Court of Appeals of Texas, Fourth District, San Antonio
Calvin DAY, Jr. M.D., Appellant
FEDERATION OF STATE MEDICAL BOARDS OF THE UNITED STATES, INCORPORATED, Appellee
the 288th Judicial District Court, Bexar County, Texas Trial
Court No. 2018-CI-05000 Honorable Antonia Arteaga, Judge
Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Beth
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.
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.
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.
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
Basis: Unprofessional Conduct
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.
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.
under the TCPA
referred to as an anti-SLAPP 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).
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]
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.
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).
of Motion to Strike
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
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.
the trial court did not abuse its discretion in denying
Day's motion to strike Freshour's affidavit, we
overrule Day's third issue.
of the TCPA
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.
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." 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