Warren Whisenhunt v. Matthew Lippincott and Creg Parks

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00051-CV
WARREN WHISENHUNT, Appellant
V.
MATTHEW LIPPINCOTT AND CREG PARKS, Appellees
On Appeal from the County Court at Law
Hopkins County, Texas
Trial Court No. CV41303
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
OPINION
Warren Whisenhunt sued Matthew Lippincott and Creg Parks for defamation, tortious
interference with existing business relationships, tortious interference with prospective business
relationships, and civil conspiracy. Lippincott and Parks sought dismissal of these claims
pursuant to the recently-enacted Texas Citizens Participation Act (TCPA), also known as the
Anti-SLAPP 1 statute, which is contained in Chapter 27 of the Texas Civil Practice and Remedies
Code. The TCPA is designed to prevent plaintiffs from bringing frivolous lawsuits based on an
exercise of free speech. It provides for a pre-discovery dismissal mechanism that requires a
plaintiff to make a prima facie case on each claim by “clear and specific evidence” to avoid
dismissal of the suit and the imposition of attorney’s fees and sanctions. Applying the TCPA,
the trial court dismissed all of Whisenhunt’s claims, except for his claim for defamation; in
addition, attorney’s fees were awarded to Lippincott and Parks. Because we conclude that the
TCPA did not apply to Whisenhunt’s suit (this being an issue dispositive of the points of error
raised by both parties), we reverse the trial court’s judgment and remand the case to the trial
court for further proceedings.
I. Facts Giving Rise to a Private Dispute
Whisenhunt is a Certified Registered Nurse Anesthetist who is a member and Vice
President of SafeNET Anesthesia Services, P.L.LC. (“SafeNET”). SafeNET became “an
independent contractor and exclusive provider of anesthesiology services for a company called
1
“SLAPP” stands for Strategic Lawsuits Against Public Participation. See Rehak Creative Servs., Inc. v. Witt, 404
S.W.3d 716, 719 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
2
First Surgery Suites, LLC (‘FSS’).” Whisenhunt is also a partner in FSS and owns
approximately five percent of that company.
In May 2010, Lippincott was hired as an administrator for FSS and immediately
suggested that his wife, who was an anesthesiologist, should work at FSS despite the exclusive
contract with SafeNET which remained effective for a set term. FSS hired Parks and his
company, Alliance Managed Healthcare, L.L.C. (“AMH”), in January 2011 to administer the
business of FSS. Parks worked under Lippincott’s direction, and “the two began jointly
managing the daily operations and administration of FSS.”
Whisenhunt’s petition alleged that Lippincott was an employee or partner of AMH and
that “[s]hortly after Parks’ assumption of the position, both Defendants proposed replacing
SafeNET with another anesthesiology provider at FSS,” which Whisenhunt characterized as “an
anticipated breach of the companies’ exclusive anesthesia services contract.” In May 2011,
Parks and Lippincott allegedly contacted third parties and interviewed alternative providers of
anesthesia services, “pressuring Whisenhunt to alter the exclusivity provisions of the contract
with FSS.” The petition claimed that Parks told members of FSS and three other parties that
Whisenhunt had been responsible for the loss of surgical patients at FSS.
Parks was terminated by FSS March 28, 2012, as a result of the FSS partners’ decision
that he, according to Whisenhunt’s petition, had “grossly mismanaged collections as well as
other acts of incompetence.” Whisenhunt’s petition claimed that Parks and Lippincott continued
publishing disparaging comments about Whisenhunt to others interested in conducting business
3
with him even after Parks’ termination, including charges that Whisenhunt had sexually harassed
the facility’s nurses, had engaged in fraudulent behavior, was unavailable for surgeries, and was
incompetent as an anesthetist. Attached to Whisenhunt’s petititon were internal emails
Lippincott had sent in May 2012 that contained the following language:
Most recently multiple departing employees have made the following statements
to me, and I am under the impression that they have filed reports to this effect
with Board of Nursing and other regulatory groups, but I have no idea how to
confirm that. Also, I have no idea if these are to be treated as unsubstantiated
claims from individuals, or if there are obligations for FSS to handle them in a
certain way:
• SafeNet owner representing self to be a physician - witness
statement only.
• Continued violation of sterile protocol policy - witness statement
only.
• SafeNet owner endangering patients for personal financial gain by
ordering staff to proceed with cases when during pre op it is
discovered that patients have eaten recently or have cardiac issues
that should be assessed first. - witness statement only.
• Obstruction of reporting processes and corrective action - witness
statements
• Reports of harassment going undocumented. - witness statements
Other reports on file, some or all of which may have been submitted to the Board
of Nursing:
Incident reporting form #00001
States that falsification of scrub tech record on 11/2/2010 and 12/17/2010 was at
the direction of Administrator and Director of Nursing Warren Whisenhunt, (not
sure if Warren still had the DoN[2] title at this time but the report describes him as
such). States that Maria and Leigh Ann Simpson were instructed to do this by
Warren. Report prepared by Maria and signed by Maria, Leigh Ann, Josh Green
and Tina Bullard. It is not specifically stated when Tina learned of this, and who
told her about it.
2
From the context, it appears that the acronym “DoN,” as used here, stands for “Director of Nursing.”
4
Incident reporting form #00004
States that on 2/3/2011 Warren left before a 1 year old child had met discharge
criteria. It was prepared by Leigh Ann and signed by Maria and Janet.
Incident reporting form #00005
States that on 3/31/2011 Warren failed to provide adequate coverage for pediatric
cases. It was prepared and signed by Maria.
Incident reporting form #00006
States that Warren placed an IV when Tina was supposed to do so, in addition to
administering a different narcotic than was ordered prior to pre-op or patient
consent being completed. It was prepared by Leigh Ann and is signed by Leigh
Ann and Tina.
Other reports for which there are some records such as written statements and/or
presumably Board of Nursing complaint records:
• Witnesses supported reports of workplace sexual harassment and
unwanted physical contact by a superior and attempts to make
inappropriate contact with employee outside of the workplace. -
multiple witness statements, emails, etc.
• Reports of collecting cash and checks from patients and ordering
employees not to make receipts or other records were witnessed
and reported by multiple employees, several of which are still
employed.
• Participation in allowing the hiring of an employee ineligible for
employment due to criminal record.
Issues reported and documented by staff that the DoN is responsible for
preventing. Scans of chart, log and other documents have been provided and can
be made available:
• 2 reports of wrong physician name on consent.
• Reports of patient arm bands not being used.
• Required confirmation from DoN of completion of patient order and chart
review, etc. not provided as required by policy.
• Chart status, case detail, etc. not recorded anywhere less than 24 hours
before case is scheduled to begin.
• Failure to comply with DoN chart & case review/“Check off” requirement
for all cases.
5
• Cscope patient who was fed when he should not have been preoperatively,
causing him to become ill. Reported by third party medical staff.
• 2 hour wait by patient in pre-op with no one coming to check on her.
(hand written report), when reported to FSS owners DoN and
Administrator took action making it very difficult for any incidents like
this to be identified and reported to the Medical Executive Board, QAPI or
other entities.
• Pre-initialing central scheduling sheets before patient and other data had
been received, reviewed, etc.
....
Some of the supporting documents available include:
2 reports of wrong physician name on consent. Example shows Dr. Hester
referenced at the top of the page and Dr. Hackbarth (the physician providing the
treatment) at the bottom.
Scan # 102313
Scan # 102303
Reports of patient arm bands not being used.
Scan # 102239
Required confirmation from DoN of patient order review, completion, etc. not
provided as required by policy. Patient case scheduled without these steps
completed.
Scan # 155528
Chart status, case detail, etc. not recorded anywhere less than 24 hours before case
begins - and several days after cases had been scheduled. In this example there
was none of the required data available as of 4/16 for 6 cases that took place on
4/17.
Scan # 155341
Failure to comply with DoN chart & case review/“Check off” requirement for all
cases, prior to cases being scheduled.
Scan # 155441
Scan # 155152
6
Following attachment was sent after the cases listed were performed (showing
that the documentation was still incomplete):
Scan # 155252, 123409, 123458, 123545, 123649, 123718, 123328, 123344
Despite having nearly 8 months to complete the work, little to nothing has been
completed for infection control programs and other survey preparedness
activities.[3]
Whisenhunt filed suit November 16, 2012, against Lippincott and Parks for defamation,
tortious interference with existing and prospective business relationships, and conspiracy to
interfere in business relationships. 4 Whisenhunt complained that the various unsavory
statements about him were untrue. To partially show the untruthfulness of the statements,
Whisenhunt produced an affidavit from Gary Boyd, a physician and the Medical Director of
FSS, stating that FSS received no formal or informal complaints against Whisenhunt until after
Parks was fired and that FSS had terminated its contractual relationships with AMH. Boyd
stated that CSS was “very happy with the quality of the nurse anesthesia services that have been
provided by [SafeNet] [and] Whisenhunt” and described Whisenhunt as “very professional.”
Lippincott and Parks moved to dismiss the suit January 13, 2013, interposing the TCPA
as a bar to Whisenhunt’s claims. The filing of such a claim abates any discovery until the issue
of its applicability is resolved.
3
Whisenhunt also alleged that Parks and Lippinscott filed a false allegation against him with the Texas State Board
of Nursing. This allegation was denied.
4
Lippincott and Parks’ answer to the suit invoked the TCPA and claimed that the communications were privileged,
the defamation claim was barred by the statute of limitations, and that Whisenhunt was not entitled to recover as an
individual on a contract executed by SafeNET since SafeNet was not a party to the suit.
7
Whisenhunt responded to the motion to dismiss by arguing the inapplicability5 of the
TCPA and claiming, alternatively, that even if the chapter applied to the suit he had brought, the
court could not dismiss the action because he could establish “by clear and specific evidence a
prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.005(c) (West Supp. 2012).
The trial court entered its ruling on this controversy by order entered March 4, 2013,
wherein it found that Whisenhunt “met the minimum threshold to proceed with the defamation
cause of action” but did not “provide clear and specific evidence to proceed with the tortious
interference claims and the claim of conspiracy.” On March 15, 2013, the trial court denied the
motion to dismiss “with regard to Plaintiff’s claim for Defamation” but granted the motion to
dismiss “with regard to Plaintiff’s claims for Tortious Interference with Existing Business
Relationships, Tortious Interference with Prospective Business Relationships and Conspiracy to
Interfere with Business Relations.” The trial court also awarded court costs and $2,887.50 in
5
Whisenhunt also argued that the following exception in the statute applied to his suit:
This chapter does not apply to a legal action brought against a person primarily engaged in the
business of selling or leasing goods or services, if the statement or conduct arises out of the sale or
lease of goods, services, or an insurance product or a commercial transaction in which the
intended audience is an actual or potential buyer of customer.
TEX. CIV. PRAC. & REM. CODE ANN. § 27.010(b) (West Supp. 2012). Whisenhunt argued that Lippincott and Parks
“were engaged in the commercial sale of medical services in connection with their positions at” FSS, the speech
about Whisenhunt arose “out of their business interactions with Plaintiff and with their sale of medical services at
FSS,” and the intended audience of the allegedly defamatory statements was third parties interested in conducting
business with Whisenhunt. Because we conclude that the statute does not apply, we need not decide whether the
commercial speech exception applies in this case. Worth mentioning, however, is the fact that this exception to
TCPA’s applicability applies where a statement is made to a limited audience and not the public at large. Better
Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., No. 01-12-00990-CV, 2013 WL 3716693, at *5
(Tex. App.—Houston [1st Dist.] Jul. 16, 2013, pet. filed).
8
attorney’s fees 6 to Lippincott and Parks based on their written claim for fees and their attorney’s
affidavit.
II. The TCPA Does Not Apply
Lippincott and Parks bore the initial burden of demonstrating the TCPA’s applicability.
Wholesale TV & Radio Adver., LLC v. Better Bus. Bureau of Metro. Dallas, Inc., No. 05-11-
01337-CV, 2013 WL 3024692, at *2 (Tex. App.—Dallas Jun. 14, 2013, no pet.) (mem. op.);
Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc., 402 S.W.3d 299, 307 (Tex. App.—
Dallas 2013, pet. filed).
The trial court’s initial determination that Lippincott and Parks showed by a
preponderance of the evidence that the legal action was based on their exercise of free speech is
subject to de novo review. KTRK Television, Inc. v. Robinson, No. 01-12-00372-CV, 2013 WL
3483773, at *5 (Tex. App.—Houston [1st Dist.] July 11, 2013, no pet. h.) (citing Newspaper
Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01-12-00581-CV, 2013 WL 1867104, at
*6 (Tex. App.—Houston [1st Dist.] May 2, 2013, no pet. h.)).
Both parties believe the rules of statutory construction support their respective positions.
Since the issue of statutory construction is a question of law, we review it de novo. Molinet v.
Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); R.R. Comm’n of Tex. v. Tex. Citizens for a Safe
Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011). When construing a statute, our
6
Section 27.009 states that court costs and reasonable attorney’s fees “shall” be awarded to the moving party “[i]f
the court orders dismissal of a legal action under this chapter.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.009(a)(1)
(West Supp. 2012). A “legal action” is defined as a “lawsuit, cause of action, petition, complaint, cross-claim or
counterclaim or any other judicial pleading or filing that requests legal or equitable relief.” TEX. CIV. PRAC. & REM.
CODE ANN. § 27.001(6) (West Supp. 2012).
9
primary objective is to ascertain and give effect to the Legislature’s intent. TEX. GOV’T CODE
ANN. § 312.005 (West 2013); Molinet, 356 S.W.3d at 411. “We look first to the statute’s
language to determine that intent, as we consider it ‘a fair assumption that the Legislature tries to
say what it means, and therefore the words it chooses should be the surest guide to legislative
intent.’” Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008) (quoting Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex. 1999)); see Molinet, 356 S.W.3d at 411.
We consider the statute as a whole rather than focusing upon individual provisions. TGS–
NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011). If a statute is
unambiguous, we adopt the interpretation supported by its plain language unless such an
interpretation would lead to absurd results. Id. (citing Tex. Dep’t of Protective & Regulatory
Servs. v. Mega Child Care, 145 S.W.3d 170, 177 (Tex. 2004)).
The right of free speech is guaranteed under both the United States 7 and Texas 8
Constitutions. The tort of defamation creates an exception to these broad guarantees. Gertz v.
Robert Welch, Inc., 418 U.S. 323, 341 (1974); see also Cain v. Hearst Corp., 878 S.W.2d 577,
582 (Tex. 1994) (noting “[e]very defamation action that the law permits necessarily inhibits free
speech”). The TCPA recognizes the need to protect those filing meritorious defamation claims
7
Amendment I to the United State Constitution provides, “Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right
of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. CONST.
amend. I.
8
Article I, Section 8 of the Texas Constitution states, “Every person shall be at liberty to speak, write or publish his
opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing
the liberty of speech or of the press.” TEX. CONST. art. I, § 8.
10
but seeks to punish or deter, through the assessment of attorney’s fees and sanctions, those who
abuse this tort action to silence others who otherwise have a constitutional right to speak freely.
The stated purpose of the TCPA is “to encourage and safeguard the constitutional rights
of persons to petition, speak freely, associate freely, and otherwise participate in government to
the maximum extent permitted by law and, at the same time, protect the rights of a person to file
meritorious lawsuits for demonstrable injury.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.002
(West Supp. 2012). 9 The “[e]xercise of the right to free speech” is defined as “a
communication[10] made in connection with a matter of public concern.” TEX. CIV. PRAC. &
REM. CODE ANN. § 27.001(3) (West Supp. 2012). The phrase “[m]atter of public concern” is
defined by the statute as “an issue related to: health or safety; environmental, economic, or
community well-being; a public official or public figure; or a good, product, or service in the
marketplace.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7) (West Supp. 2012).
Lippincott and Parks argued that the “email string presented by Whisenhunt” and
authored by Lippincott “[is] related to matters of public concern in the areas of health and safety,
community well-being and a service in the marketplace.” Whisenhunt responds by arguing that
interpretation of the statute in that manner conflicts with the statute’s also-stated purpose of
9
The Act requires a court to “dismiss a legal action against the moving party if the moving party shows by a
preponderance of the evidence that the legal action is based on, relates to, or is in response to the party’s exercise of:
(1) the right of free speech.” TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.003, 27.005(b)(1) (West Supp. 2012).
10
A communication “includes the making or submitting of a statement or document in any form or medium,
including oral, visual, written, audiovisual, or electronic.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1) (West
Supp. 2012).
11
protecting “the rights of a person to file meritorious lawsuits for demonstrable injury.” TEX. CIV.
PRAC. & REM. CODE ANN. § 27.002. 11
“[N]ot all speech is of equal First Amendment importance. It is speech on ‘matters of
public concern’ that is ‘at the heart of the First Amendment’s protection.’” Dun & Bradstreet,
Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758–59 (1985) (footnote omitted) (quoting First
Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 776 (1978)). The purpose of the statute is to
“petition, speak freely, associate freely, and otherwise participate in government.” TEX. CIV.
PRAC. & REM. CODE ANN. § 27.002 (emphasis added). As stated in Dun & Bradstreet, “[t]he
First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about
of political and social changes desired by the people.’” Dun & Bradstreet, 472 U.S. at 759(quoting Roth v. United States, 354 U.S. 476, 484 (1957)); New York Times Co. v. Sullivan, 376
U.S. 254, 269 (1964). “‘[S]peech concerning public affairs is more than self-expression; it is the
essence of self-government.’” Dun & Bradstreet, 472 U.S. at 759 (quoting Garrison v.
Louisiana, 379 U.S. 64, 74–75 (1964)).
There is a distinction between the protections afforded to private speech versus public
speech. Hancock v. Variyam, 400 S.W.3d 59, 65 (Tex. 2013) (citing Dun & Bradstreet, 472 U.S.
at 60) (speech solely in individual interest of speaker and his specific business audience warrants
no special protection when wholly false and clearly damaging to victim’s business reputation).
The phrase “matter of public concern” is not new to our jurisprudence. When a defamatory
11
We must give “effect to all words so that none of the statute’s language is treated as surplusage.” Marks v. St.
Luke’s Episcopal Hosp., 319 S.W.3d 658, 663 (Tex. 2010).
12
statement involves a matter of public concern, private individuals suing for defamation have long
been required to prove actual malice, but even so, this assumes that the matter was publicly
communicated, usually through a media defendant. See Bentley v. Bunton, 94 S.W.3d 561, 580
(Tex. 2002); Klentzman v. Brady, 312 S.W.3d 886, 898 (Tex. App.—Houston [1st Dist.] 2009,
no pet.). By including the phrase “otherwise participate in government,” it appears the
Legislature intended to protect free speech that rises to such a level that it can be considered
participation in government. In other words, the speech must be exercised in the form of public
communication.
“Under the Code Construction Act, we may look to the statute’s legislative history in
gleaning the Legislature’s intent.” Phillips v. Beaber, 995 S.W.2d 655, 658 (Tex. 1999) (citing
TEX. GOV’T CODE ANN. § 311.023(3) (West 2005)). Our reading of the TCPA is bolstered by
the sponsor’s May 14, 2011, statement of intent, which contains the following reasoning for
enacting the statute:
Citizen participation is the heart of our democracy. Whether petitioning the
government, writing a traditional news article, or commenting on the quality of a
business, involvement of citizens in the exchange of idea[s] benefits our society.
Yet frivolous lawsuits aimed at silencing those involved in these activities are
becoming more common, and are a threat to the growth of our democracy. The
Internet age has created a more permanent and searchable record of public
participation as citizen participation in democracy grows through self-publishing,
citizen journalism, and other forms of speech. Unfortunately, abuses of the legal
system, aimed at silencing these citizens, have also grown. These lawsuits are
called Strategic Lawsuits Against Public Participation or “SLA[P]P” suits.
Twenty-seven states and the District of Columbia have passed similar acts, most
commonly known as either “Anti-SLAPP” laws or “Citizen Participation Acts”
13
that allow defendants in such cases to dismiss cases earlier than would otherwise
be possible, thus limiting the costs and fees. The Texas Citizen Participation Act
would allow defendants—who are sued as a result of exercising their right to free
speech or their right to petition the government—to file a motion to dismiss the
suit, at which point the plaintiff would be required to show by clear and specific
evidence that he had a genuine case for each essential element of the claim. In
addition, if the motion to dismiss is granted, the plaintiff who has wrongly
brought the lawsuit may be required to pay attorney’s fees of the defendant.
C.S.H.B. 2973 amends current law relating to encouraging public participation by
citizens by protecting a person’s right to petition, right of free speech, and right of
association from meritless lawsuits arising from actions taken in furtherance of
those rights.
Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., RS (2011). The
statement of intent confirms the concept gathered from reading the statute as a whole that the
Legislature was attempting by this law to protect a citizen’s public participation. 12 Otherwise,
pre-discovery dismissals, attorney’s fees, and sanctions would loom over any plaintiff filing an
action for private defamatory speech, which would have the effect of chilling meritorious private
defamation suits, a result neither intended nor required under the TCPA.
Lippincott and Parks argue that to the extent the emails refer to Whisenhunt, “they relate
to his conduct as a nurse and whether that conduct should be reported to the Texas Board of
12
We do not mean to imply that the free speech at issue must be related to participation in government, but only that
the speech must be communicated publicly. “The Legislature could have limited the protection provided by the
TCPA to the exercise of free speech relating to participation in government, but did not do so. Because the statutory
definition of issues representing a ‘matter of public concern’ is not ambiguous, we must enforce it as written.” BH
DFW, Inc., 402 S.W.3d at 308 (citing Combs, 340 S.W.3d at 439). “[T]he First Amendment protects speech
conveying information about products and transaction in the commercial marketplace.” John Moore Servs., Inc.,
2013 WL 3716693, at *4 (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 503–04 (1996); Va. State Bd. of
Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976)).
14
Nursing.” 13 They cite to a recent case where the Houston First District Court found that “[t]he
business of operating an assisted living facility is a highly regulated one,” and held that a
newspaper which published allegedly defamatory statements was protected by the TCPA
because it was communicating a matter of public concern and was, thus, exercising its right of
free speech. Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., No. 01-12-00581-
CV, 2013 WL 1867104, at *7 (Tex. App.—Houston [1st Dist.] May 2, 2013, no pet. h.). The
court also noted that the newspaper’s statements were a matter of public concern because
residents of an assisted living facility retain the right to choose their own health care
professionals. Id. However, Crazy Hotel differs from the case here because it involved a case
where information was published to the public in a newspaper, whereas the allegations in this
case were not.
We also bear in mind the circumstances under which the statute was enacted and the
consequences of any particular construction. Phillips, 995 S.W.2d at 658 (citing TEX. GOV’T
CODE ANN. § 311.023(2), (5)). Further, we presume that the Legislature acted with knowledge
of the common law and court decisions. Id. Our review of TCPA caselaw reveals dismissals
involving articles published to the public, business ratings available to the public, and statements
made on websites about public figures, goods, products, or services. In all of these free speech
cases, the allegedly actionable statements not only involved matters of public concern, they were
also readily available to the public. See generally Robinson, 2013 WL 3483773 (involving suit
13
At the hearing, Lippincott and Parks’ attorney told the court, “My clients, you know, deny that they made any
reports to the Board of Nursing.”
15
brought against television broadcaster for defamation following news story on financial
mismanagement at local school); Crazy Hotel Assisted Living, Ltd., 2013 WL 1867104(involving articles published in newspaper relating to problems at assisted living center); Rehak
Creative Servs., Inc. v. Witt, 404 S.W.3d 716 (Tex. App.—Houston [14th Dist.] 2013, pet.
denied) (involving suit by company against candidate running for office who posted on website
that company contributed money to opponent’s campaign to get government contracts);
Wholesale TV & Radio Advertising, LLC, 2013 WL 3024692 (involving BBB’s F rating of
business); BH DFW, Inc., 402 S.W.3d 299 (same); Better Bus. Bureau of Metro. Dallas, Inc. v.
Ward, 401 S.W.3d 440 (Tex. App.—Dallas 2013, pet. filed) (same); Avila v. Larrea, 394 S.W.3d
646 (Tex. App.—Dallas 2012, pet. denied) (suit brought by lawyer against Spanish television
station for broadcasting allegedly defamatory statements and posting them on internet suggesting
lawyer was defrauding undocumented immigrants). 14 Based on this case study, we believe that
if a person is not exercising his right to speak freely in public, the TCPA will not apply to suits
filed against him.
14
We distinguish this case from In re Lipsky, No. 02-12-00348-CV, 2013 WL 1715459 (Tex. App.—Fort Worth
Apr. 22, 2013, orig. proceeding), a right to petition case. In that case, property owners filed complaints with the
Environmental Protection Agency against Range Resources Corporation, alleging the latter was responsible for
contaminating their water well through oil and gas drilling activities. While the EPA’s investigation found that
Range’s activities contaminated the water, the Texas Railroad Commission found that the contamination was not
caused by Range. Id. The property owners eventually sued Range. Id. at *2. Range counterclaimed for
defamation, among other causes of action, and contended that their deep shale fracking could not have contaminated
the shallow water well. Id. The property owners moved to dismiss the company’s counterclaims under the TCPA,
but the trial court denied the motions. Id. at **2–3. The court found that Range’s claims fit within the TCPA
because they were based on the property owners’ rights to petition and encourage review of the issue by the EPA, a
governmental body. Id at *6. The court also wrote that the environmental effects of fracking was a matter of public
concern. Id. at *7.
16
A review of the anti-SLAPP legislation in other states, which was referenced in the
sponsor’s statement of intent, also supports the conclusion reached here. The anti-SLAPP
statutes in California, the District of Columbia, Louisiana, Maryland, Nevada, Vermont, and
Washington specifically protect only those statements made to the public or in a public forum. 15
Because anti-SLAPP statutes in the following jurisdictions only protect either the right to
petition or speech made before a governmental body, there is no dismissal mechanism for
communications made about matters of public concern that are not made in a public forum:
Arizona, Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Maine, Massachusetts,
Minnesota, Nebraska, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island,
Tennessee, and Utah. 16 The Anti-SLAPP legislation adopted by Indiana 17and Oregon, 18
respectively, contains language similar to the TCPA, but no cases in those jurisdictions have
applied the anti-SLAPP law to private speech.
Considering the language of the statute as a whole, the Legislature’s statement of intent,
and existing law, which was referenced by the Legislature, we conclude that the TCPA does not
15
CAL. CIV. PROC. CODE § 425.16(e); D.C. CODE §16-5501; LA. CODE CIV. PROC. ANN. art. 971; MD. CODE ANN.,
CTS. & JUD. PROC. § 5-807; NEV. REV. STAT. § 41.637; VT. STAT. ANN. tit. 12, §1041; WASH. REV. CODE
§ 4.24.525.
16
ARIZ. REV. STAT. ANN. § 12-751; ARK. CODE ANN. § 16-63-503; DEL. CODE ANN. tit. 10, § 8136; FLA. STAT.
§ 768.295; GA. CODE ANN. § 9-11-11.1(c); 7 GUAM CODE ANN. §§17101–17109; HAW. REV. STAT. § 634F-1; 735
ILL. COMP. STAT. 110/15; ME. REV. STAT. tit. 14, § 556; MASS. GEN. LAWS ch. 231, § 59H; MINN. STAT. § 554.01;
NEB. REV. STAT. § 25-21,241; N.M. STAT. ANN. § 38-2-9.1, 9-2; N.Y. CIV. RIGHTS LAW §§ 70-a, 76-a; OKLA. STAT.
tit. 12, § 1443.1; 27 PA. CONS. STAT. § 7707 & 8301–8303; R.I. GEN. LAWS §§ 9-33-1, 9-33-4; TENN. CODE ANN.
§ 4-21-1003; UTAH CODE ANN. §§ 78B-6-1401, 78B-6-1405.
17
IND. CODE § 34-7-7-2.
18
OR. REV. STAT. § 31.150.
17
apply to speech that is only privately communicated. Only under such an interpretation can both
purposes of the TCPA be served. Thus, the TCPA did not apply to the claims raised against
Lippincott and Parks.
III. CONCLUSION
We reverse the trial court judgment applying the TCPA and remand this case to the trial
court for further proceedings consistent with this opinion.
Bailey C. Moseley
Justice
Date Submitted: September 18, 2013
Date Decided: October 9, 2013
18