN
contributor and advertiser, had accessed Caitlin’s hospital records and must have “obtain[ed]
them for an improper purpose.” He also questioned how Barr “could have known Caitlin’s
name” and said that it “was odd that Barr wanted to interview [Broder] regarding a ‘case’ that
[Broder] was unaware existed.” Finally, he stated that KXAN “concocted a cover story about
TMB delays” in an attempt to “camouflage their shoddy and malicious” journalism, while
focusing the story on Broder, not on TMB and its processes.
However, Barr stated in his affidavit that he began to investigate Broder and the
TMB complaint process in September 2017, after KXAN received a “confidential tip that a
young patient died after a recent surgery at Beleza Medspa.” He stated that the tip did not give
any identifying information about the patient and alleged that an unrelated “disciplinary action”
was pending against “the physician who performed the procedure.” Barr averred that he then
reviewed publicly available records, including TMB’s records and its SOAH complaint, filed in
August 2017. He eventually determined that Broder was the doctor in question and Caitlin was
the patient and contacted her family and former Beleza employees. Caitlin’s mother cooperated
with Barr’s reporting, stating that she and Caitlin were unaware of the pending TMB complaint
and that she believed Caitlin “would not have undergone the procedure had she known” about it.
Although he implies that Barr was given Caitlin’s protected health information in violation of
HIPAA laws, Broder has not established that fact—and Barr averred to the contrary, insisting
that the tip did not include any protected information—nor has he established that Barr’s
inclusion of some of Caitlin’s health information in the news report was improper or in violation
of HIPAA, an assertion belied by the fact that Caitlin’s family participated in Barr’s
17
investigation and news report. See 45 C.F.R. §§ 164.502(g)(4), .508 (person with authority to act
on behalf of deceased person may authorize disclosure of protected health information).
Even if Broder had established that Barr was improperly given Caitlin’s protected
health information, the TCPA would still apply. The TCPA applies to a legal action “based on,”
“relat[ing] to,” or “in response to” the exercise of the right of free speech, defined as “a
communication made in connection with a matter of public concern.” Former Tex. Civ. Prac. &
Rem. Code §§ 27.001(3), .003(a). “[T]the provision of medical services by a health care
professional constitutes a matter of public concern.” Lippincott v. Whisenhunt, 462 S.W.3d 507,
510 (Tex. 2015). Other than alleging impropriety surrounding the disclosure of Caitlin’s
protected health information, appellants do not challenge whether appellees established by a
preponderance of the evidence that the lawsuit was based on, related to, or in response to
appellees’ right of free speech. And, indeed, the report was about TMB’s complaint against
Broder and about TMB’s complaint process, how long that process takes, and the fact that
patients have no way of knowing about pending TMB complaints until TMB decides to file a
complaint, which are all matters of public concern touching on issues of public safety, health,
community well-being, governmental process, and services provided in the marketplace. See id.;
see also former Tex. Civ. Prac. & Rem. Code § 27.001(7) (defining “matter of public concern”).
The TCPA exempts from its reach certain actions but does not include an
exclusion related to the disclosure of protected health information. See former Tex. Civ. Prac. &
Rem. Code § 27.010. Nor does the TCPA exclude speech that arises out of an improper act
committed not by the person exercising the right of free speech—here Barr and KXAN, who
acted in coordination with Caitlin’s family in reporting some of her protected information—but
18
by someone else—allegedly the tipster. 6 The trial court properly determined that the TCPA
applies to appellants’ lawsuit. We therefore overrule appellants’ first issue on appeal.
Appellants next argue that the trial court’s application of the TCPA was
constitutionally overbroad, noting that the right to sue for defamation is constitutionally
protected and arguing that the dismissal of their suit undermines the intent of the TCPA. They
argue that their lawsuit “is not the frivolous type of suit the TCPA seeks to limit,” that the news
report was “harassing and defamatory” and has caused appellants emotional and financial harm,
and that the report “used improperly obtained [protected health information] to make false
accusations about Dr. Broder’s standard of care.” They argue that the media should not be
allowed to “target an individual and make objectively false and misleading statements” or to
“spew falsities for the purpose of furthering an agenda.”
“[T]he Texas Constitution expressly guarantees the right to bring reputational
torts.” Turner v. KTRK Television, Inc., 38 S.W.3d 103, 117 (Tex. 2000) (citing Tex. Const.
art. I, §§ 8 (person has right to “speak, write or publish his opinions on any subject, being
responsible for abuse of that privilege”), 13 (courts are open to person for injury done to
reputation)). We agree with Broder that a party may not make “objectively false and misleading
statements” or “spew falsities” in an effort to harm another. And, indeed, if a party believes he
has been defamed by another, he may sue for damages, provided he can defend against a TCPA
motion by presenting sufficient clear and specific evidence that would entitle him to recover on
his claims in the absence of proof to the contrary. See Serafine, 466 S.W.3d at 358.
6
Broder may be dismayed at the disclosure of Caitlin’s protected health information, but
it was for Caitlin’s family, who presumably had the authority to act on her behalf or on behalf of
her estate, to determine whether such information should be released, and there is no indication
that they believe Barr overstepped or erred in his inclusion of some of her protected information
in the news report. See 45 C.F.R. § 502(g)(4).
19
Thus, the framework of the TCPA, requiring a claimant to present a prima facie
case for the elements of his claims, allows a party to seek damages for reputational torts, as
guaranteed by the Texas Constitution, while protecting defendants from frivolous claims.
Appellants have not established that the trial court’s application of the TCPA, which simply
required them to establish that their suit is not frivolous, infringed on their right to seek damages
for reputational torts committed by appellees. We overrule appellants’ second issue.
PRIMA FACIE CASE
We next consider whether appellants established by clear and specific evidence a
prima facie case for each element of their claims. See former Tex. Civ. Prac. & Rem. Code
§ 27.005(b), (c); Coleman, 512 S.W.3d at 898; Lipsky, 460 S.W.3d at 586. “Prima facie
evidence is evidence that, until its effect is overcome by other evidence, will suffice as proof of a
fact in issue. In other words, a prima facie case is one that will entitle a party to recover if no
evidence to the contrary is offered by the opposite party.” Serafine, 466 S.W.3d at 358 (cleaned
up). “Bare, baseless opinions do not create fact questions, and neither are they a sufficient
substitute for the clear and specific evidence required to establish a prima facie case under the
TCPA.” Lipsky, 460 S.W.3d at 592; see Serafine, 466 S.W.3d at 358 (“Conclusory statements
are not probative and accordingly will not suffice to establish a prima facie case.”). “[T]he term
‘clear and specific evidence’ refers to the quality of evidence required to establish a prima facie
case, while the term ‘prima facie case’ refers to the amount of evidence required to satisfy the
nonmovant’s minimal factual burden.” Serafine, 466 S.W.3d at 358.
20
Defamation and Business Disparagement
The elements of a defamation claim are “(1) the publication of a false statement of
fact to a third party, (2) that was defamatory concerning the plaintiff, and (3) was made with the
requisite degree of fault.” Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019).
A business-disparagement claim also involves a showing of falsity: the plaintiff must establish
that the defendant published false and disparaging information with malice and without
privilege, causing the plaintiff special damages. Forbes Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 170 (Tex. 2003). “A business disparagement claim is similar in many respects to a
defamation action,” differing in the interests they protect—personal reputation versus economic
interests. Id.[A] private individual who sues a media defendant for defamation over a report
on official proceedings of public concern has the burden of proving that the gist of
the report was not substantially true—that is, that the report was not a fair, true,
and impartial account of the proceedings. That burden is not met with proof that
the report was not a substantially true account of the actual facts outside the
proceedings.
KBMT Operating Co. v. Toledo, 492 S.W.3d 710, 715 (Tex. 2016). In other words, “[t]he media
enjoy a privilege to report on judicial and official proceedings without regard for whether the
information from such proceedings is actually true.” Hall, 579 S.W.3d at 381. 7 The defendant
7
In chapter 73, titled “Libel,” section 73.002, titled “Privileged Matters,” provides:
(a) The publication by a newspaper or other periodical of a matter covered
by this section is privileged and is not a ground for a libel action. This
privilege does not extend to the republication of a matter if it is proved
that the matter was republished with actual malice after it had ceased to be
of public concern.
21
must prove that the media privilege applies, but the plaintiff bears the burden of proving that the
report was false. Id. at 380. “Similarly, a media outlet that accurately reports allegations made
by a third party about matters of public concern can assert the truth as a defense,” 8 and the
plaintiff bears the burden under the TCPA to show the falsity of the reporting. Id.“To not be false, a statement need not be perfectly true as long as it is
substantially true.” Id. at 377 (cleaned up). However, “even if a publication ‘gets the details
right but fails to put them in the proper context and thereby gets the story’s “gist” wrong,’ it may
be liable for defamation.” Id. at 380 (quoting Turner, 38 S.W.3d at 115). In such a case—when
“true statements strung together and accompanied by speculative commentary might wrongly
(b) This section applies to:
(1) a fair, true, and impartial account of [most judicial proceedings,
official proceedings to administer the law, executive or legislative
proceedings, and public meetings dealing with a public purpose];
and
(2) reasonable and fair comment on or criticism of an official act of
a public official or other matter of public concern published for
general information.
Tex. Civ. Prac. & Rem. Code § 73.002(a).
8
Section 73.005, titled, “Truth a Defense,” provides:
(a) The truth of the statement in the publication on which an action for
libel is based is a defense to the action.
(b) In an action brought against a newspaper or other periodical or
broadcaster, the defense described by Subsection (a) applies to an accurate
reporting of allegations made by a third party regarding a matter of public
concern.
Id. § 73.005 (a), (b). Although appellants state that the Texas Supreme Court “specifically
disclaimed” a defense related to the accurate reporting of third-party allegations in Neely v.
Wilson, 418 S.W.3d 52, 64-65 (Tex. 2013), they fail to observe that the legislature has since
added subsection (b), thus shielding media defendants from libel liability for publishing third-
party allegations, see Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 791-92 (Tex. 2019)
(noting that legislature amended section 73.005(b) in 2015).
22
imply that the subject of a publication has committed a crime”—the plaintiff must demonstrate
how the defendant’s statements implied the plaintiff’s guilt. Id. at 380-81; see Turner, 38
S.W.3d at 115 (defamation claim may lie “when discrete facts, literally or substantially true, are
published in such a way that they create a substantially false and defamatory impression by
omitting material facts or juxtaposing facts in a misleading way”). Thus, in suing “based on a
defamatory implication—whether a gist or a discrete implication,” the plaintiff has the burden of
pointing to “additional, affirmative evidence within the publication itself that suggests the
defendant intends or endorses the defamatory inference.” Dallas Morning News, Inc. v. Tatum,
554 S.W.3d 614, 635 (Tex. 2018) (cleaned up). The evidence of intent must be found in the
news report itself, evaluated as a whole rather than by focusing on individual statements. Id.The intent inquiry is objective—the defendant’s actual, in-fact intent is not relevant, and the
plaintiff must show that “the publication indicates by its plain language” an intention to convey
the defamatory meaning. Id. at 635-36.
In the trial court, appellants pointed to several specific statements, which they
asserted were presented “as affirmative, objectively verifiable facts that Dr. Broder could have
been stopped by the TMB, before his unsafe and deficient care of patients caused the death of a
young woman”: “Medical Board delay could have caused Caitlin her life”; “You don’t know
about your doctor until it’s too late”; “Did the [TMB] do enough to protect the general public,
but to protect your daughter specifically,” asked of Laura during her interview; and, “Meanwhile,
under Texas law, Broder is permitted to continue to practice.” Appellants also asserted that the
following statements were factually false and “carefully designed to make the care of the patient
appear deficient and unsafe and that Dr. Broder was undoubtedly the cause of her death”:
23
• Caitlin went to Beleza “to have fat removed from her abdomen and then used to reshape
one of her breasts.” Appellants noted that the procedure was on both breasts and
involved liposuction of five other areas, “indicating that the procedure was less likely the
source of the infection.”
• Caitlin and her mother “were sent home that afternoon with a prescription and [wound
care] instructions.” Appellants noted that Caitlin actually received three prescriptions,
including one for an antibiotic, and that she was seen the next morning, “where she was
doing well.”
• “The next day she complained of severe pain in her arm and shoulder said Laura.”
Appellants asserted that Caitlin “did not complain about arm pain until 48 hours after
procedure.”
• “Despite aggressive therapy at the hospital, ER doctors couldn’t save her life.”
Appellants noted that Caitlin was admitted to hospital and died thirty-six hours later, not
in the emergency room.
• “Around March of 2016, a doctor who was fired by Broder filed a complaint with the
TMB accusing him of violating multiple sections of the state’s Medical Practice Act.”
Appellants noted that the doctor “was fired before he filed complaint in retaliation.”
• Statements about the patient who was the subject of the referenced TMB complaint—
“She lost consciousness. She turned blue, was unresponsive. The patient is awake
during the whole procedure, so nobody should be losing consciousness,” and “[m]ore
pain than any other patient.” Appellants asserted that “many of these statements were not
included in the SOAH complaint and were not identified as such.” With regard to that
same patient, the news story also said, “That patient survived,” and appellants stated that
there was “no indication that the patient’s life was at risk.”
• “Last night we showed you, it can take up to a year to close a case and make doctor
misconduct public.” Appellants argued that because “Dr. Broder was the only ‘case’
mentioned” the night before, the statement led viewers “to believe that his case was
‘closed’ and ‘misconduct’ against Dr. Broder was proven.” Instead, they insisted, “the
case consisted of unsubstantiated allegations that were not proven or even litigated. Yet,
Dr. Broder is directly accused of ‘misconduct.’”
• “Because any of us can be a patient [like Caitlin] who had no idea her doctor was under
investigation before she went under the knife.” Appellants asserted that the story again
linked “the unrelated SOAH investigation” to Caitlin’s death.
In addition to complaining of those specific statements, appellants alleged that
there was no discussion or evidence of “any other delayed investigations,” a fact that shows that
24
“the story was in all regards” about Broder and his patients and “not about TMB ‘delays’ and
other patients.” They further asserted that the news report included “false assertion[s],”
“unsupported by any evidence,” that TMB investigations are ‘prolonged’” and that patients are
“kept in the dark or complaints [are] kept quiet.” Finally, appellants argued that Broder’s license
was never at risk of suspension, so, “[o]bviously, the allegations in Dr. Broder’s TMB complaint
did not involve him being a ‘continuing threat to the public welfare’”; that appellees used
“[b]iased editing” to “create further defamation” by editing “unrelated” statements together in
such a way to make it appear that Caitlin’s mother “was questioning ‘Why?’ the ‘severe pain’,
and implying it was why she died”; and that appellees “conveniently omit[ted]” explanations that
Caitlin’s procedure was on seven areas and that she only developed an infection in one area, that
she was doing fine when seen the morning after the procedure, that she was on antibiotics before
and after the procedure, that Broder surgically intervened when Caitlin reported pain two days
later, and that Broder “spent 30 hours in the hospital trying to save her” and was “the only
physician involved in her case that made the correct diagnosis.”
Appellants’ argument in this Court focuses less on the specific statements made in
appellees’ news story and more on the “gist” of the story, which they argue is that Broder is an
unsafe doctor whose deficient care caused Caitlin’s death. For support, they point to Laura
Duvall being asked whether TMB did enough to protect Caitlin and the general public and the
statements that TMB “could have caused the patient her life,” that a patient does not know about
their doctor “until it’s too late,” that Broder was permitted to continue to practice medicine while
TMB investigated, that a fired doctor filed a complaint against Broder in 2016, that Caitlin was
sent home with a prescription and wound-care instructions, and that she complained of pain the
next day. Appellants argue that the average viewer or reader would have and in fact did
25
conclude that Broder was unsafe and should have been stopped by TMB before Caitlin’s
procedure and subsequent death, a gist that they argue was substantially untrue and defamatory.
The specific statements that appellants discuss as adding up to an untrue gist that
Broder was an unsafe doctor are substantially true, taken from TMB’s August 2017 complaint, or
made by third parties during interviews with appellees: in about March 2016, Dr. Dellinger filed
a TMB complaint accusing Broder of violating the Act; Broder had fired Dellinger; Broder was
allowed to continue practicing while TMB conducted its investigation; TMB’s investigation took
more than a year and resulted in its August 2017 SOAH complaint; Caitlin, whose surgery
occurred before the SOAH complaint was filed, was sent home with prescriptions and wound-
care instructions; 9 Laura stated that Caitlin started complaining of severe pain in her arm and
shoulder the day after surgery; and the allegations that Patient One complained of severe pain,
“turned blue,” and became unresponsive during her 2016 procedure were contained in TMB’s
complaint or made by Ryan Harlan, the aesthetician who assisted in the surgery.
It is true that the news report discussed Caitlin’s death alongside the allegations
made in TMB’s unrelated SOAH complaint, the amount of time it took TMB to investigate and
file the complaint against Broder, and the time involved in the TMB process in general.
However, the report’s statements about Caitlin and TMB’s complaints against Broder are
substantially true—the TMB process as to Dellinger’s complaint did take more than a year to
result in a SOAH complaint. Caitlin’s autopsy did state that she died as a result of complications
from her plastic-surgery procedure. Caitlin did undergo surgery at a time when Dellinger’s
complaint was under investigation and TMB had not yet filed its public SOAH complaint. Her
9
Whether Caitlin was sent home with one or three prescriptions does not weigh on
whether the news story was substantially true.
26
mother did state that Caitlin would not have undergone the procedure if she had known about the
complaint. Further, appellants did not show inaccuracy or falsity in appellees’ reported
information related to the number of complaints filed with TMB, the percentage that lead to
SOAH complaints, and the length of time the investigations take on average. Although Broder
averred that he was not responsible for Caitlin’s death, that statement does not bear on whether
appellees provided a substantially true report about the overall TMB complaint and investigation
process, Broder’s specific TMB complaint, or Caitlin’s death.
The trial court did not err in determining that appellants had not made a prima
facie showing that the gist of the report was materially false or that appellees had a defamatory
intent in making the report. Thus, the trial court properly dismissed appellants’ claims for
defamation and business disparagement. We overrule appellants’ third and fourth issues.
Tortious Interference with a Contract and Tortious Interference with Business
Relationships
“Interference with a contract is tortious only if it is intentional.” Southwestern
Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992). “Justification is an
affirmative defense to tortious interference with contract and tortious interference with
prospective business relations,” and “the justification defense can be based on the exercise of
either (1) one’s own legal rights or (2) a good-faith claim to a colorable legal right, even though
that claim ultimately proves to be mistaken.” Prudential Ins. Co. of Am. v. Financial Rev. Servs.,
Inc., 29 S.W.3d 74, 80 (Tex. 2000); see Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 210
(Tex. 1996) (“Even if a plaintiff establishes the elements of this cause of action, a defendant may
still prevail upon establishing the affirmative defense of justification.”). However, “[t]he scope
of free speech protection does not depend on the legal theory asserted by an inventive plaintiff,”
27
Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 733 (Tex. App.—Houston [14th Dist.]
2013, pet. denied), disapproved on other grounds by Lipsky, 460 S.W.3d 579 (cleaned up), and,
therefore, “[w]hen a non-libel claim is grounded on the same speech giving rise to a libel claim,
a plaintiff must prove the falsity of the alleged libelous speech,” Evans v. Dolcefino, 986 S.W.2d
69, 79 (Tex. App.—Houston [1st Dist.] 1999, no pet.), disapproved on other grounds by Turner,
38 S.W.3d at 115-16. “To hold otherwise would permit litigants to circumvent constitutional
defenses against the tort of libel by pleading torts that do not require falsity or actual malice.” Id.Appellants’ claims for tortious interference with a contract and with business
relationships are grounded in their defamation claim, and appellees established truth as a defense
to the defamation claim. Thus, it follows that the related tort claims must also fall and that the
trial court properly granted appellees’ motion to dismiss appellant’s claims for tortious
interference. See Bird v. W.C.W., 868 S.W.2d 767, 772 n.7 (Tex. 1994) (“it would be ironic if an
individual could avoid all the constitutional restrictions on defamation actions merely by
disguising such claim in negligence terms”); Evans, 986 S.W.2d at 79. 10 We overrule
appellants’ fifth and sixth issues.
10
See also, e.g., Rehak Creative Servs., Inc. v. Witt, 404 S.W.3d 716, 733 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied), disapproved on other grounds by In re Lipsky, 460
S.W.3d 579 (Tex. 2015) First Amendment protections from libel claims also protect defendants
from non-libel claims based on same publication); Laub v. Pesikoff, 979 S.W.2d 686, 691-92
(Tex. App.—Houston [1st Dist.] 1998, pet. denied) (when “essence” of claims for libel and
slander, intentional interference, civil conspiracy, intentional infliction of emotional distress,
negligence, and constitutional violations are injury due to alleged defamation during judicial
proceeding, claims are all barred by judicial-communications privilege); Rogers v. Dallas
Morning News, Inc., 889 S.W.2d 467, 474 (Tex. App.—Dallas 1994, writ denied) (non-libel
claims were grounded on libel claim, and thus, “to recover on the non-libel claims, Rogers had to
prove the falsity of the alleged defamatory articles”).
28
ATTORNEY’S FEE AWARD
In their seventh issue, appellants complain of the trial court’s award of attorney’s
fees. Appellants first assert that the TCPA’s provision requiring the mandatory award of
attorney’s fees is unconstitutional because it violates the open-courts provision of the Texas
Constitution. See Tex. Const. art. I, § 13. However, as appellees note, appellants did not raise
that challenge in the trial court, and thus, appellants’ issue related to the constitutionality of the
TCPA’s mandatory attorney’s fees provision is not preserved for our review. See Southwestern
Elec. Power Co. v. Grant, 73 S.W.3d 211, 222 (Tex. 2002) (“A litigant must raise an open-courts
challenge in the trial court.”); Texas Dep’t of Protective & Reg. Servs. v. Sherry, 46 S.W.3d 857,
861 (Tex. 2001) (“As a rule, a claim, including a constitutional claim, must have been asserted in
the trial court in order to be raised on appeal.” (cleaned up)); Baumgart v. Archer, 581 S.W.3d
819, 831 (Tex. App.—Houston [1st Dist.] 2019, pet. denied) (party “did not raise these
constitutional challenges in the trial court, and therefore they are not preserved for our review”);
Pruski v. American Med. Response, Inc., No. 03-17-00717-CV, 2018 WL 6056936, at *3 (Tex.
App.—Austin Nov. 20, 2018, pet. denied) (mem. op.) (“Because Pruski did not make this
argument to the trial court, she cannot now raise it for the first time on appeal.”). 11
11
Our sister courts in Houston have considered this or similar challenges and have ruled
that the TCPA’s attorney’s fees provision does not violate the Texas Constitution. See Gensetix,
Inc. v. Baylor Coll. of Med., 616 S.W.3d 630, 649-50 (Tex. App.—Houston [14th Dist.] 2020,
pet. dism’d) (mem. op.) (TCPA’s conditional appellate fee awards “do not create an
impermissible pay-to-play barrier to the courts; the awards shift litigation costs after resolution
of a claim”); Memorial Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017 WL
3389645, at *17 (Tex. App.—Houston [1st Dist] Aug. 8, 2017, pet. denied) (mem. op.) (TCPA
includes limits on “the duration of fee accumulation and therefore the amount of fees that might
be imposed on a party under the TCPA, provide the trial court with discretion in determining fee
and sanction awards, and establish a mechanism to shift fees to those who would abuse the
TCPA procedures,” and holding that “the fee-award provision is not unreasonable or arbitrary
when balanced with the statute’s purpose and does not violate the open-courts doctrine”).
29
Appellants also argue that the award itself was unreasonable and not based on
sufficient evidence. A successful movant under the TCPA is entitled to “reasonable attorney’s
fees,” former Tex. Civ. Prac. & Rem. Code § 27.009(a)(1), which are fees that are “not excessive
or extreme, but rather moderate or fair,” Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010).
We review a trial court’s determination of reasonableness for an abuse of discretion. Sullivan,
488 S.W.3d at 299; Hawxhurst, 550 S.W.3d at 232.
The Texas Supreme Court has explained that in “determining the reasonableness
and necessity of attorney’s fees in a fee-shifting situation,” a trial court should employ two steps,
first determining “a base lodestar figure based on reasonable hours worked multiplied by a
reasonable hourly rate,” and then adjusting the base lodestar up or down if relevant factors
require such an adjustment. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d
469, 501 (Tex. 2019). The factors that may require adjustment are: (1) the time and labor
required, the novelty and difficulty of the questions involved, and the skill required to properly
perform the legal service; (2) the likelihood that the subject employment will preclude other
employment by the lawyer; (3) the fee customarily charged in the locality for similar legal
services; (4) the amount involved and the results obtained; (5) the time limitations imposed by
the client or by the circumstances; (6) the nature and length of the professional relationship with
the client; (7) the experience, reputation, and ability of the lawyers performing the services; and
(8) whether the fee is fixed or contingent. Id. at 494. However, “considerations already
incorporated into the base calculation may not be applied to rebut the presumption that the base
calculation reflects reasonable and necessary attorney’s fees.” Id. at 501.
“Sufficient evidence includes, at a minimum, evidence of (1) particular services
performed, (2) who performed those services, (3) approximately when the services were
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performed, (4) the reasonable amount of time required to perform the services, and (5) the
reasonable hourly rate for each person performing such services.” Id. at 502. “General,
conclusory testimony devoid of any real substance will not support a fee award,” and a claimant
seeking attorney’s fees must “prove the attorney’s reasonable hours worked and reasonable rate
by presenting sufficient evidence to support the fee award sought.” Id. at 501-02; see also
Sullivan, 488 S.W.3d at 299 (party seeking attorney’s fees bears burden of proof and must at
minimum establish services performed, who performed them and when, hourly rate, and how
much time was required).
Two weeks after the trial court signed its order granting appellees’ motion to
dismiss, appellees filed an affidavit by attorney Catherine Robb. Robb attached redacted
invoices between February and June 2019, stated that appellees had incurred $124,357 in
attorney’s fees and $6,498 in costs and expenses, and asserted that appellees should recover
conditional appellate attorney’s fees of $40,000 for an appeal to this Court, an additional $10,000
for a petition for review in the Texas Supreme Court, and an additional $50,000 for a granted
petition for review. Six days later, the trial court signed an order awarding appellees $119,752 in
attorney’s fees, costs, and expenses, along with conditional appellate attorney’s fees. Appellants
challenged the award, arguing that it was excessive and unreasonable; that the trial court had not
given appellants “a meaningful opportunity to respond, object, or submit evidence of their own
before trying the issues by affidavit”; and that the trial court had improperly lumped attorney’s
fees, costs, and expenses together into a single award. After a hearing on appellants’ challenge,
the trial court vacated its order, provided deadlines for both sides to submit evidence and
objections, and set the issue of attorney’s fees for a hearing.
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After that second hearing, the trial court signed a new order, awarding appellees
$113,510 in attorney’s fees, costs, and expenses, along with conditional appellate fees ($25,000
for an appeal to this Court, $5,000 for a petition for review filed in the supreme court, and
$30,000 if the supreme court granted the petition). The trial court also signed an order clarifying
the award, explaining that it had determined the reasonable hours and rates billed by each
member of the legal team. The court accepted the team’s hours and rates asserted by Robb
except that it lowered the associate’s hours from 81.9 to 64.9 and his hourly rate from $400 to
$350. The court ruled that appellees’ total reasonable attorney’s fees were $112,217.50 and that
their court costs and expenses were $1,292.50.
Appellants argue that Robb’s affidavit “failed to identify which attorney
conducted how much of the work for each task” and “neglected to identify whether any of the
attorney’s fees were duplicative.” They also assert that the monthly invoices were “too redacted
to identify exactly what tasks were completed or if any of the work was duplicative or
excessive,” and that the invoices did not indicate which specific claim each entry of work was
for. Further, appellants note that “there is no allegation in the affidavit of the amount at stake in
the dispute, which made it impossible for the trial court to award attorney’s fees proportionate to
the amount at stake.” In all, appellants insist, the trial court was “unable to determine reasonable
attorney’s fees based on” Robb’s affidavit and attachments and thus abused its discretion in
making its award, citing Toledo v. KBMT Operating Company, LLC, 581 S.W.3d 324 (Tex.
App.—Beaumont 2019, pet. denied), and asserting that the evidence presented in that case—
found to be wanting by the court of appeals—was similar to the evidence presented here.
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In Toledo, the trial court granted the full $256,689 that KBMT had requested. Id.
at 331. KBMT’s motion for attorney’s fees was supported by 177 pages of bills and an affidavit
prepared by its lead attorney, Michael McCabe, which:
describes his professional experience, his role as lead counsel in the case, and
identifies the other attorneys who participated in defending KBMT from Toledo’s
claim together with each attorney’s and paralegal’s hourly rates. McCabe’s
affidavit describes the course of the litigation. He summarized the firm’s invoices
by date and the total attorney’s fees billed by date of invoice. In his affidavit,
McCabe states the fees charged to KBMT are the usual and customary fees for the
work the attorneys completed. He also stated the fees were reasonable and
necessary for the case.
Id. at 328. In determining that the award was an abuse of discretion, the court of appeals stated
that McCabe’s testimony about the hours worked by the legal team was “rather conclusory” and
observed that the billing records indicated that “many attorneys work[ed] on the case, each
billing many hours to prepare for what appear from the descriptions to constitute work on the
same documents and briefs,” and that McCabe did not adequately explain “why the attorneys
who billed KBMT for working on the case were not needlessly duplicating and revising each
other’s work.” Id. at 331. The court also stated that the trial court had “failed to establish the
amount at stake in the dispute”—“whether Toledo was suing KBMT for ten thousand dollars or
one million dollars”—and that without that information, “a trial court may mistakenly award fees
that are disproportionate to the amount at stake.” Id. at 331-32. The court observed that the case
did not involve “much discovery” or go to trial—instead, the attorneys’ work “revolved around a
motion to dismiss and two appeals,” and the issues involved were not matters of first impression
but simply required “the application of existing well-settled law” to the facts. Id. at 332. The
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court concluded that the trial court had not applied the lodestar method properly and had abused
its discretion in making its award of attorney’s fees. Id. at 333.
Robb averred that she had spent 123 hours working on the case, that a partner at
her firm had performed 43.6 hours of work, that an associate had performed 81.9 hours of work,
and that a paralegal had performed 26.7 hours of work; she also provided each team member’s
hourly rate—$475 for Robb, $575 for the partner, $400 for the associate, and $225 for the
paralegal. Robb stated that she had considered the factors set out in Rohrmoos Venture, 578
S.W.3d at 494, and included discussions of each factor. Robb described the tasks performed by
the lawyers and paralegal—drafting correspondence; writing and reviewing pleadings, briefs,
motions, responses, and other filings; investigating and evaluating appellants’ claims and
appellees’ defenses; researching “various issues raised in this matter,” including appellants,
TMB procedures, and the “rapidly evolving area” of the TCPA; and preparing for and attending
hearings and arguments. Robb also listed the hours the legal team as a whole spent on various
tasks—for example, more than forty hours reviewing and analyzing the complaint and preparing
the answer, more than one hundred hours preparing appellees’ motion to dismiss, almost forty
hours preparing the motion to strike, and about forty hours preparing for hearings.
As for the difficulty or complexity of the work, Robb stated that appellants’
petition was more than forty pages long, contained multiple causes of action, and “failed to
clearly articulate the complained-of statements or the reasons why such statements were
allegedly false and defamatory,” meaning appellees’ legal team had “to spend considerable time
and resources attempting to respond to the vague and unclear allegations and to attempt to ensure
they were addressing every possible basis for claimed relief.” In addition, she said, appellants’
“multiple (and voluminous)” filings leading up to the TCPA hearing—including an “over nine-
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hundred-page” response and an untimely motion for continuance—“significantly increased”
appellees’ fees, stating that the time required to analyze and respond and object to appellants’
TCPA evidence cost about $15,000 in additional attorney’s fees and that appellees’ response to
appellants’ “last-minute motion for discovery and for continuance” cost another $2,000.
Robb stated that the rates charged to appellees were “comparable to or lower than
rates charged by legal professionals with similar levels of experience at similar law firms in the
Central Texas area, including Travis County, for highly specialized First Amendment work such
as the work performed for the Defendants in this case.” She concluded that in her professional
opinion, appellees should be awarded a total of $124,357 in attorney’s fees, $6,498 in costs and
expenses, and conditional appellate attorney’s fees of $40,000 for an appeal to this Court, an
additional $10,000 for a petition for review in the Texas Supreme Court, and an additional
$50,000 for a granted petition for review. Robb attached to her affidavit appellees’ monthly
invoices from February through June 2019. Those statements list the lawyer or paralegal who
performed the work, the date of the work, the amount of time spent, and a general description of
the work performed (with certain details redacted).
Although appellants insist that this case is akin to the facts presented in Toledo, a
comparison of that case and the record here does not bear that out. This case involved an
original petition that was more than forty pages long; appellants’ twenty-page answer and special
exceptions; a forty-page motion to dismiss, which was answered with a more than one-hundred-
page response and hundreds of pages of attachments; dueling objections to the TCPA evidence;
and various other motions and hearings. Robb’s affidavit is not conclusory. See Toledo, 581
S.W.3d at 331. The trial court did not simply award the full amount sought by appellants and
35
instead held two hearings related to attorney’s fees, vacated its initial order, and signed a new
order, lowering the attorney’s fee award by about $6,000 to $113,510. See id. at 330.
Unlike Toledo, it is not clear from the invoices that the attorneys were performing
duplicative work. See id. at 331. The invoices are redacted, but not so heavily that they cannot
be looked to as verification of the kind of work performed, the legal professional who performed
it, and the amount of time it took. And although the invoices do reflect that the associate spent
considerable hours drafting certain pleadings that were then reviewed and reworked by the more
senior attorneys, the trial court struck seventeen hours of the associate’s billed time and lowered
his recoverable rate to $350.
In addition, Robb averred that appellants had employed tactics that increased the
time required to be spent, filing objectionable and inadmissible evidence, an untimely motion for
continuance, a “last minute Motion for Discovery,” and “voluminous” filings. The record shows
that appellants filed their TCPA response and accompanying hundreds of pages of evidence five
days before the hearing on the motion to dismiss (and two months after appellees filed their
motion to dismiss). 12 On that same day, appellants also filed a motion for continuance and for
additional discovery, see former Tex. Civ. Prac. & Rem. Code § 27.006(b) (“On a motion by a
party or on the court’s own motion and on a showing of good cause, the court may allow
specified and limited discovery relevant to the motion.”), leading the trial court to ask at the
hearing why appellants had waited until mere days before the hearing to seek to depose Barr.
12
Appellees then filed objections to multiple items of that evidence, the majority of
which were granted by the trial court.
36
It is true that appellants’ pleadings do not specify a damages amount, 13 but they
sought compensatory damages, punitive damages, and damages for loss of business, lost wages,
and mental anguish. They also filed an affidavit alleging that an employee who had brought in
over $800,000 in annual revenue had quit and could not be replaced, that Broder had generated
about $170,000 a month before the story ran but was no longer generating revenue, and that
cancelations after the story ran led to reduced profits of over $10,000 a month—those alleged
losses alone would have amounted to approximately $4,000,000 from February 2018, when the
story ran, through the summer of 2019, when the trial court issued its dismissal order and its first
order on attorney’s fees. It is fair to assume that the overall damages asserted by appellants,
including punitive and mental-anguish damages, would be considerably higher. And, because
the trial court dismissed all of appellants’ claims, a decision we have upheld, the fact that
appellees’ evidence on attorney’s fees did not specify exactly what claim was being worked on at
any given time does not require reversal of the overall award.
Considering the entire record and the law on attorney’s fees as set out by the
Texas Supreme Court, see Rohrmoos Venture, 578 S.W.3d at 494, we cannot conclude that the
trial court abused its discretion in its award of attorney’s fees. We therefore overrule appellants’
seventh issue.
13
Indeed, appellees filed special exceptions complaining of that deficit.
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CONCLUSION
We have overruled each of appellants’ issues. We therefore affirm the trial
court’s orders dismissing appellants’ claims under the TCPA and awarding attorney’s fees to
appellees.
__________________________________________
Darlene Byrne, Chief Justice
Before Chief Justice Byrne, Justices Baker and Smith
Affirmed
Filed: June 4, 2021
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