Court of Appeals of Texas, Third District, Austin
Steve F. Montoya, Jr., M.D.; West Texas Renal Care; and West Texas Nephrology, Appellants
San Angelo Community Medical Center and Kirk Brewer, M.D., Appellees
THE DISTRICT COURT OF TOM GREEN COUNTY, 119TH JUDICIAL
DISTRICT NO. B150285C, HONORABLE BEN WOODWARD, JUDGE
Chief Justice Rose, Justices Field and Bourland
Olson Bourland, Justice
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. 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.
The trial court did not err in hearing Brewer's
motion to dismiss
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
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. "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).
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,  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 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.
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.
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).
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
Rule 91a: Applicable law and standard of
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
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
Montoya's allegations supporting his causes of
allegations are confusing and repetitious. However, the
following is a recitation of the relevant allegations from
his Fourth Amended Petition and attached
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.
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.
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."
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."
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.
Montoya's claims against Brewer
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.
Defamation per se and business disparagement
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." 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."
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.