Court of Appeals of Texas, Twelfth District, Tyler
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
W. COOPER BUSCHEMEYER, III, INDIVIDUALLY AND W. COOPER BUSCHEMEYER, III, M.D., P.A., APPELLEES
from the 217th District Court of Angelina County, Texas
consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
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
alleges that in 2012, Price, a Lufkin-area urologist,
recruited him to relocate from Kentucky so that they could
practice together in Lufkin, Texas. 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.
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.
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. 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
of the TCPA
Appellants' first issue, they contend that the trial
court erred in concluding that the TCPA does not apply to
Buschemeyer's claims against them.
of Review and Applicable Law
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
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).
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
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."
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.
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.
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).
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. 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 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
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
first issue is sustained.
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
of Review and Applicable Law
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.
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