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Rouzier v. Biote Medical, LLC

Court of Appeals of Texas, Fifth District, Dallas

November 22, 2019

NEAL ROUZIER, M.D., Appellant
v.
BIOTE MEDICAL, LLC, Appellee

          On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-09135

          Before Justices Pedersen, III, Reichek, and Carlyle

          MEMORANDUM OPINION

          AMANDA L. REICHEK JUSTICE

         This is an interlocutory appeal from the trial court's order denying Neal Rouzier, M.D.'s motion to dismiss BioTE Medical, LLC's claims under the Texas Citizen's Participation Act (TCPA).[1] Rouzier brings six issues contending that, (1) he established the TCPA applied to the claims asserted against him, (2) BioTE failed to prove the commercial speech exemption to the TCPA applied, (3) BioTE failed to present clear and specific evidence supporting its causes of action, (4) BioTE specifically failed to provide evidence of causation and damages, (5) BioTE's claims are preempted by the Texas Uniform Trade Secret Act (TUTSA), and (6) the trial court erred in failing to rule on his objections to BioTE's evidence submitted in response to the motion to dismiss. We affirm the trial court's judgment.

         Factual Background

         BioTE brought this suit against Rouzier asserting claims for breach of fiduciary duty, misappropriation of trade secrets, and common law misappropriation. According to its original petition, BioTE is in the business of hormone replacement therapy with a focus on licensing its products, systems, and software to physicians and physician groups across the United States. BioTE asserted that Rouzier began working with the company as a faculty member training doctors and their staff on BioTE's products, policies, and procedures. Rouzier was eventually promoted to BioTE's advisory board. BioTE stated that, during Rouzier's tenure with the company, BioTE provided Rouzier with confidential and proprietary information.

         Sometime in 2018, Rouzier ceased working for BioTE and BioTE asserts Rouzier was "lured away by the company's competitor, EvexiPEL." At EvexiPEL, Rouzier worked in the same capacity he did at BioTE, which included lecturing to medical providers about hormone therapy. BioTE alleged in its petition that Rouzier and EvexiPEL were using stolen intellectual property to compete with BioTE. Specifically BioTE alleged that Rouzier acted in concert with EvexiPEL to, among other things, (1) "identify, locate, and unlawfully solicit BioTE's contracted physicians and physician groups and persuade them to break their binding and valuable licensing and management contracts," (2) "misappropriate trade secrets," (3) "solicit others to usurp the business opportunities of BioTE," and (4) "engage in, and solicit others to engage in, unfair competition."

         Approximately two months after BioTE filed suit, Rouzier filed a motion to dismiss the case in its entirety under the TCPA, contending BioTE's claims were based on, related to, or in response to his exercise of his rights of free speech and association. Rouzier argued that BioTE's allegations that he made representations regarding the hormone therapy business implicated his freedom of speech and the company's claims that he conspired with EvexiPEL implicated his right of association. Rouzier further argued that BioTE could not meet its burden under the TCPA to establish a prima facie case for each essential element of its claims and the company's misappropriation claims were preempted by TUTSA. Rouzier did not submit any evidence in support of his motion, but instead contended BioTE's pleadings clearly established its suit was covered by the TCPA.

         In response to the motion, BioTE requested, and the trial court granted, limited discovery pertaining to the TCPA motion which included a deposition of Rouzier. BioTE then filed its response contending Rouzier had not met his burden to show the TCPA applied and that dismissal was precluded under the TCPA's commercial speech exemption. BioTE also argued it met its burden to provide clear and specific evidence supporting each element of its claims. Attached to BioTE's response were the affidavits of two BioTE executives and excerpts from Rouzier's deposition. Rouzier asserted objections to portions of the affidavit evidence, but the trial court never ruled on the objections. Rouzier also filed a reply attaching the entirety of Rouzier's deposition.

         The trial court conducted a hearing on the motion to dismiss on January 16, 2019. By order dated February 8, the court denied the motion and Rouzier brought this appeal.

         Analysis

         I. The TCPA

         In his first two issues, Rouzier contends the trial court erred in denying his motion to dismiss under the TCPA because BioTE's claims against him were based on, related to, and/or in response to his exercise of his rights of free speech and association and the Act's exemption for commercial speech did not apply. The TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them. In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015) (orig. proceeding). The stated 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 and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." Tex. Civ. Prac. & Rem. Code Ann. § 27.002; ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (per curiam). We construe the TCPA "liberally to effectuate its purpose and intent fully." Tex. Civ. Prac. & Rem. § 27.011(b); State ex rel. Best v. Harper, 562 S.W.3d 1, 11 (Tex. 2018).

         To effectuate the statute's purpose, the Legislature provided a procedure to expedite the dismissal of claims brought to intimidate or silence a defendant's exercise of first amendment rights. Coleman, 512 S.W.3d at 898; see also Tex. Civ. Prac. & Rem. Code Ann. §§ 27.003(a), .005(b); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018). The movant bears the initial burden of showing by a preponderance of the evidence that the legal action is based on, related to, or in response to the movant's exercise of the right of free speech, the right of association, or the right to petition. Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b); S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). If the movant makes this showing, the burden shifts to the non-movant to establish by clear and specific evidence a prima facie case for each essential element of its claims. Tex. Civ. Prac. & Rem. Code Ann. ยง ...


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