Disparagement lawsuit not a health-care-liability claim just because a doctor and a pharmacist are feuding

———————————— NO. 01-16-00856-CV ———————————

 GHYASUDDIN SYED, M.D. AND SOUTHEAST TEXAS INSTITUTE OF PAIN MANAGEMENT, P.A., Appellants V. PHU HUU NGUYEN, PHARM. D., PLLC D/B/A WELLNESS PHARMACY AND PHU “PAUL” HUU NGUYEN, Appellees On Appeal from the 133rd District Court Harris County, Texas Trial Court Case No. 2015-64778 

MEMORANDUM OPINION

GHYASUDDIN SYED, M.D. AND SOUTHEAST TEXAS INSTITUTE OF PAIN MANAGEMENT, P.A., Appellants,
v.
PHU HUU NGUYEN, PHARM. D., PLLC D/B/A WELLNESS PHARMACY AND PHU "PAUL" HUU NGUYEN, Appellees.

No. 01-16-00856-CV.

Court of Appeals of Texas, First District, Houston.

Opinion issued September 21, 2017.

Jeffrey Wigginton, Jr., Steven J. Knight, Christine Kirchner, for Phu Huu Nguyen, Pharm. D. PLLC d/b/a Wellness Pharmacy and Phu "Paul" Huu Nguyen, Appellee.

Stephen Robinson, Susan Elizabeth Briones, T. Marc Calvert, for Dr. Ghyasuddin Syed and Southeast Texas Institute of Pain Management, P.A., Appellant.

On Appeal from the 133rd District Court, Harris County, Texas, Trial Court Case No. 2015-64778.

Panel consists of Justices Jennings, Bland, and Brown.

MEMORANDUM OPINION

TERRY JENNINGS, Justice.

In this interlocutory appeal,^[1] appellants, Ghyasuddin Syed, M.D. and Southeast Texas Institute of Pain Management, P.A. ("STIPM"), challenge the trial court's order denying their motion to dismiss^[2] the claims brought against them by appellees, Phu Huu Nguyen, Pharm. D., PLLC, doing business as Wellness Pharmacy ("Wellness Pharmacy"), and Phu "Paul" Huu Nguyen, for slander, tortious interference with existing and prospective business relationships, and business disparagement. In their sole issue, appellants contend that the trial court erred in denying their motion to dismiss, in which they asserted that appellees' claims are health care liability claims^[3] and appellees did not serve them with an expert report as required by the Texas Medical Liability Act ("TMLA").^[4]

We affirm.

Background

In their petition, appellees allege that Nguyen, a licensed pharmacist, owns Wellness Pharmacy, a licensed pharmacy that from 2007 until March 2014 "was a tenant of the Baytown Primary Medical Tower" (the "Medical Tower") in Baytown, Texas. In 2009, Dr. Syed, who owns and operates STIPM, another tenant in the Medical Tower, purchased the Medical Tower and became Wellness Pharmacy's landlord. After purchasing the Medical Tower, Syed increased Wellness Pharmacy's rent to an "above market rate[]" and imposed "burdensome overhead fees" on Wellness Pharmacy.

In March 2013, Nguyen became concerned about Wellness Pharmacy's "viability" if it were to stay a tenant in the Medical Tower. When he approached Dr. Syed to express "his concerns about the increasing rents, the disproportional overhead fees to maintain the building's common areas, the dwindling number of physicians located in the [Medical Tower] and the drastic decrease in the number of" Wellness Pharmacy customers because of the "departures of physicians and their practices [from the Medical Tower]," Nguyen was "met with retaliation." And Syed told Nguyen, "If [Wellness Pharmacy] move[s], I will no longer allow my patients to fill their prescriptions" there. (Internal quotations omitted.)

In March 2014, Wellness Pharmacy left the Medical Tower and moved to another location in Baytown, Texas.^[5] Wellness Pharmacy then began to experience a decrease in the number of customers, particularly those persons "who were under Dr. Syed's medical care." For instance, before Wellness Pharmacy left the Medical Tower, Syed's patients "routinely filled their prescriptions at Wellness [Pharmacy]," and from January 1, 2013 to December 31, 2013, Wellness Pharmacy filled 10,570 prescriptions written by Syed for his patients. After its relocation, however, from January 1, 2014 to December 31, 2014, Wellness Pharmacy filled only 6,094 prescriptions written by Syed for his patients. And from January 1, 2015 to September 24, 2015, Wellness Pharmacy filled only 1,629 prescriptions written by Syed for his patients.

Appellees further allege that after Wellness Pharmacy's relocation away from the Medical Tower, Dr. Syed began "intentionally engag[ing] in a pattern of conduct calculated to force [appellees] to close [the pharmacy's] doors." More specifically, Syed "intentionally and maliciously [sought to] divert[] business away from Wellness [Pharmacy] to other pharmacies, including a [new] pharmacy located in [the Medical Tower]." And he falsely told his patients, who had been Wellness Pharmacy customers, that Nguyen was "engaging in illegal conduct," Nguyen "was in a lot of trouble," and Wellness Pharmacy "w[ould not] be around much longer." (Internal quotations omitted.)

According to appellees, Wellness Pharmacy customers have told them that "Dr. Syed [is] forcing [them] to use" the new pharmacy in the Medical Tower and "intimidat[ing]" them into no longer filling their prescriptions with Wellness Pharmacy. (Internal quotations omitted.) And Syed told some Wellness Pharmacy customers that he will no longer "see" them if they continue to use Wellness Pharmacy and "someone will be watching where" their prescriptions are being filled. (Internal quotations omitted.)

In regard to their claim of slander, appellees allege that appellants have "defamed Nguyen by accusing [him]," the "lead licensed pharmacist" and owner of Wellness Pharmacy, of "engaging in illegal conduct" and being "in a lot of trouble." Appellants have "published" false statements "imputing criminal misconduct on . . . Wellness [Pharmacy]" and Nguyen, thereby injuring appellees' relationships with their customers. And the false statements made by appellants, "without legal justification," were "intended to, and in fact did, humiliate, disgrace, degrade, and impeach Nguyen's reputation, integrity, and virtue" and were defamatory per se.

In regard to their claims of tortious interference with existing and prospective business relationships, appellees allege that appellants have "intentionally and maliciously interfered with existing business relationships between Wellness [Pharmacy] and its [customers] as well as [its] prospective relationships [with new customers]." "As a direct and proximate result of [appellants'] publication of defamatory statements" and their actions seeking to prohibit Wellness Pharmacy customers "from [continuing to] fill[] their prescriptions" at the pharmacy, appellees have "endured shame, embarrassment, humiliation, mental pain, and anguish." And they have, and will in the future, suffer injury to their business, reputation, and "standing in the community."

In regard to their claim of business disparagement, appellees allege that appellants, "despite knowledge of the truth," have "made malicious and reckless statements about [appellees] in bad faith by publishing false and disparaging information." Appellants communicated these statements "knowing [that] they were false" and/or with a "reckless disregard for the truth." They made them with "ill-will," "intending to interfere with [appellees'] relationships" with Wellness Pharmacy customers and appellees' "economic interests in those relationships." Appellants have "played a substantial part in" causing Wellness Pharmacy customers to "ceas[e]" "deal[ing] with [the pharmacy]." And appellants have "preclude[ed]" customers "from seeking pharmaceutical services and counseling at Wellness [Pharmacy]." As a result, appellees have suffered damages, including lost profits and lost dealings.

Appellants answered, generally denying appellees' allegations and asserting various affirmative defenses. Nine months later, appellants moved to dismiss appellees' claims against them for failure to serve appellants with an expert report as required by the TMLA.

^[6] Appellants asserted that appellees' claims against them for slander, tortious interference with existing and prospective business relationships, and business disparagement are "health care liability claims"^[7]governed by the TMLA, and as such, appellees were required to "serve an expert report upon [appellants] within 120-days of [appellants] filing an [a]nswer."^[8]According to appellants, appellees' "entire petition is replete with references to medical standards of care, patient-physician and/or patient[-]pharmacy relationships, and damages related to conversations which contemplate medical standards and practices related to prescribing authority." "There is simply no construction of [appellees'] claims that could possibly fall outside of" the TMLA. Because appellees were required to serve an expert report in the instant case and did not do so, their claims against appellants must be dismissed.^[9]

In response to appellants' motion to dismiss, appellees asserted that their claims for slander, tortious interference with existing and prospective business relationships, and business disparagement are not health care liability claims^[10]governed by the TMLA. Instead, appellees' claims arise from appellants' intentional and "calculated" conduct intended to "disparage . . . Nguyen as a pharmacist," "undermine Wellness Pharmacy," and "destroy [appellees'] business." More specifically, appellees asserted that appellants "slandered [appellees'] name[s] and reputation[s] to dozens of" their customers "and others" by claiming that appellees were "conducting illegal or untoward activities"; "intimidated and threatened" appellees' customers; and "sent prescription requests to other pharmacies," although Wellness Pharmacy customers had "requested" that their prescriptions be sent to it to be filled.^[11]

Standard of Review

Generally, we review a trial court's decision on a motion to dismiss a health care liability claim for an abuse of discretion. See Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 875 (Tex. 2001). Whether a claim is a health care liability claim, however, is a question of law that is reviewed de novo. Loaisiga v. Cerda, 379 S.W.3d 248, 254-55 (Tex. 2012); Hunsucker v. Fustok, 238 S.W.3d 421, 425 (Tex. App.-Houston [1st Dist.] 2007, no pet.). We consider the entire record, including the pleadings, motions, responses, and relevant evidence properly admitted. Loaisiga, 379 S.W.3d at 258; Cage v. Methodist Hosp., 470 S.W.3d 596, 600 (Tex. App.-Houston [1st Dist.] 2015, no pet.). If the record does not affirmatively show that the plaintiffs' claims are health care liability claims, the statutory expert-report requirements do not apply. See Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496, 505 (Tex. 2015).

Health Care Liability Claims

In their sole issue, appellants argue that the trial court erred in denying their motion to dismiss because appellees have asserted health care liability claims and did not serve them with an expert report as required by the TMLA.

The TMLA provides that a "claimant" in a "health care liability claim" must serve an expert report on a defendant no later than 120 days after the date of the defendant's original answer. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon 2017); see also id. § 74.001(a)(2) (Vernon 2017) ("Claimant means a person . . . seeking or who has sought recover of damages in a health care liability claim. All persons claiming to have sustained damages as the result of the bodily injury or death of a single person are considered a single claimant."). An expert report summarizes the expert's opinion "regarding applicable standards of care, the manner in which the care rendered by the physician or health care provider failed to meet the standards, and the causal relationship between that failure and the injury, harm, or damages claimed." Id. § 74.351(r)(6). If the claimant does not serve the report within the specified period, the trial court must dismiss the health care liability claim on the defendant's motion and award the defendant reasonable attorney's fees. Id. § 74.351(b).

The expert-report requirement of the TMLA applies to a plaintiff's claims, when they come within the statutory definition of a "health care liability claim." A health care liability claim is defined as:

[A] cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care, which proximately results in injury to or death of a claimant, whether the claimant's claim or cause of action sounds in tort or contract.

Id. § 74.001(a)(13). This definition has three essential elements: (1) the defendant must be a health care provider or physician; (2) the claimant's cause of action must be for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care; and (3) the defendant's alleged departure from these accepted standards must have proximately caused the claimant's injury or death. See Loaisiga, 379 S.W.3d at 255. "Whether a claim is a health care liability claim depends on the underlying nature of the claim being made." Yamada v. Friend, 335 S.W.3d 192, 196 (Tex. 2010). We focus on the essence of the claims and consider the alleged wrongful conduct and the duties allegedly breached. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005); Tex. Cypress Creek Hosp., L.P. v. Hickman, 329 S.W.3d 209, 214 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). It is well settled that a health care liability claim cannot be recast as another cause of action to avoid the requirements of the TMLA. Diversicare, 185 S.W.3d at 851; see also Hunsucker, 238 S.W.3d at 426.

Appellants argue that appellees' claims of slander, tortious interference with existing and prospective business relationships, and business disparagement constitute health care liability claims because they are "inseparably related to the . . . health care services" provided by both appellants and appellees. More specifically, appellees have brought claims "against a health care provider or physician," which concern "treatment or lack of treatment (prescriptions specifically)." And appellees' petition "is replete with references to patient care, treatment decisions, issues covered by statutes covering physician care and patient safety, and testimony from patients about alleged statements made during and related to the provision of medical care." According to appellants, the issues in the instant case "clear[ly]" involve "[the] standard of care and health care liability" and "the claims and defenses" at issue concern "patient health care and safety." "Appellees are making claims that treatment in the form of prescribing resulted in injury to the claimant. That the injury was not a physical injury, but a financial one, is irrelevant."

In response, appellees assert that their claims are not health care liability claims. Instead, they have brought claims against appellants for slander, tortious interference with existing and prospective business relationships, and business disparagement after Dr. Syed "published false statements to third parties that Nguyen [had] engaged in illegal conduct." Although Syed "happens to be a physician" and some of the witnesses to his conduct happen to be his patients, this does not render appellees' claims health care liability claims.

In determining whether a claim constitutes a health care liability claim, we must "be careful not to extend the TMLA beyond its stated bounds." Shanti v. Allstate Ins. Co., 356 S.W.3d 705, 716 (Tex. App.-Houston [14th Dist.] 2011, pet. denied); Theroux v. Vick, 163 S.W.3d 111, 113 (Tex. App.-San Antonio 2005, pet. denied). Clearly, not every action taken by a physician or health care provider falls within the ambit of the TMLA, and claims do not necessarily amount to health care liability claims merely because they arise in a health care setting. Shanti, 356 S.W.3d at 716; Pallares v. Magic Valley Elec. Coop., Inc., 267 S.W.3d 67, 71 (Tex. App.-Corpus Christi 2008, pet. denied); Theroux, 163 S.W.3d at 113; see, e.g., Lowry v. Tarbox, No. 04-11-00394-CV, 2011 WL 5080306, at *1-2 (Tex. App.-San Antonio Oct. 26, 2011, pet. denied) (mem. op.). Instead, to fall under the purview of the TMLA, allegations against a health care provider or physician must concern an inseparable part of the rendition of medical services. Diversicare, 185 S.W.3d 848; Shanti, 356 S.W.3d at 711-13. One consideration in determining whether a claim constitutes a health care liability claim is whether proving the claim would require the specialized knowledge of a medical expert. Garland Cmty. Hosp. v. Rose, 156 S.W.3d 541, 544 (Tex. 2004); see also Cardwell v. McDonald, 356 S.W.3d 646, 655 (Tex. App.-Austin 2011, no pet.) ("The necessity of expert testimony from a medical professional to prove a cause of action may . . . be an important factor in determining whether the acts or omissions are an inseparable part of the rendition of medical services.").

Although we are not bound by appellees' pleadings, a review of their allegations is helpful in evaluating whether their claims against appellants are health care liability claims that have simply been recast as claims of slander, tortious interference with existing and prospective business relationships, and business disparagement. See Fudge v. Wall, 308 S.W.3d 458, 462 (Tex. App.-Dallas 2010, no pet.); see also Loaisiga, 379 S.W.3d at 258 (considering entire record, including pleadings). In their petition, appellees allege that after Wellness Pharmacy moved out of the Medical Tower, a building owned by Dr. Syed, he began "intentionally engag[ing] in a pattern of conduct calculated to force [appellees] to close [Wellness Pharmacy's] doors." He "intentionally and maliciously [sought to] divert[] business away from Wellness [Pharmacy] to other pharmacies, including a [new] pharmacy located in [the Medical Tower]." Syed falsely told his patients, who had been Wellness Pharmacy customers, that Nguyen had been "engaging in illegal conduct," Nguyen "was in a lot of trouble," and Wellness Pharmacy "w[ould not] be around much longer." (Internal quotations omitted.)

In regard to their claim of slander, appellees allege that appellants have "defamed Nguyen by accusing [him]," the "lead licensed pharmacist" and owner of Wellness Pharmacy, of "engaging in illegal conduct" and being "in a lot of trouble." Appellants have "published" false statements "imputing criminal misconduct on" appellees, thereby injuring their relationships with Wellness Pharmacy customers. And the false statements made by appellants, "without legal justification," were "intended to, and in fact did, humiliate, disgrace, degrade, and impeach Nguyen's reputation, integrity, and virtue" and were defamatory per se.

In regard to their claims of tortious interference with existing and prospective business relationships, appellees allege that appellants have "intentionally and maliciously interfered with existing business relationships between Wellness [Pharmacy] and its [customers] as well as [its] prospective relationships [with new customers]." "As a direct and proximate result of [appellants'] publication of defamatory statements" and their actions seeking to prohibit Wellness Pharmacy customers "from [continuing to] fill[] their prescriptions" at the pharmacy, appellees have "endured shame, embarrassment, humiliation, mental pain, and anguish." And they have, and will in the future, suffer injury to their business, reputation, and "standing in the community."

In regard to their claim of business disparagement, appellees allege that appellants, "despite knowledge of the truth," have "made malicious and reckless statements about [appellees] in bad faith by publishing false and disparaging information." Appellants communicated these statements "knowing [that] they were false" and/or with a "reckless disregard for the truth." They made them with "ill-will," "intending to interfere with [appellees'] relationships" with Wellness Pharmacy customers and appellees' "economic interests in those relationships." Appellants have "played a substantial part in" causing Wellness Pharmacy customers to "ceas[e]" "deal[ing] with [the pharmacy]." And appellants have "preclude[ed]" customers "from seeking pharmaceutical services and counseling at Wellness [Pharmacy]." As a result, appellees have suffered damages, including lost profits and lost dealings.

Although appellants in this case are health care providers, this is not dispositive of whether appellees' claims against appellants constitute health care liability claims. See Ross, 462 S.W.3d at 504 (not enough "only possible relationship between the conduct underlying the claim and the rendition of medical services or healthcare . . . [is] the defendant's status as a doctor or health care provider"); Pallares, 267 S.W.3d at 71 ("Not every action taken by a health care provider . . . is a health care liability claim."); Theroux, 163 S.W.3d at 113. And the fact that some of Dr. Syed's "intentional[] and malicious[]" conduct intended to harm appellees' business purportedly occurred in the presence of his patients, who were also Wellness Pharmacy customers, does not automatically mean that appellees' claims of slander, tortious interference with existing and prospective business relationships, and business disparagement are health care liability claims.

Here, appellees' pleadings show that the underlying nature of their claims are claims for damages based on Dr. Syed's "intentional[] and malicious[]" conduct intended to decrease the number of Wellness Pharmacy customers, injure appellees' reputation and standing within the community, and force appellees out of business. Appellees' claims are not "cause[s] of action . . . for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, or health care, or safety or professional or administrative services directly related to health care." See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13); cf. Lowry, 2011 WL 5080306, at *1-2 (claims brought by physician against another physician and professional organization for breach of contract and tortious inference did not constitute health care liability claims). Instead, appellees' claims relate to the parties' business relationship and damages resulting from Syed's slanderous, tortious, and disparaging conduct within the context of that business relationship. See Lowry, 2011 WL 5080306, at *1-2 (claims related to "a business dispute in which [one] physician sued [another physician and a professional organization] to recover damages for breach of contract and for tortious acts that were damaging to th[at] physician"). In other words, the acts giving rise to appellees' claims against appellants are not "inseparable" from the rendition of medical services and are not based on a breach of a standard of care applicable to appellants. See Lowry, 2011 WL 5080306, at *2; see also Garland Cmty. Hosp.,156 S.W.3d at 543-46; Fudge, 308 S.W.3d at 463-64.

Moreover, the specialized knowledge of a medical expert will not be necessary in order to prove appellees' claims.^[12] See Garland Cmty. Hosp., 156 S.W.3d at 544; Kindred Healthcare, Inc. v. Morales, 499 S.W.3d 475, 481 (Tex. App.-Houston [1st Dist.] 2016, no pet.); Lowry, 2011 WL 5080306, at *2; see also Baylor Univ. Med. Ctr. v. Lawton, 442 S.W.3d 483, 486 (Tex. App.-Dallas 2013, pet. denied) ("[T]o require an expert report in this case would amount to an exercise in futility."); Shanti, 356 S.W.3d at 713 ("Medical expert testimony would not be required to establish that [defendants] were willing participants in a conspiracy to commit fraud, or that they were engaging in a particular course of business as a means of extorting larger fees from insurers . . . .").

At most, appellees' claims are "merely tangential[ly]" related to the medical services provided by appellants, but even such a characterization of appellees' claims is tenuous at best. See Shanti, 356 S.W.3d at 712-13 (internal quotations omitted); Pallares, 267 S.W.3d at 72; see also Loaisiga, 379 S.W.3d at 256 ("In some instances the only possible relationship between the conduct underlying a claim and the rendition of medical services or healthcare will be the healthcare setting (i.e., the physical location of the conduct in a health care facility), the defendant's status as a doctor or health care provider, or both.").

We conclude that appellees' claims of slander, tortious interference with existing and prospective business relationships, and business disparagement do not constitute health care liability claims. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). 

Accordingly, we hold that the trial court did not err in denying appellants' motion to dismiss.

We overrule appellants' sole issue.

Conclusion

We affirm the order of the trial court.

[1] See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(9) (Vernon Supp. 2016).

[2] See id. § 74.351(b) (Vernon 2017).

[3] See id. § 74.001(a)(13) (Vernon 2017) (defining "[h]ealth care liability claim" (internal quotations omitted)).

[4] See id. § 74.351(a)-(b).

[5] Wellness Pharmacy continued to make payments under the terms of its lease until September 2014.

[6] See id.

[7] See id. § 74.001(a)(13) (defining "[h]ealth care liability claim" (internal quotations omitted)).

[8] See id. § 74.351(a)-(b).

[9] See id.

[10] See id. § 74.001(a)(13) (defining "[h]ealth care liability claim" (internal quotations omitted)).

[11] Appellees also asserted that Wellness Pharmacy is not a "[c]laimant" seeking damages for "[i]njuries" under the TMLA; any expert report that would have been filed "would have been nonsensical" in light of the nature of their claims; and "dismissing [their] claims for failure to provide" such a nonsensical report "would violate[] the Texas Constitution's open courts provision." (Internal quotations omitted.) See id. § 74.001(a)(2) (defining "[c]laimant" (internal quotations omitted)).

[12] Even if medical expert testimony were to "be used to prove [appellees'] claims," this "is not enough to establish [that a claim is] a heath care liability claim." Pallares v. Magic Valley Elec. Coop., Inc., 267 S.W.3d 67, 74-75 (Tex. App.-Corpus Christi 2008, pet. denied).  

Business disparagement and defamation of an individual distinguished (In re Lipsky Tex 2015)

 
TWO DISTINCT TORTS: BUSINESS DISPARAGEMENT AND "CHARACTER ASSASSINATION" (DEFAMATION)
   
Business disparagement and defamation are similar in that both involve harm from the publication of false information. Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014). The respective torts, however, serve different interests.

Whereas “defamation actions chiefly serve to protect the personal reputation of an injured party, [] a business disparagement claim protects economic interests.” Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003). Business disparagement or “injurious falsehood applies to derogatory publications about the plaintiff’s economic or commercial interests.” 3 DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW OF TORTS § 656, at 615 (2d ed. 2011).

The tort does not seek to redress dignitary harms to the business owner, but rather redresses aspersions cast on the business’s commercial product or activity that diminishes those interests. Hurlbut v. Gulf Atl. Life Ins. Co., 749 S.W.2d 762, 766–67 (Tex. 1987).

A corporation or other business entity that asserts a claim for defamation may assert an additional or alternative claim for business disparagement if it seeks to recover economic damages for injury to the business. Burbage v. Burbage, 447 S.W.3d 249, 261 n.6 (Tex. 2014). Impugning one’s reputation is possible without disparaging its commercial interests and vice versa. Depending on the circumstances, then, a plaintiff may have a claim for defamation, or for business disparagement, or both.

ELEMENTS OF BIZ DISPARAGEMENT CAUSE OF ACTION 

“To prevail on a business disparagement claim, a plaintiff must establish that (1) the defendant published false and disparaging information about it, (2) with malice, (3) without privilege, (4) that resulted in special damages to the plaintiff.” Forbes, 124 S.W.3d at 170 (citing Hurlbut, 749 S.W.2d at 766). 

SOURCE: TEXAS SUPREME COURT - No. 13-0928 - IN RE STEVEN LIPSKY 
[Opinion by Justice Divine in pdf] - 4/24/2015 

CITATION: In re Lipsky, No. 13-0928, ___ S.W.3d ___ (Tex. 2015) 

COA OPINION BELOW: In re Lipsky, 411 S.W.3d 530 (Tex.App.-Fort Worth 2013, orig. proceeding)   

IN RE STEVEN LIPSKY

No. 13-0928.

Supreme Court of Texas.

Argued December 4, 2014.

Opinion Delivered: April 24, 2015.

JUSTICE DEVINE delivered the opinion of the Court.

JOHN P. DEVINE, Justice.

The Texas Citizens Participation Act (TCPA)[1] protects citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them. TEX. CIV. PRAC. & REM. CODE §§ 27.001-.011. The protection consists of a special motion for an expedited consideration of any suit that appears to stifle the defendant's communication on a matter of public concern. Id. § 27.003. In reviewing that motion, the trial court is directed to dismiss the suit unless "clear and specific evidence" establishes the plaintiffs' "prima facie case." Id. § 27.005(c). When applying the Act's requirement for clear and specific evidence, however, the courts of appeals disagree about the role of circumstantial evidence.

Some courts hold that only direct evidence is relevant when considering a motion to dismiss under the Act, while others have concluded that relevant circumstantial evidence must also be considered. The court of appeals here considered circumstantial evidence, and we agree that clear and specific evidence under the Act includes relevant circumstantial evidence. 411 S.W.3d 530, 546 (Tex. App.-Fort Worth 2013). We further agree, generally, with the court of appeals's disposition of the proceedings below and accordingly deny all relief requested here.

I. Background and Procedural History

Steven and Shyla Lipsky own several acres in Weatherford, Texas. In 2005 they drilled a well on their property to a depth of about two hundred feet to provide water to a cabin and boathouse. In 2009 they finished a house on the property, connecting the well to their new home. That same year, Range Resources Corporation and Range Production Company drilled two gas wells about a half-mile from the Lipskys' property.

A few months after moving into their new home, the Lipskys experienced mechanical problems with their well. They contacted a well-servicing company, which identified the problem as "gas locking," a condition typically associated with an excess of natural gas in the ground water. A submersible pump's ability to transport water from a well can be affected when too much gas is in the water.

Concerned about the gas in their well water, the Lipskys contacted local health officials who referred them to Alisa Rich, an environmental consultant with Wolf Eagle Environmental. After tests, Rich confirmed the presence of methane and other gases in the well. About this time, Lipsky made a video of himself lighting gas escaping from a garden hose attached to his well. To produce this effect, Lipsky connected the hose to a vent on his water well. He shared his video with the Environmental Protection Agency (EPA) and the media, which reported on the flammable nature of Lipsky's water well. He also complained about the gas in his well to the Texas Railroad Commission. Lipsky's own investigation led him to believe that Range, the oil and gas operator closest to his property, had some responsibility for contaminating his ground water.

Both the EPA and Railroad Commission began investigating Lipsky's complaints. The EPA initially concluded that Range's production activities had contributed to the gas in the Lipskys' well water and that the situation could be hazardous to health and safety. The federal agency ordered Range to provide the Lipskys potable water and to install explosivity meters at their property.

The Railroad Commission completed its investigation a few months later. Although invited to participate in the Commission's evidentiary hearing, the Lipskys declined. The Commission thereafter concluded that Range's operations in the area were not the source of the contamination. Lipsky immediately denounced the Railroad Commission's decision in the media and continued to blame Range, pointing to the EPA's action and his expert's opinions.

The Lipskys thereafter sued Range and others involved in developing their residential area. As to Range, they alleged that its fracking operations near their property were negligent, grossly negligent, and a nuisance. They asserted that Range's operations contaminated their water well, causing the water to become flammable and their home uninhabitable. Range answered the suit and moved to dismiss all claims as an improper collateral attack on the Railroad Commission's ruling. Range also filed a counterclaim against the Lipskys and a third-party claim against Rich (the Lipskys' environmental consultant) alleging defamation, business disparagement, and a civil conspiracy. The Lipskys and Rich responded by moving to dismiss Range's counter-attack as an improper attempt to suppress their First Amendment rights guaranteed under the Constitution and protected by the Texas Citizens Participation Act. TEX. CIV. PRAC. & REM. CODE § 27.005.

The trial court granted Range's motion to dismiss, agreeing that the Lipskys' claims were an improper collateral attack on the Commission's determination. The court also declined to dismiss Range's claims against the Lipskys and Rich by denying their motions to dismiss under the Texas Citizens Participation Act. The Lipskys and Rich attempted an interlocutory appeal from this latter ruling, but the court of appeals dismissed the appeal for want of jurisdiction.[2] See Lipsky v. Range Prod. Co., No. 02-12-00098-CV, 2012 WL 3600014, at *1 (Tex. App.-Fort Worth Aug. 23, 2012, pet. denied) (mem. op.). The court, however, allowed the challenge to proceed as an original proceeding. 411 S.W.3d at 536. Meanwhile, the EPA withdrew its administrative order against Range without explanation. See Joint Stipulation of Dismissal Without Prejudice, United States v. Range Prod. Co., No. 3:11-CV-00116-F (N.D. Tex. Mar. 30, 2012).

The court of appeals thereafter determined that the Texas Citizens Participation Act required the dismissal of Range's claims against Lipsky's wife, Shyla, and his environmental consultant, Rich, and that the trial court had accordingly abused its discretion in not dismissing those claims. 411 S.W.3d at 554. The court further determined that the TCPA did not similarly require dismissal of all of Range's claims against Lipsky.[3] Id. at 546. The court of appeals granted mandamus relief to Lipsky's wife and consulant, while denying similar relief to Lipsky, prompting both Lipsky and Range to seek mandamus relief in this Court. In their respective petitions, Lipsky argues that the TCPA required the trial court to dismiss all claims against him also, while Range argues that the TCPA did not require the dismissal of any claims. The Lipsky petition accordingly concludes that the trial court abused its discretion in failing to grant his TCPA motion. The Range petition, on the other hand, concludes that the court of appeals abused its discretion in granting mandamus relief to Lipsky's wife, his environmental consultant, and Lipsky himself (in part) because the TCPA did not require it.

II. The Texas Citizens Participation Act

As already mentioned, the Texas Citizens Participation Act or TCPA protects citizens from retaliatory lawsuits that seek to intimidate or silence them on matters of public concern. See House Comm. on Judiciary & Civil Jurisprudence, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). The Act provides a special procedure for the expedited dismissal of such suits. A two-step process is initiated by motion of a defendant who believes that the lawsuit responds to the defendant's valid exercise of First Amendment rights. Under the first step, the burden is initially on the defendant-movant to show "by a preponderance of the evidence" that the plaintiff's claim "is based on, relates to, or is in response to the [movant's] exercise of: (1) the right of free speech;[4] (2) the right to petition;[5] or (3) the right of association."[6] TEX. CIV. PRAC. & REM. CODE § 27.005(b). If the movant is able to demonstrate that the plaintiff's claim implicates one of these rights, the second step shifts the burden to the plaintiff to "establish[] by clear and specific evidence a prima facie case for each essential element of the claim in question." Id. § 27.005(c).