Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT
NO. C2017-1285D, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING
Chief Justice Rose, Justices Goodwin and Field.
Rose, Chief Justice.
Scott Estep, DVM, DACVP, sued Dipak Giri, DVM, for defamation
per se. Giri filed a motion to dismiss under the Texas
Citizens Participation Act (TCPA). See generally
Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. The
trial court denied the motion. On appeal, Giri argues that it
was error for the trial court to deny his motion because the
TCPA requires dismissal of Estep's defamation claim.
Because we agree with Estep that his lawsuit is exempted from
the TCPA under that act's "commercial speech"
exemption, see id. § 27.010(b), we will affirm.
the parties vigorously dispute their characterization and
effect, the underlying facts are largely undisputed. Estep
and Giri are veterinary pathologists. Estep owns Texas
Veterinary Pathology LLC (TVP), a central-Texas company that
provides veterinary-pathology consultation for veterinarians.
From September 2015 through July 2016, Estep and Giri were in
a business relationship-the exact nature of which is
disputed-that had Giri performing biopsies, cytologies, and
necropsies for veterinarians in the Houston area. Giri had to
obtain, under Estep's sponsorship, a special license to
practice veterinary medicine in Texas from the Texas Board of
Veterinary Medical Examiners (Veterinary Board).
ended his business relationship with Estep in July 2016. In
the wake of Giri's departure, Estep sent an email to
Marilyn Hartman, Director of Licensing & Examination at
the Veterinary Board, to voice concerns that Giri had been
operating outside of the supervision required by his
specialty license. Hartman responded that Giri had applied
for and been issued a new special license under a different
employer, that the Veterinary Board was "confident that
Dr. Giri knew the limitations of his license and he was not
working outside of the provisions of his special license,
" that "Giri followed the proper licensure process,
" and that Estep had "fulfilled [his]
responsibility as his previous employer." Estep
continued his email correspondence with Hartman, voicing
concerns about whether Giri's new employer would oversee
his work properly, and asking questions about matters related
to record keeping. Hartman attempted to answer Estep's
questions, but ultimately told him the Veterinary Board was
not interested in getting further involved in the matter.
this same general time period, Estep contacted several
veterinarians in the Houston area, including the veterinarian
who had agreed to be Giri's new special-license sponsor.
In his email to Giri's new sponsor, Estep stated-
I understand that your group is now sponsoring Dr Giri there
in the Houston area. Dr Giri and I worked well together and
it was just Thursday that I was informed of his resignation.
I promise to you that this email is not meant as a
retaliation for Dr Giri but I strongly recommend that you
quality control his work. I also recommend that you establish
a non-compete contract.
emails to other Houston-area veterinarians, Estep stated-
As I expect you already know Dr Giri has left employment with
[TVP] and assuming that he can maintain his Texas Veterinary
licence without my sponsorship of his limited licence to
practice, he will be providing service there in the Houston
area. It is likely that you have had associate veterinarians
do the same to you in the past and understand that it can be
a challenging situation. Dr Giri and I had a positive
relationship up to the day he announced his resignation on
Thursday (14 July) and despite his abuse of my trust I truly
hope that he can make things work for him there in Houston.
As Dr Giri's sponsor I have regularly reviewed the slides
before they were sent to Houston and regularly consulted with
him on your cases. TVP has been established for 10 years now
and we have a group of 5 pathologists here in San Antonio to
review and give second opinions on cases. TVP is still here
and can actually read out cases 24-48 hours faster without
having to mail them back to Dr Giri. We are a large
established group with established relationships with a wide
range of specialties and advanced diagnostics. I receive
cases every day from all over the United States and I am
certain that we can serve as your personal pathology
response to the above emails, Giri sent out the following
email-the basis for Estep's defamation suit and the
subject of this appeal-to several veterinarians in the
I am writing this personal letter as I have been attacked and
targeted by Dr. Estep with whom I was working without any
salary but paying service charges for his company and
exp[e]nses to make slides for biopsy and necropsy cases you
have sent to me. As you know, [I] developed my business with
you through my personal contact and interaction. Dr. Estep
claims I have taken all his clients and I was told that he is
sending [e]mails to you to convince [you] that you are his
clients and mine. He even complained against me to [the]
State Veterinary Board. Fortunately, [the] board has replied
(please see attached letter). I know you all are extremely
busy people dedicated to the clients. If you think you have
received good services from me, may I request you to write
[the Board] about your opinion about me and your opinion
about Dr. Estep [']s letter in a few lines.
alleges that this email injured his "reputation and
exposed [him] to both personal and professional contempt,
ridicule, or financial injury" and "impeached [his]