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Montoya v. San Angelo Community Medical Center

Court of Appeals of Texas, Third District, Austin

May 31, 2018

Steve F. Montoya, Jr., M.D.; West Texas Renal Care; and West Texas Nephrology, Appellants
v.
San Angelo Community Medical Center and Kirk Brewer, M.D., Appellees

          FROM THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL DISTRICT NO. B150285C, HONORABLE BEN WOODWARD, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland

          MEMORANDUM OPINION

          Cindy Olson Bourland, Justice

         Appellants Steve F. Montoya, Jr., M.D., West Texas Renal Care, and West Texas Nephrology (collectively, "Montoya") filed suit against defendants San Angelo Community Medical Center ("SACMC") and Kirk Brewer, M.D. (collectively, "defendants"), asserting claims for defamation per se, business disparagement, tortious interference with current and prospective business relations, improper restraint of trade under the Texas Free Enterprise and Antitrust Act of 1983 ("TFEAA"), and civil conspiracy. Brewer filed a timely motion to dismiss under Texas Rule of Civil Procedure 91a and the Texas Citizens Participation Act ("TCPA"). See generally Tex. R. Civ. P. 91a; Tex. Civ. Prac. & Rem. Code §§ 27.001-.011. The trial court granted both motions and dismissed Brewer from the suit.[1] SACMC then filed a motion for summary judgment on the ground that all of Montoya's claims against SACMC were derivative of the claims against Brewer. The trial court granted the motion and dismissed the claims against SACMC with prejudice. Montoya then filed this appeal. For the following reasons, we will affirm the orders of the trial court in part and reverse and remand in part.

         DISCUSSION

         I. The trial court did not err in hearing Brewer's motion to dismiss

         In his third issue, Montoya argues that the trial court improperly considered Brewer's motion to dismiss. He asserts first that notice of the hearing on Brewer's motion to dismiss was insufficient and second that the amended motion was not timely filed.

         A Rule 91a motion to dismiss must be filed "within 60 days after the first pleading containing the challenged cause of action is served on the movant." Tex.R.Civ.P. 91a.3(a). The motion must be on file for "at least 21 days before the motion is heard, " id. R. 91a.3(b), and each party must receive "at least 14 days' notice of the hearing, " id. R. 91a.6.[2] "If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file . . . an amended motion directed to the amended cause of action, " and such an amended motion "restarts the time periods." Id. R. 91a.5(b), (d).

         Montoya filed his Original Petition on July 6, 2015, asserting as his causes of action: "tortious interference with current and prospective business/patient relations, " defamation per se, "malice, " business disparagement, and restraint of trade. In Brewer's first motion to dismiss, filed on December 8, 2015, Brewer asserted that he had been served with Montoya's petition on October 9, 2015, making his first motion to dismiss timely. A hearing on Brewer's motion was set for January 12, 2016; notice of that hearing was dated December 11, 2015. Montoya then filed his Second Amended Petition on January 4, [3] asserting the same causes of action but adding further factual allegations and attaching as exhibits two pages from a patient's chart and a sworn statement by the daughter of one of Montoya's existing patients, the contents of which will be discussed elsewhere in this opinion. On January 7, Brewer filed his amended motion to dismiss, listing the causes of action specifically listed by Montoya in his second petition[4] and also stating that Montoya had alleged as a "[c]ause of action thrown in with the factual dissertation-civil conspiracy and joint and several liability." In a written notice dated January 13, Brewer set his amended motion to dismiss for a hearing on January 29.

         Montoya argues that the trial court should not have heard Brewer's amended motion to dismiss because the notice of hearing provided less than twenty-one days notice. However, Rule 91a only requires parties receive fourteen days' notice of the hearing. See id. R. 91a.6. Montoya confuses the notice-of-hearing time frame with the rule's requirement that a motion to dismiss must be on file for at least twenty-one days. See id. R. 91a.3(b). Brewer's amended motion was filed on January 7, twenty-two days before the hearing, and notice was sent on January 13, sixteen days before the hearing, fully complying with the timing requirements of Rule 91a.

         Montoya further argues that Brewer's amended motion was filed more than sixty days after he was served with the lawsuit and, therefore, was untimely. See id. R. 91a.3(a). However, in making this argument, Montoya ignores the fact that the rule explicitly allows for the filing of an amended motion to dismiss in the event the respondent files an amended petition and neglects to mention that he amended his petition on January 4, after Brewer filed his original motion to dismiss, thus allowing Brewer to file an amended motion that reset all the relevant time periods (he further omits any mention of the fact that he amended his petition twice between the date Brewer filed his amended motion and the date of the hearing). See id. R. 91a.5(b), (d).

         Under the plain language of Rule 91a, the trial court did not err in hearing Brewer's amended motion to dismiss. We overrule Montoya's third issue on appeal.

          II. The trial court did not err in dismissing Montoya's claims against Brewer

         A. Rule 91a: Applicable law and standard of review

         Rule 91a provides that within sixty days of the first pleading alleging a cause of action, a party may move to dismiss that cause of action on the ground that it has no basis in law or fact. Tex.R.Civ.P. 91a.1, 91a.3(a). "Whether the dismissal standard is satisfied depends 'solely on the pleading of the cause of action.'" City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (per curiam) (cleaned up). "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Tex.R.Civ.P. 91a.1. A motion to dismiss must identify each cause of action challenged and "must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both." Id. R. 91a.2. The trial court may not consider evidence when ruling on a Rule 91a motion and must base its ruling only on the pleadings and any supporting exhibits. Id. R. 91a.6. An appellate court reviews a trial court's ruling on a motion to dismiss de novo. Sanchez, 494 S.W.3d at 724-25. Similarly, we base our review on the allegations set forth in the live petition and attachments thereto, construe the pleadings liberally in favor of the plaintiff, and accept as true the factual allegations. Wooley v. Schaffer, 447 S.W.3d 71, 75-76 (Tex. App.-Houston [14th Dist.] 2014, pet. denied); see Bedford Internet Office Space, LLC v. Texas Ins. Grp., Inc., 537 S.W.3d 717, 720 (Tex. App.-Fort Worth 2017, pet. filed) (plain language of Rule 91a.6 "requires the trial court to wear blinders to any pleadings except 'the pleading of the cause of action'"). However, we need not accept as true legal conclusions put forth by the pleader. City of Austin v. Liberty Mut. Ins., 431 S.W.3d 817, 826 (Tex. App.-Austin 2014, no pet.).

          B. TCPA: Applicable law and standard of review

         To assert a motion to dismiss under the TCPA, a defendant must show by a preponderance of the evidence that the legal action against him is based on, relates to, or is in response to the moving party's exercise of the right of free speech." Lippincott v. Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (quoting Tex. Civ. Prac. & Rem. Code § 27.005(b)). The court may not dismiss under the TCPA if the party bringing the legal action "establishes by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code § 27.005(c). "The exercise of the right of free speech" is broadly defined by the TCPA as "a communication made in connection with a matter of public concern." Lippincott, 462 S.W.3d at 509 (quoting Tex. Civ. Prac. & Rem. Code § 27.001(3)). A "matter of public concern" includes issues related to health or safety or "environmental, economic, or community well-being." Tex. Civ. Prac. & Rem. Code § 27.001(7).

         C. Montoya's allegations supporting his causes of action

         Montoya's allegations are confusing and repetitious. However, the following is a recitation of the relevant allegations from his Fourth Amended Petition and attached exhibits.[5]

         Montoya was admitted to practice nephrology, a medical specialty focusing on diseases of the kidney, at SACMC in 1981, where he maintained full staff privileges. In 2006, SACMC "created its own group of doctors owned by the hospital in both hospitalist groups and in a group named Community Medical Associates." In 2007, Brewer joined SACMC as chief of the medical staff and head of the hospitalist group that practices at SACMC.

         A substantial part of Montoya's practice was obtaining new patients and treating existing patients who came to the emergency room and needed a nephrologist. The SACMC emergency room uses a rotating system of specialists admitted in that practice to see patients in the hospital and emergency room. Prior to 2007, Montoya "received his rotating share of referrals of patients with kidney [issues] until SACMC created its own practice groups." He would also receive ten to twenty calls from the emergency room each month to treat either new or existing patients.

         According to Montoya, "The correct and appropriate way for any health care provider of emergency hospital services and nephrology service is to provide the highest quality of care to the patient. . . . The illegal and unjust way of treating patients is to manipulate their free choice in the market place. In this case it is to only refer a patient to a hospitalist, in a group owned by the hospital, and to them only refer a patient to a nephrologist in a hospital owned group and to malign and smear a highly qualified nephrologist in the practice at the same hospital."

         Since 2007, "[t]he Defendants decided to then have a covert whisper campaign and not refer any patients to Dr. Montoya." Since that time, Montoya has received only one referral, on January 24, 2014, when Montoya received a consultation call for a patient by the hospitalist on duty and provided an initial consult. The following day, Brewer was the hospitalist on duty, and "without ever seeing the patient or the [patient's medical] chart, " Brewer cancelled Montoya's consult and treatment and consulted another nephrologist. The nephrologist consulted instead belongs to a group with which Brewer "has a contract for paid services." Montoya went to see the "call board" and "witnessed his name . . . as the nephrologist on call on January 24 and 25, 2014."

         Two patients with whom Montoya had an existing patient-physician relationship requested Montoya upon their admission to the emergency room, but SACMC staff would not call Montoya to treat those patients. Both of those instances occurred when Brewer was chief of the medical staff and head of the hospitalist service at SACMC.

         D. Montoya's claims against Brewer

         Having reviewed the allegations in Montoya's petition in a light most favorable to him and accepting those allegations as true, we conclude that other than Montoya's claim for tortious interference "with current . . . business/patient relations, " the trial court did not err in dismissing Montoya's claims against Brewer pursuant to Rule 91a. See Wooley, 447 S.W.3d at 75-76. As explained below, Montoya's claim for tortious interference with current business/patient relations arguably could have survived Brewer's Rule 91a motion, but fails in the face of his TCPA motion.

         1. Defamation per se and business disparagement

         In his first issue, Montoya contends that "Dr. Brewer's defamation was published by conduct when he removed Dr. Montoya from consulting with a patient on January 25, 2014 at 8:10 a.m."[6] Montoya argues that Brewer, "by his actions of removing Dr. Montoya as the nephrologist published a statement that Dr. Montoya was not a competent nephrologist to treat patients coming to the [SACMC] emergency room."

         a. Applicable law

         The elements of defamation are (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some cases. In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) (orig. proceeding). The plaintiff must plead and prove damages, unless the defamatory statements are defamatory per se. Id. Defamation per se refers to statements that are so obviously harmful that general damages may be presumed. Id. The determinations of whether a published statement is (1) false and defamatory and (2) an actionable statement of fact or a constitutionally protected statement of opinion are questions of law. Vice v. Kasprzak, 318 S.W.3d 1, 18 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The elements of business disparagement are (1) the defendant published false and disparaging information about plaintiff, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff. Lipsky, 460 S.W.3d at 592.

         b. ...


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