Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 298th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-09602
Justices Myers, Osborne, and Nowell
A. NOWELL, JUSTICE
Anesthesia Partners, PLLC (Noble) sued U.S. Anesthesia
Partners, Inc.; U.S. Anesthesia Partners of Texas, P.A.,
Individually and/or d/b/a USAP-Texas and/or d/b/a Vital Pain
Care; U.S.A.P., LLC; and Pinnacle Anesthesia Texas, PLLC
(collectively, USAP) as well as Trinity Orthopedics, PLLC and
Larry Kjeldgaard, D.O. (collectively, Trinity) for tortious
interference with an existing business relationship. USAP and
Trinity filed motions to dismiss pursuant to the Texas
Citizens Participation Act (the TCPA). See Tex. Civ.
Prac. & Rem. Code Ann. §§ 27.001-.011.
Following a hearing, the trial court granted the motions.
issues on appeal, Noble asserts the trial court erred by
granting the motions to dismiss, awarding attorney's fees
to Trinity and USAP, and not awarding attorney's fees to
Noble. We conclude USAP and Trinity failed to establish the
TCPA applies to Noble's claim. Accordingly, we reverse
the trial court's orders granting Trinity's and
USAP's motions to dismiss and awarding attorney's
fees to those parties. We remand the case to the trial court
for further proceedings.
and USAP both provide anesthesia services to physicians.
Trinity is a group of orthopedic surgeons; Kjeldgaard is
Trinity's head orthopedic surgeon. Noble alleges that in
2014, it began providing anesthesia services to Dr. Scott
Gibson,  a Trinity employee, and, pursuant to an
oral contract, subsequently became Gibson's exclusive
anesthesia provider. In March 2016, Trinity approached Noble
and proposed Noble could provide anesthesia services to
several Trinity surgeons. Kjeldgaard "prefaced the
proposal with the statement that Trinity Orthopedics wanted
to 'monetize' anesthesia services provided to Trinity
Orthopedics." Kjeldgaard allegedly told Noble that
"Grapevine Anesthesia, PLLC had offered to provide
anesthesia services to Trinity Orthopedics with payments to
Trinity Orthopedics on certain high value out-of-network
commercial payor cases in exchange for the agreement that
Trinity Orthopedics would send all of its remaining cases to
one or more of the Defendants." Kjeldgaard's wife
advised Noble that if it would match or improve upon the
proposal from Grapevine Anesthesia, then Noble would be
awarded all anesthesia procedures associated with surgeries
conducted by Trinity's physicians.
declined the "improper proposal," which it asserts
involves "improper kickbacks, bribes, and/or discounts
under the federal anti-kickback statutes," and Trinity
awarded its anesthesia services to another provider. However,
Gibson continued using Noble pursuant to the parties'
oral contract. The petition states that in November 2016,
"Dr. Gibson advised Noble that Dr. Kjeldgaard demanded
that he terminate Noble for anesthesia services and insisted
that he instead utilize" USAP. "After Noble
complained, it was allowed to continue providing anesthesia
services to Dr. Gibson for a short period of time. Within
weeks thereafter[, ] Dr. Gibson capitulated to Dr.
Kjeldgaard's demands, and withdrew all anesthesia
services from Noble effective as of January 1, 2017."
Noble's petition continues: "But for the
interference by Dr. Kjeldgaard and the other Defendants [sic]
illegal kickback scheme[, ] Noble would not have been
terminated by Dr. Gibson."
sued Trinity and USAP for tortuously interfering with its
existing business relationship, including its oral contract,
with Gibson. Trinity filed a motion to dismiss pursuant to
the TCPA asserting the lawsuit arises from its protected
freedom of association. USAP also filed a motion to dismiss
pursuant to the TCPA, stating it joined Trinity's motion.
After conducting a hearing, the trial court granted the
motions to dismiss. The trial court also awarded
attorney's fees and costs to Trinity and USAP. This
the TCPA, a party may file a motion to dismiss a legal action
that is based on, related to, or in response to the
party's exercise of the right of free speech, right to
petition, or right of association. Tex. Civ. Prac. & Rem.
Cod Ann. § 27.003(a). Trinity's motion, which USAP
joined, asserted Noble's legal action is based on its
right of association. The TCPA defines the "exercise of
the right of association" as "a communication
between individuals who join together to collectively
express, promote, pursue, or defend common interests."
Id. § 27.001(2). A "communication" is
"the making or submitting of a statement or document in
any form or medium, including oral, visual, written,
audiovisual, or electronic." Id. §
a TCPA motion to dismiss requires a three-step analysis.
Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex.
2018). Initially the moving party must show by a
preponderance of the evidence that the TCPA applies to the
legal action against it, meaning, the legal action is based
on the defendant's exercise of rights defined in the
TCPA. See Tex. Civ. Prac. & Rem. Cod Ann. §
27.005(b). If the movant meets its burden, the nonmoving
party must establish by clear and specific evidence a prima
facie case for each essential element of its claim.
Id. § 27.005(c). If the nonmoving party
satisfies that requirement, the burden shifts back to the
movant to prove each essential element of any valid defenses
by a preponderance of the evidence. Id. §
review de novo the trial court's determinations that the
parties met or failed to meet their burdens of proof under
section 27.005. Campbell v. Clark, 471 S.W.3d 615,
623 (Tex. App.-Dallas 2015, no pet.). "In conducting
this review, we consider, in the light most favorable to the
non-movant, the pleadings and any supporting and opposing
affidavits stating the facts on which the claim or defense is
based." Fishman v. CO.D. Capital Corp., No.
05-16-00581-CV, 2017 WL 3033314, at *5 (Tex. App.-Dallas July
18, 2017, no pet.) (mem. op.); see also Tex. Civ.
Prac. & Rem. Code Ann. § 27.006(a).
movants, Trinity and USAP were required to show by a
preponderance of the evidence that the TCPA applies to
Noble's legal action. Tex. Civ. Prac. & Rem. Code
Ann. § 27.003(a). In its first and third issues, Noble
argues, in part, that Trinity and USAP failed to meet their
burden to demonstrate by a preponderance of the evidence that
Noble's legal action is based on, ...