Carolyn Sasano, PhD. v. Kirsi Niemela-Waller, PhD. ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00378-CV
___________________________
CAROLYN SASANO, PHD., Appellant
V.
KIRSI NIEMELA-WALLER, PHD., Appellee
On Appeal from County Court at Law No. 1
Tarrant County, Texas
Trial Court No. 2020-004610-1
Before Sudderth, C.J.; Wallach and Walker, JJ.
Memorandum Opinion by Justice Walker
MEMORANDUM OPINION
Appellant Carolyn Sasano asks us to reverse the trial court’s order denying her
motion to dismiss appellee Kirsi Niemela-Waller’s defamation suit under the Texas
Citizens Participation Act (the TCPA). Sasano primarily argues that Waller’s suit
should have been dismissed because the TCPA applies and because Waller failed to
produce clear and specific evidence of a prima facie defamation case. We conclude
that the TCPA does not apply to Waller’s suit because it is not based on or related to
Sasano’s exercise of the right to free speech. Accordingly, we affirm the trial court’s
denial. See Tex. R. App. P. 43.2(a).
I. BACKGROUND
A. FACTS LEADING TO DEFAMATION SUIT
Sasano and Waller are both licensed psychologists. In 2013, Waller filed a
complaint with the Texas State Board of Examiners of Psychologists regarding
“observed deficiencies in [Sasano’s] psychological evaluations and unethical conduct.”
It was unclear whether the complaint was against Sasano or Sasano’s “supervisee.” In
any event, the Board sanctioned Sasano.
Six years later in early December 2019, Waller discovered that Sasano had been
posting negative reviews of Waller on patient-rating sites such as RateMDs, Vitals,
and Google. Some of the Google reviews were expressly attributed to Sasano; the
remainder of the reviews were anonymous but used similar language and ratings as in
Sasano’s reviews. Waller suspected that the anonymous negative reviews were “in
2
retaliation for the Board Complaint.” Waller contacted the sites, stating that she
believed Sasano was falsely posing as a patient in order to post negative reviews.
Vitals removed seventeen violative reviews, and RateMDs removed four. Google
removed an unspecified number of reviews but left one that reflected a “one-star
rating” for Waller, which Waller averred was “fake.” The removals were based on
unspecified violations of the sites’ terms of use. Waller’s rating on Vitals went from
“poor to excellent” after the removals.
On December 28, 2019, Waller directly contacted Sasano and asked that she
remove any reviews that she had posted while “impersonating being a client.” Sasano
contacted two “reputation repair services,” which determined that the only negative
review authored by Sasano that remained posted was the single one-star review on
Google. Sasano called Waller and left two voice messages informing her that Sasano’s
one-star Google review, which Sasano had written under her own name, was the only
remaining objectionable review and admitting that she had posted patient reviews.
Sasano asserted that Waller never responded.
Two months later on February 27, 2020, Waller sent Sasano a formal notice to
correct, clarify, or retract her statements. See Tex. Civ. Prac. & Rem. Code Ann.
§ 73.055. After Waller believed Sasano failed to do so, she filed a defamation suit
against Sasano on August 4, 2020, alleging libel per se and libel per quod. Waller’s
allegations were limited to the anonymous “fake patient reviews” and did not
complain of the Google reviews that Sasano had posted under her own name. She
3
alleged that Sasano “repeatedly posed as one of [Waller’s] patients when she was not
and maliciously authored numerous fake and negative reviews with intent to adversely
impact [Waller’s] online rating and to harm her financially.”
B. MOTION TO DISMISS
Sasano moved to dismiss Waller’s claims under the TCPA, arguing that Waller’s
suit was impermissibly based on or related to Sasano’s exercise of the First
Amendment right to free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003(a).
She further asserted that Waller had failed to establish a prima facie case for each
element of her defamation claim.
Waller responded that Sasano’s actions did not implicate her First Amendment
rights, rendering the TCPA inapplicable. To support her prima facie case of
defamation, Waller relied on her affidavit averments and on the content of Sasano’s
voice messages. In her affidavit, Waller included “true and correct transcriptions” of
these messages:
January 15, 2020 at 5:36 pm
‘This is Carolyn Sasano. I got your letter and I will remove all of the
reviews from the sites. I appreciate the letter and I apologize. Thank
you.’
January 16, 2020 at 9:35 am
‘Hi Kirsi. It is Carolyn Sasano. I contacted a professional service so I
can expedite the reviews. They found four. That’s what I had thought I
had done was four. Nothing associated with my name but I am going to
assume responsibility for those four. But if there is another one that
comes to your attention with my name, just let me know. They are
going to expedite it, they give it 30 days. If you have questions, just call
me back . . . . Hoping for the best as well.’
4
Waller also relied on “true and correct” copies of the four anonymous RateMDs
reviews, which Waller alleged Sasano had posted, that rated Waller as low as “1.0” and
seemed to comment on the quality of her healthcare services:
• “[U]nprofessional”;
• “Misinformed. Hysterical. Un professional [sic]. Insidious. Blame
oriented”;
• “She gave me the wrong informer nation [sic] which affected my ability to
trust professionals”; and
• “Confusing advice about my situation. Seemed irritated.”
Sasano filed a motion to strike Waller’s affidavit the morning of the trial court’s
hearing on the motion to dismiss. She contended that the affidavit impermissibly
relied on “unsubstantiated opinions, hearsay, speculation, and conclusory
statement[s].” After a nonevidentary hearing, the trial court denied Sasano’s motion
to dismiss. See id. § 27.005. The record does not reflect that the trial court considered
or ruled on the motion to strike. Indeed, Sasano admits in her brief that it was “not
heard by the trial court.”
In her interlocutory appeal from the denial, Sasano argues that the trial court
erred by denying her dismissal motion and by failing to strike Waller’s affidavit. See id.
§ 51.014(a)(12).
5
II. MOTION TO STRIKE
Sasano asserts that the trial court erred by implicitly denying her motion to
strike Waller’s affidavit because it was not based on her personal knowledge,
contained inadmissible hearsay, and was conclusory. Our jurisdiction over this
interlocutory appeal is specifically limited to a review of the trial court’s order denying
Sasano’s TCPA motion to dismiss. See id. We may not review the trial court’s action
or inaction on Sasano’s evidentiary objections. See Ray v. Fikes, No. 02-19-00232-CV,
2019 WL 6606170, at *2 (Tex. App.—Fort Worth Dec. 5, 2019, pet. denied) (mem.
op.); see also Round Table Physicians Grp., PLLC v. Kilgore, 607 S.W.3d 878, 888 (Tex.
App.—Houston [14th Dist.] 2020, pet. denied). Accordingly, we decline to address
this issue.
III. THE TCPA
A. LEGAL FRAMEWORK
The TCPA has two purposes: protecting specifically defined constitutional
rights to the full extent of the law while, “at the same time,” protecting the right to file
meritorious lawsuits for demonstrable injury. Tex. Civ. Prac. & Rem. Code Ann.
§ 27.002; see In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015) (orig. proceeding); Smith v.
Crestview NuV, LLC, 565 S.W.3d 793, 797 (Tex. App.—Fort Worth 2018, pet.
denied). Even though we must construe the TCPA liberally, our construction must
“effectuate” these purposes. Tex. Civ. Prac. & Rem. Code Ann. § 27.011(b).
6
A defendant seeking the protection of the TCPA must initially demonstrate
that the legal action is based on or is in response to the defendant’s exercise of the
right to free speech, to petition, or of association.1 See id. § 27.005(b). If the movant
does so, the burden shifts to the nonmovant to produce clear and specific evidence of
a prima facie case for each element of each asserted claim. See id. § 27.005(c). If the
nonmovant meets her burden, the movant may still be entitled to dismissal if she
establishes an affirmative defense or other ground on which she is entitled to
judgment as a matter of law.2 See id. § 27.005(d).
We review the trial court’s interpretation of this statutory framework de novo,
focusing on the enacted language of the applicable provisions. See S & S Emergency
Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018); Youngkin v. Hines,
546 S.W.3d 675, 680 (Tex. 2018). In our de novo review, we must consider the
pleadings, any evidence that a court could consider on summary judgment, and any
submitted affidavits stating the facts on which liability or a defense is based; however,
Waller’s pleadings are “the best and all-sufficient” evidence of the nature of her claims
1
Previously, the TCPA provided that the movant’s initial burden was by a
preponderance of the evidence; however, this evidentiary requirement was removed in
2019 and does not apply here. Act of May 21, 2011, 82nd Leg., R.S., ch. 341, § 2, sec.
27.005(b), 2011 Tex. Sess. Law Serv. 960, 962 (amended 2019).
2
Again, the Legislature removed the preponderance standard from this step of
the TCPA test; thus, it does not apply in this case. See Act of May 24, 2013, 83rd Leg.,
R.S., ch. 1042, § 2, sec. 27.005(d), 2013 Tex. Sess. Law Serv. 2501, 2501 (amended
2019).
7
against Sasano. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (quoting Stockyards
Nat’l Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. [Comm’n Op.] 1936)); see Tex. Civ.
Prac. & Rem. Code Ann. § 27.006(a).
B. APPLICATION OF FRAMEWORK
We first determine whether Sasano demonstrated that Waller’s libel claims as
pleaded are subject to the TCPA. See Smith, 565 S.W.3d at 797. Again, the TCPA
applies to a legal action that is based on or is in response to the party’s exercise of the
right of free speech.3 See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)(1)(A). The
exercise of free speech is defined as “a communication made in connection with a
matter of public concern.” Id. § 27.001(3). A matter of public concern, in turn, is
defined as a statement or activity regarding (1) “a public official, public figure, or
other person who has drawn substantial public attention due to the person’s official
acts, fame, notoriety, or celebrity”; (2) “a matter of political, social, or other interest to
the community”; or (3) “a subject of concern to the public.” Id. § 27.001(7). To
determine whether a statement or activity is a matter of public concern, we look to its
“content, form, and context . . . as revealed by the whole record.” Connick v. Myers,
3
Although Sasano mentioned in her motion to dismiss that the TCPA also
applies to protect the rights to petition and to associate, she raised no cogent
argument in the trial court specifically directed to those First Amendment rights and
solely argues on appeal her right to free speech. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(b)(1)(B)–(C). We will likewise limit our review to Sasano’s free-speech
rights.
8
461 U.S. 138, 147–48, 103 S. Ct. 1684, 1690 (1983); see also Brady v. Klentzman,
515 S.W.3d 878, 884 (Tex. 2017).
In her motion to dismiss, Sasano relied on Waller’s petition allegations and
argued that the challenged online reviews were communications related to a matter of
public concern, triggering the TCPA protections. Waller had alleged that Sasano
posted “at least 23 fraudulent patient reviews” while posing as actual, anonymous
patients. According to Waller, Sasano had posted the negative reviews to misleadingly
inform Waller’s prospective patients of the nature of Waller’s practice.
At first blush, the content of Sasano’s fake patient ratings seems to involve a
matter of public concern—reviewing Waller’s healthcare services. See, e.g., Lippincott v.
Whisenhunt, 462 S.W.3d 507, 509–10 (Tex. 2015); Morrison v. Profanchik, 578 S.W.3d
676, 681–82 (Tex. App.—Austin 2019, no pet.). But Sasano posed as a patient of
Waller’s when she posted the negative reviews. Indeed, Sasano had to affirmatively
(and falsely) verify that she was an actual patient of Waller’s before posting on the
rating sites about Waller’s healthcare services. Sasano has never asserted that she was
ever an actual patient of Waller’s. Thus, Sasano was not reviewing Waller’s healthcare
services. She was airing her personal dispute with Waller under the pretext of a
patient review. By viewing the posts through this prism and as revealed by the whole
record, Sasano’s negative reviews were not made in connection with a matter of
public concern. See Connick, 461 U.S. at 148 & n.8, 103 S. Ct. at 1690–91 & n.8;
Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 135–37 (Tex.
9
2019); Brown v. Univ. of Tex. Health Ctr. at Tyler, 957 S.W.2d 911, 917–18 (Tex. App.—
Tyler 1997, no pet.); see also Teachers Fed. Credit Union v. Esquivel, 621 S.W.3d 786, 799
(Tex. App.—El Paso 2021, no pet.); accord Hesse v. Bd. of Educ. of Twp. High Sch. Dist.
No. 211, Cook Cnty., Ill., 848 F.2d 748, 752 (7th Cir. 1988); Curtis v. Davidson,
No. 78157, 2020 WL 3604040, at *1 (Nev. July 1, 2020). Thus, Waller’s suit is not
based on or in response to Sasano’s exercise of the right to free speech, and the
TCPA does not apply. We overrule Sasano’s issues directed to the applicability of the
TCPA. We need not address Sasano’s remaining issues or the second and third steps
of the TCPA analysis. See Tex. R. App. P. 47.1.
IV. CONCLUSION
Sasano failed to demonstrate the applicability of the TCPA to Waller’s suit
against her, which was not based on or in response to Sasano’s exercise of the right to
free speech. Accordingly, the trial court did not err by denying Sasano’s motion to
dismiss under the TCPA, and we affirm the denial.
/s/ Brian Walker
Brian Walker
Justice
Delivered: August 19, 2021
10