Court of Appeals of Texas, Third District, Austin
Neurodiagnostic Consultants, LLC d/b/a Synaptic Resources of Austin, LLC, a Texas Limited Liability Company, Appellant
Corey Villalobos, Appellee
THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO.
D-1-GN-17-004696, THE HONORABLE GISELA D. TRIANA, JUDGE
Chief Justice Rose, Justices Kelly and Smith
appeal concerns a defamation claim by Neurodiagnostic
Consultants, LLC d/b/a Synaptic Resources of Austin, LLC
(Synaptic), against Corey Villalobos, a former employee. The
claim arose from a comment concerning Synaptic that
Villalobos left on a post in a LinkedIn group. Synaptic
alleged that Villalobos falsely accused Synaptic of engaging
in criminal activity. The district court dismissed
Synaptic's claim under the Texas Citizens Participation
Act (TCPA). See Tex. Civ. Prac. & Rem. Code
§§ 27.001-.011. We will affirm the district
supplies intraoperative neuromonitoring services (IONM) to
hospitals, clinics, and surgeons. This means that a
technologist, hired and trained by Synaptic, uses specialized
equipment to monitor the integrity of a patient's nervous
system during surgery. In January 2015, Synaptic hired
Villalobos as a technologist and, one year later, promoted
him to a field manager position. Villalobos left Synaptic in
September 2016 and immediately began working for Traxx, a
newly formed competitor of Synaptic. Synaptic subsequently
sued Villalobos, Traxx, and several other defendants. In
general, Synaptic alleged that before leaving Synaptic,
Villalobos coordinated with Traxx officers and employees to
harm Synaptic and benefit Traxx.
and Jon Schiff, President of Synaptic, both had access to a
LinkedIn group called "Surgical Neurophysiology &
Neuromonitoring." While the lawsuit was ongoing,
Villalobos commented on a post there from Neuro News. This
post was titled "Medical Board says Austin surgeon took
neuromonitoring kickbacks-Growth in neuromonitoring driven
mainly by crooks. The final blow-out?" The post linked
to an article from the Austin American Statesman titled
"Medical board says Austin surgeon took neuromonitoring
kickbacks." The text of the Statesman's article is
not in the record, but Schiff described its contents in an
The subject of this article was that the Texas Medical Board
had accused a neurosurgeon of misleading patients and
violating anti-kickback laws as he referred his patients to a
neuromonitoring company in which he had a financial interest.
National Neuromonitoring Services, which is a direct
competitor of Synaptic, was implicated in the article. The
article further stated an anonymous person had sent letters
containing allegations against the physician to the
left the following comment below the Neuro News post:
"It's said that the 'anonymous' person is
Jon Schiff, president of [S]ynaptic [R]esources. They are
equally as dirty [a] company. And do these things to get
surgeons to switch to their company."
subsequently amended its pleadings to sue Villalobos for
defamation. Specifically, Synaptic alleged Villalobos falsely
stated Synaptic "engages in illegal conduct, including
providing illegal kickbacks, to develop business."
Villalobos filed a motion to dismiss that claim under the
TCPA. Synaptic filed a response and attached Schiff's
affidavit and a screenshot of the LinkedIn post and
Villalobos' comment. The district court dismissed the
defamation claim, which was then Synaptic's only
remaining cause of action. This appeal ensued. See Tex.
Civ. Prac. & Rem. Code § 51.014(a)(12) (authorizing
accelerated appeal from interlocutory order denying TCPA
motion to dismiss).
purpose of the TCPA is to "encourage and safeguard the
constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in government to
the maximum extent permitted by law" while still
"protect[ing] the rights of a person to file meritorious
lawsuits for demonstrable injury." Id. §
27.002; see id. § 27.001(2)-(4) (defining
exercise of protected rights). To effectuate this purpose,
the Legislature has provided for a special motion to dismiss
designed to expedite the dismissal of claims brought to
intimidate or to silence a party's exercise of the
protected rights. ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam).
a TCPA motion to dismiss requires a three-step
analysis." Youngkin v. Hines, 546 S.W.3d 675,
679 (Tex. 2018). As a threshold matter, the moving party must
show by a preponderance of the evidence that the TCPA
properly applies to the legal action against it. Tex. Civ.
Prac. & Rem. Code § 27.005(b). If the moving party
meets that burden, the nonmoving party must establish
"by clear and specific evidence a prima facie case for
each essential element of the claim in question."
Id. § 27.005(c). If the nonmoving party
satisfies that requirement, the burden shift backs to the
moving party to prove each essential element of any valid
defense by a preponderance of the evidence. Id.
determining whether to dismiss a legal action under the TCPA,
courts are to consider, as evidence, "the pleadings and
supporting and opposing affidavits stating the facts on which
the liability or defense is based." Id. §
27.006(a). We review de novo whether each party carried its
assigned burden. Long Canyon Phase II & III