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Giri v. Estep

Court of Appeals of Texas, Third District, Austin

May 4, 2018

Dipak Giri, DVM, Appellant
v.
Dr. J. Scot Estep, DVM, DACVP, Appellee

          FROM THE DISTRICT COURT OF COMAL COUNTY, 433RD JUDICIAL DISTRICT NO. C2017-1285D, HONORABLE R. BRUCE BOYER, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Field.

          MEMORANDUM OPINION

          Jeff Rose, Chief Justice.

         J. 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.

         Background

         Although 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).

         Giri 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.

         During 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.

         In his 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 consultants.

         In 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 Houston area:

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.

         Estep alleges that this email injured his "reputation and exposed [him] to both personal and professional contempt, ridicule, or financial injury" and "impeached [his] ...


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