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Noble Anesthesia Partners, PLLC v. U.S. Anesthesia Partners, Inc.

Court of Appeals of Texas, Fifth District, Dallas

July 9, 2019

NOBLE ANESTHESIA PARTNERS, PLLC, Appellant
v.
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, PINNACLE ANESTHESIA TEXAS, PLLC, TRINITY ORTHOPEDICS, PLLC, AND LARRY KJELDGAARD, D.O., Appellees

          On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-09602

          Before Justices Myers, Osborne, and Nowell

          MEMORANDUM OPINION

          ERIN A. NOWELL, JUSTICE

         Noble 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.

         In five 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.

         Background

         Noble 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, [1] 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[2] 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.

         Noble 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."

         Noble 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 appeal followed.

         Law & Analysis

         Under 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. § 27.001(1).

         Reviewing 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. § 27.005(d).

         We 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).

         As the 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, ...


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