Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Price v. Buschemeyer

Court of Appeals of Texas, Twelfth District, Tyler

March 29, 2018

DAVID T. PRICE M.D., IND., DAVID T. PRICE, M.D., P.A., D/B/A EAST TEXAS UROLOGY SPECIALISTS; PINEY WOODS HEALTHCARE SYSTEM, L.P., D/B/A WOODLAND HEIGHTS MEDICAL CENTER, AND CHI ST. LUKE'S HEALTH MEMORIAL LUFKIN, F/K/A MEMORIAL HEALTH SYSTEM OF EAST TEXAS, APPELLANTS
v.
W. COOPER BUSCHEMEYER, III, INDIVIDUALLY AND W. COOPER BUSCHEMEYER, III, M.D., P.A., APPELLEES

          Appeal from the 217th District Court of Angelina County, Texas (Tr.Ct.No. CV-00848-16-12)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          Brian Hoyle Justice

         David T. Price M.D., Individually, David T. Price, M.D., P.A., d/b/a East Texas Urology Specialists (Price), Piney Woods Healthcare System, L.P., d/b/a Woodland Heights Medical Center (Woodland Heights), and CHI St. Luke's Health Memorial Lufkin, f/k/a Memorial Health System of East Texas (Memorial) appeal the trial court's denial of their motions to dismiss a lawsuit filed against them by W. Cooper Buschemeyer, III, Individually and W. Cooper Buschemeyer, III, M.D., P.A (referred to together as Buschemeyer). In two issues, Price, Woodland Heights, and Memorial (Appellants) contend that the Texas Citizens Participation Act (TCPA) applies to this suit, and that Buschemeyer failed to meet his burden to establish a prima facie case on each element of his claims. Appellants also request that we remand the case for a determination of attorney's fees and costs. We affirm in part, reverse and render in part, and reverse and remand in part.

         Background

         Buschemeyer alleges that in 2012, Price, a Lufkin-area urologist, recruited him to relocate from Kentucky so that they could practice together in Lufkin, Texas.[1] They shared office space, staff, overhead, and call duties at local hospitals such as Memorial and Woodland Heights. In 2013, the relationship soured, and Buschemeyer ceased sharing office space with Price. Nevertheless, Price, Buschemeyer, and another Lufkin urologist (Dr. Brent Campbell) were part of a urology "call group" from 2013 through 2015. The purpose of the call group is to establish a call list rotation schedule by which the urologists provide emergency urological care at all times for Woodland Heights and Memorial. According to Buschemeyer, during this time, Price acted abusively toward him, ultimately negotiating with Memorial and Woodland Heights to remove him from the call list in early 2016.

         Buschemeyer later filed suit, alleging that Price acted wrongfully to omit him from Memorial and Woodland Height's 2016 urology call list, and that the hospitals wrongfully allowed him to be removed from the list. Buschemeyer also alleges that as a result of his removal from the list, the hospitals' staff failed to notify him at the request of his patients at those hospitals. Buschemeyer contends that his removal from the call list devastated his practice, resulting in damages, and ultimately, the cessation of his practice in Lufkin.

         Appellants filed motions to dismiss under the TCPA, contending that Buschemeyer's claims are governed by the TCPA and that he failed to carry his burden under the Act.[2] The trial court overruled Appellants' motions to dismiss, finding that the TCPA did not apply to Buschemeyer's claims, and that in any event, Buschemeyer satisfied his burden to present clear and specific evidence of a prima facie case on each essential element of his causes of action. This appeal followed.[3]

         Applicability of the TCPA

         In Appellants' first issue, they contend that the trial court erred in concluding that the TCPA does not apply to Buschemeyer's claims against them.

         Standard of Review and Applicable Law

         The TCPA provides a mechanism for early dismissal of a cause of action that "is based on, relates to, or is in response to a party's exercise of the right of free speech, the right to petition, or right of association . . . ." Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (West 2015). The party moving for dismissal has the initial burden to establish 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" the right of free speech, the right to petition, or the right of association. Id. § 27.005(b) (West 2015). If the movant makes this showing, the burden shifts to the nonmovant to establish by "clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c). When determining whether to dismiss the legal action, the court must consider "the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." Id. § 27.006(a) (West 2015).

         The TCPA defines "exercise of the right of free speech" as a communication made in connection with a matter of public concern. Id. § 27.001(3) (West 2015). A "matter of public concern" includes an issue related to health or safety; environmental, economic, or community well-being; the government; a public official or public figure; or a good, product, or service in the marketplace. Id. § 27.001(7). A "communication" is defined to include "the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic." Id. § 27.001(1). The TCPA does not discriminate between public and private communications as long as they are made in connection with a matter of public concern. Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam). The TCPA statutory analysis is not dictated by traditional First Amendment constitutional limitations. See ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (per curiam). Rather, we must apply the plain meaning of the TCPA as written, absent an ambiguity. See id. (holding court of appeals erred when it failed to apply the plain meaning of the statute by adding requirements not contained in TCPA).

         We review questions of statutory construction de novo. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). We consider de novo the legal question of whether the movant has established by a preponderance of the evidence that the challenged legal action is covered by the TCPA. Serafine v. Blunt, 466 S.W.3d 352, 357 (Tex. App.-Austin 2015, no pet.). When analyzing whether the TCPA applies to the plaintiff's legal action, we view the pleadings and evidence in the light most favorable to the nonmovant. See Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210, 214-15 (Tex. App.-Houston [14th Dist.] 2014, no pet.).

         Discussion

         Appellants contend that Buschemeyer's claims are based on, relate to, or are in response to their exercise of the right of free speech and the right of association. Buschemeyer responds that Appellants analyze the issue under the incorrect standard of review. He also argues that Appellants fail to consider evidence that favors him, fail to identify communications made by the hospitals, fail to show that any communications were made in connection with a matter of public concern, and ignore the right of association's limitation to "individuals."

         Under the TCPA, a defendant moving for dismissal need show only that the plaintiff's legal action is based on, relates to, or is in response to the defendant's exercise of the right of free speech as defined by the TCPA, that is, "a communication made in connection with a matter of public concern." Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017). The defendant need not show that the communication actually occurred. Id. The allegations in the plaintiff's pleadings and supporting affidavits determine the basis of the legal action, and not the defendants' admissions or denials. See id. When it is clear from the plaintiff's pleadings and supporting affidavits that the suit is covered by the TCPA, the defendants need show no more. See id.

         Buschemeyer alleges in his petition that Price tortiously interfered with his current and future contracts with the hospitals by having him removed from the call group, and that Price also tortiously interfered with the new patients that would have naturally flowed from his participation in the call group. Buschemeyer averred that Woodland Heights and Memorial allowed him to be removed from the call group without cause, and consequently, that they violated his right to due process under each respective hospital's applicable bylaws, rules, and regulations. He also alleged that Woodland Heights breached its contract with him by allowing his removal from the list. Finally, Buschemeyer alleges that Memorial and Woodland Heights failed to contact him when his existing patients presented to the hospitals and requested that he be contacted. Similarly, he alleged that Memorial and Woodland Heights failed to contact him at the request of other medical doctors to treat their patients, and that prior to the incident forming the basis of this suit- his removal from the call group-they did not interfere with his relationships with existing patients or the patients of other doctors. Buschemeyer stated in his affidavit that

Price met with the two Lufkin hospitals and negotiated the 2016 call reimbursement pay for the call group and call schedule. This was done without my knowledge. Price specifically negotiated to not have me in the hospital call schedule to punish me. Price used his position as Chief of Surgery at Memorial Hospital in Lufkin to have me removed from the call group. Price knew I was professionally and financially vulnerable if I was removed from the call group.
I discovered after calling the two Lufkin hospitals to find out the 2016 call schedule for Urology (dictated by Dr. Price) that I was not on the call schedule for either Lufkin hospital. I first made the enquiry to Memorial Hospital and was told I would have to talk to Dr. Price. Dr. Price's office did not return my call. I spoke with Woodland Heights who told me I was not on the call schedule any longer and had been replaced with Dr. Shawn Todd.

         The central basis for all of these claims is Buschemeyer's removal from the call group list and schedule. Consequently, Buschemeyer's "legal action, " which includes all of the claims alleged in his petition, is based on, relates to, or is in response to "communications" made by Appellants. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(6) (defining "legal action" in pertinent part as lawsuits, petitions, complaints, and causes of action requesting legal or equitable relief).

         Specifically, Buschemeyer alleges in his petition and affidavit that Price made statements to Memorial and Woodland Heights that resulted in his removal from the call group. Moreover, he alleges in his affidavit that his removal from the group resulted from "negotiations" between Price and the hospital defendants. "Negotiate" means "to communicate with another party for the purpose of reaching an understanding." Negotiate, Black's Law Dictionary (10th ed. 2014). A negotiation necessarily contemplates oral, written, or electronic statements between the parties, including not only Price individually and on behalf of his professional association, but also the hospital defendants. Buschemeyer also alleged in his affidavit that he initially called the hospitals in January 2016 to determine his schedule for providing services as part of the call group, and their agents made oral statements to him that he was no longer on the call schedule. Additionally, the call group list and schedule itself is a written statement, and his removal from it forms the basis of the suit.[4] Lastly, Buschemeyer claimed that the hospitals failed to contact him when requested by his patients or other doctors regarding the treatment of their patients. As we have stated, he alleged in his pleading that the hospital defendants did not engage in this behavior prior to the incident forming the basis of this suit-his removal from the call group. Consequently, Buschemeyer's claims are all based on, relate to, or are in response to Appellants' communications.

         Moreover, Appellants' communications were made in connection with matters of public concern. "The TCPA does not require that the statements specifically mention health, safety, environmental, or economic concerns, nor does it require more than a 'tangential relationship' to the same." ExxonMobil Pipeline Co., 512 S.W.3d at 900. "[R]ather, TCPA applicability requires only that the defendant's statements are 'in connection with' 'issue[s] related to' health, safety, . . . and other identified matters of public concern chosen by the Legislature." Id. The purpose of the call group is to ensure that patients have access to urological medical services in the emergency department of Lufkin area hospitals at all times. The composition of the call group list and schedule form the basis of the suit, which relates to matters of public concern, namely matters pertaining to health, safety, and community well-being. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7)(A), (B). Consequently, the communications resulting in Buschemeyer's removal from the call group were made in connection with matters of public concern. See Lippincott, 462 S.W.3d at 510 (holding that allegations in emails concerning nurse anesthetist's competence in providing medical services were matters of public concern); Mem'l Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 2017 WL 3389645, at *5-6 (Tex. App.-Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op. on reh'g).

         Accordingly, we hold that the trial court erred when it concluded that the TCPA does not apply to Buschemeyer's claims against Appellants. Because we hold that the communications were made in the exercise of the right of free speech under the TCPA, we need not determine whether they also implicate the exercise of the right of association. See Tex. R. App. P. 47.1; ExxonMobil Pipeline Co., 512 S.W.3d at 901-02.

         Appellants' first issue is sustained.

         Prima Facie Case

         In their second issue, Appellants argue that the trial court erred when it concluded that Buschemeyer satisfied his burden to prove, by clear and specific evidence, a prima facie case of each essential element of his claims as required by the TCPA.

         Standard of Review and Applicable Law

         Once the movant establishes that the TCPA applies to the plaintiff's claims, the second step shifts the burden to the plaintiff to establish by clear and specific evidence a prima facie case for each essential element of his claims. In re Lipsky, 460 S.W.3d 579, 587 (Tex. 2015) (orig. proceeding) (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c)). The Texas Supreme Court has explained the meaning of the requirement that the nonmovant establish by "clear and specific evidence a prima facie case." Id. at 590-91. "Clear" means "unambiguous, sure or free from doubt, " and "specific" means "explicit or relating to a particular named thing." Id. at 590. A "prima facie case" is "the minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id. It refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted. Id. The "clear and specific evidence" requirement does not impose an elevated evidentiary standard, nor does it categorically reject circumstantial evidence. Id. at 591. But it requires more than mere notice pleading. Id. at 590-91. Instead, a plaintiff must provide enough detail to show the factual basis for his claim. Id. at 590.

         We review de novo a trial court's determination of whether a nonmovant has presented clear and specific evidence establishing a prima facie case of each essential element of the challenged claims. Id. We consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); Campbell v. Clark, 471 S.W.3d 615, 623 (Tex. App.-Dallas 2015, no pet.).

         Evidentiary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.