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Day v. Federation of State Medical Boards of United States, Inc.

Court of Appeals of Texas, Fourth District, San Antonio

June 26, 2019

Calvin DAY, Jr. M.D., Appellant
v.
FEDERATION OF STATE MEDICAL BOARDS OF THE UNITED STATES, INCORPORATED, Appellee

          From the 288th Judicial District Court, Bexar County, Texas Trial Court No. 2018-CI-05000 Honorable Antonia Arteaga, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Beth Watkins, Justice

          OPINION

          IRENE RIOS, JUSTICE

         Calvin Day Jr., M.D. ("Day") sued the Federation of State Medical Boards of the United States, Inc. ("the Federation") for defamation and tortious interference with prospective business relations. In response, the Federation moved to dismiss Day's lawsuit pursuant to the Texas Citizens Participation Act ("TCPA"). See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-.011. The trial court granted the Federation's motion to dismiss and awarded it $83, 292.50 in attorney's fees. Day filed this appeal.

         In four issues, Day argues the trial court erred by (1) denying his motion to strike an affidavit, (2) dismissing his suit because the TCPA did not apply, (3) dismissing his suit because he established a prima facie case for both defamation and tortious interference, and (4) awarding the Federation $83, 292.50 in attorney's fees. We overrule Day's issues and affirm the trial court's judgment.

         Background

         The Texas State Medical Board ("the Board") is a state agency that regulates the practice of medicine in Texas. Tex. Occ. Code Ann. § 152.001(a). In June 2011, the Board temporarily suspended Day's medical license and commenced administrative proceedings against him. The suspension was prompted by complaints of "boundary violations" made by six individuals, including several of Day's patients, and Day's arrest and indictment for sexual assault arising from one of these complaints. A jury convicted Day of sexual assault, but the conviction was set aside when the trial court granted a new trial. The criminal charges against Day were eventually dismissed. In addition, four of the six complainants refused to cooperate in the Board's administrative investigation. By early 2017, only one of the complaints remained pending before the State Office of Administrative Hearings. On March 3, 2017, Day and the Board entered into an "Agreed Order," which resolved the remaining administrative complaint, lifted the suspension of Day's medical license, and imposed numerous restrictions on Day's practice of medicine.

         The Federation maintains a website that provides physician data, including sanctions reported by state licensing boards. The part of the Federation's website known as the "Physician Data Center" contains a profile for each physician, including his or her licensure history, education, training, and biographical information. The Federation received the Agreed Order from the Texas Medical Board and, under the heading, "Board Actions," posted the following information on its website pertaining to Day:

Reporting Entity: Texas Medical Board
Date of Order: 3/3/2017
Form of Order: Agreed Order
Action(s): RESTRICTIONS/LIMITATIONS PLACED ON MEDICAL LICENSE/PRACTICE
Basis: Unprofessional Conduct

         Day complained to the Federation that the "unprofessional conduct" statement was false and insisted that it be removed from his profile. Day asserted that the restrictions the Board placed on his return to practice were based solely on the fact that he had not practiced for six years because of his suspension. The Federation responded to Day's complaint by asking the Board if the "unprofessional conduct" statement was accurate. The Board advised the Federation that the "unprofessional conduct" statement was "a true, fair, and accurate description of the Agreed Order." The Federation declined to remove the statement from its website. Thereafter, Day sued the Federation for defamation and tortious interference with prospective business relations.

         The Federation moved to dismiss Day's suit pursuant to the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.003 (providing a party may file a motion to dismiss a legal action based on, related to, or in response to its exercise of the right to free speech). The Federation's motion was supported by the affidavit of Scott Freshour, the Board's interim executive director, and other evidence. Day filed a response to the motion to dismiss, to which he attached his own affidavit and other evidence. After a hearing, the trial court signed an order granting Day's motion to dismiss. This appeal followed.

         Dismissal under the TCPA

         Commonly referred to as an anti-SLAPP[1] law, the TCPA "protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015); see KBMT Operating Co., LLC v. Toledo, 492 S.W.3d 710, 713 n.6 (Tex. 2016). When a plaintiff brings a claim that infringes on a defendant's right to speak on a matter of public concern, the TCPA authorizes a defendant to file a motion to dismiss. See Toledo, 492 S.W.3d at 713; In re Lipsky, 460 S.W.3d at 584. In deciding whether a plaintiff's claim should be dismissed under the TCPA, the trial court considers the pleadings as well as supporting and opposing affidavits. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a).

         Dismissal of a claim under the TCPA generally involves a two-step process. Id. at 586. The initial burden is on the defendant-movant to show "by a preponderance of the evidence" that the plaintiff's "legal action is based on, relates to, or is in response to the [defendant's] exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b); see In re Lipsky, 460 S.W.3d at 586. "'Exercise of the right of free speech' means a communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3). A "[m]atter of public concern" "includes an issue related to health or safety." Id. § 27.001(7)(A). This initial step is commonly referred to as establishing the applicability of the TCPA. See Lippincott v. Whisenhunt, 462 S.W.3d 507, 510 (Tex. 2015) (recognizing that after the defendants "successfully demonstrated the applicability of the [TCPA]" the court of appeals must consider whether the plaintiff "met the prima facie burden the [TCPA] requires.").

         If the defendant meets its initial burden, then the burden shifts to the plaintiff to establish "by clear and specific evidence a prima facie case for each essential element of the claim in question." Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c); In re Lipsky, 460 S.W.3d at 587. A prima facie showing "refers to evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted." In re Lipsky, 460 S.W.3d at 590. A prima facie showing is the "minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true." Id.

         We review de novo a trial court's ruling on a motion to dismiss filed pursuant to the TCPA. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018); Robert B. James, DDS, Inc. v. Elkins, 553 S.W.3d 596, 603 (Tex. App.-San Antonio 2018, pet. denied).

         Denial of Motion to Strike

         In support of its motion to dismiss, the Federation submitted the affidavit of the Texas Medical Board's interim executive director, Scott Freshour. Day filed a motion to strike Freshour's affidavit, arguing "a court cannot go outside the order itself in reviewing the content of the order and the agency action therein." The trial court denied the motion to strike. In his third issue, Day argues the trial court erred in denying his motion to strike, claiming Freshour's affidavit "improperly presented evidence outside the four corners of the [Agreed Order.]"

         We review a trial court's evidentiary ruling, such as its ruling on a motion to strike an affidavit, for an abuse of discretion. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 727 (Tex. 2016); Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Co., 472 S.W.3d 744, 754 (Tex. App.-Houston [1st Dist.] 2015, no pet.). Here, the trial court acted well within its discretion in denying Day's motion to strike. First, the TCPA expressly authorizes the trial court to consider affidavits in deciding a motion to dismiss. Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a) ("In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based."). Second, in his motion to strike, Day cited Morgan Drive Away, Inc. v. R.R. Comm'n of Tex., 498 S.W.2d 147, 152 (Tex. 1973), but Morgan does not apply to the present case. In Morgan, the supreme court recognized, in the context of an appeal of an administrative order, that the reviewing court could "consider only what was written by the Commission in its order" and "measure its statutory sufficiency by what [the order] says." Id. at 149, 152. This rule does not apply to appellate review of a dismissal order under the TCPA.

         Because the trial court did not abuse its discretion in denying Day's motion to strike Freshour's affidavit, we overrule Day's third issue.

         Applicability of the TCPA

         In his second issue, Day argues the trial court erred in granting the Federation's motion to dismiss because the Federation failed to show that the TCPA applies to his claims. Whether the parties have satisfied their respective burdens under the TCPA is an issue that we review de novo. Elkins, 553 S.W.3d at 603.

         In arguing that the TCPA does not apply to his claims, Day argues that "[t]ypically, SLAPP suits are filed by large businesses and other deep-pocketed entities to silence criticism aimed at them by average citizens," but in this case the "corporate goliath seeking to suppress the [First] [A]mendment rights of a small, helpless [p]laintiff simply does not exist."[2] However, Day misstates the criteria for determining the applicability of the TCPA. To establish the applicability of the TCPA, the Federation was required to prove, by a preponderance of the evidence, that Day's lawsuit was based on, related to, or was in response to the Federation's exercise of the right of free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b). The pleadings and the affidavits establish that Day's suit was based on a communication-a statement made on the Federation's website-and that this communication was made in connection with a matter of public concern- a state licensing board's action concerning Day's medical license. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7)(A) (defining "a matter of public concern" as including an issue related to "health or safety"); Lippincott, 462 S.W.3d at 510 ("We have previously acknowledged that the provision of medical services by a health care professional constitutes a matter of public concern."). Therefore, the Federation satisfied its initial burden to show the applicability of the TCPA. See Lippincott, 462 S.W.3d at 509-10 (concluding hospital administrators demonstrated the applicability of the TCPA when they were sued for defamation and tortious interference based on emails they had sent concerning whether a nurse had properly provided medical services to patients); Memorial Hermann ...


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