Opinion
No. 05-19-00163-CV
02-26-2020
JOHN THOMAS, M.D., J.A.A. ENTERPRISES, LLC D/B/A SOUTH PLAINS LINDSEY'S DAY SPA, AND MELISSA MCRAE, D.O., Appellants v. BIOTE MEDICAL, LLC, Appellee
On Appeal from the 191st Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-18-09503
MEMORANDUM OPINION
Before Justices Whitehill, Schenck, and Osborne
Opinion by Justice Whitehill
Appellants John Thomas, J.A.A. Enterprises, LLC, and Melissa McRae (Providers) appeal an order denying their Texas Citizens Participation Act dismissal motion challenging BioTE Medical, LLC's suit to enforce non-compete and non-solicitation agreements (among other claims). Because we conclude that the Providers' failed to prove that the TCPA applies to the claims asserted against them, we affirm the trial court's order.
I. BACKGROUND
As the Providers acknowledge, this lawsuit derives from "the primary litigation" involving "claims that mirror the causes of action here." Our decision in that primary litigation, Forget About It, Inc. v. BioTE Medical, LLC, No. 05-18-01290-CV, 2019 WL 3798180, at *1 (Tex. App.—Dallas Aug. 13, 2019, pet. denied) (mem. op.) and another related case, Rouzier v. BioTE Medical, LLC, No. 05-19-00277-CV, 2019 WL 6242305, at *1 (Tex. App.—Dallas Nov. 22, 2019, no pet.) (mem. op.) control our decision here. See Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418, 424 (Tex. App.—Dallas 2019, pet. denied) (absent an intervening change in law, we follow our own precedent).
Here, Providers signed written agreements with BioTE, an entity that licenses a system for delivery of bio-identical hormone replacement therapy. These agreements contain disclosure, competition, trade secret, misappropriation, and solicitation restrictions.
When the Providers allegedly began working with a competitor, BioTE sued them alleging: (i) breach of contract; (ii) breach of fiduciary duty and usurpation of business opportunities; (iii) conspiracy; (iv) tortious interference and (v) unfair competition and conspiracy to violate the Texas Theft Liability Act and Texas Theft of Trade Secrets Act.
The Providers filed a TCPA dismissal motion, which the trial court denied.
The Providers assert that denying the motion was erroneous because: (i) they established the TCPA's application to the claims asserted against them; (ii) BioTE failed to prove that the commercial speech exemption applies; (iii) BioTE failed to present clear and specific evidence of causation and damages; (iv) BioTE's claims are preempted by the Texas Uniform Trade Secret ACT (TUTSA); and (v) the trial court failed to rule on their objections to BioTE's evidence.
II. STANDARD OF REVIEW AND APPLICABLE LAW
The TCPA permits a party to file a motion to dismiss a "legal action" against him if it is based on, relates to, or is in response to his exercise of his right of free speech, right to petition, or right of association. TEX. CIV. PRAC. & REM. CODE § 27.003(a) ; see In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015).
This case was filed before the 2019 TCPA amendments. Therefore, all citations are to the statute's prior version, which applies to this case.
This summary procedure requires a trial court to dismiss suits, or particular claims within suits, that demonstrably implicate those statutorily protected rights, unless the nonmovant makes a prima facie showing that the its claims have merit. Sullivan v. Abraham, 488 S.W.3d 294, 295 (Tex. 2016); see TEX. CIV. PRAC. & REM. CODE § 27.005(b).
The dismissal motion procedure has three steps. First, the movant must prove by a preponderance of the evidence that the legal action is based on, relates to, or is in response to the movant's exercise of the right of free speech, association, or petition. CIV. PRAC. & REM CODE § 27.005(b). If the movant does not meet this burden, the motion fails.
Second, if the movant satisfies the first step, the nonmovant must establish by clear and specific evidence a prima facie case for each essential element of its claim. Id. § 27.005(c). If the nonmovant fails to meet this burden, the trial court must dismiss the claim. Id. §27.005 (b)-(c).
Third, if the nonmovant meets its step two burden and the movant has asserted a defense, to prevail the movant must establish by a preponderance of the evidence each essential element of a valid defense to the nonmovant's claims. Id. §27.005(d).
We review de novo a trial court's denial of a TCPA dismissal motion, including whether the TCPA applies to the underlying suit. See Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). We consider the pleadings and opposing affidavits in the light most favorable to the nonmovant. Dyer, 573 S.W.3d at 424.
The Providers argue that the communications here implicate their free speech and association rights.
The TCPA defines the "exercise of the right of free speech" as "a communication made in connection with a matter of public concern." TEX. CIV. PRAC. & REM. CODE § 27.001(3).
"'Communication' includes 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).
"'Matters of public concern' include issues related to: (i) health or safety; (ii) environmental, economic, or community well-being; (iii) the government; (iv) a public official or public figure; or (v) a good, product, or service in the marketplace." Id. § 27.001(7). But, "[t]he words 'good, product, or service in the marketplace' . . . do not paradoxically enlarge the concept of "matters of public concern' to include matters of purely private concern. [T]he 'in the marketplace' modifier suggests that the communication must have some relevance to a public audience of potential buyers or sellers." Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 134 (Tex. 2019).
Although the TCPA sometimes covers private communications, those cases involve environmental, health, or safety concerns with public relevance beyond the pecuniary interest of the private parties involved. Id. at 136.
III. ANALYSIS
A. Issue One: Are BioTE's claims based on, related to, or in response to Providers' exercise of their free speech and association rights?
1. Association
Providers rely on BioTE's pleadings referencing a conspiracy to solicit business, compete against BioTE and dishonor BioTE agreements to argue that "on their face, BioTE's claims arise out of communications among a group of people and implicate the right of association." According to the Providers, BioTE's claims all relate to Providers' communications with each other as well as other BioTE employees and contractors. To this end, Providers point to BioTE's allegations that Thomas and McRae joined together and "have been conspiring with others to dishonor their BioTE agreements, misappropriate the BioTE system, but not honor the terms of their agreements." Providers also argue that BioTE lists multiple examples of where the alleged theft or misappropriation occurred through a series of communications.
Providers specifically identify BioTE's claims for breach of fiduciary duty, trade secret, common law misappropriation, tortious interference, conspiracy, aiding and abetting, Texas Theft liability, unfair competition, and conversion.
The Providers also point to McRae's deposition testimony stating that she agreed to serve on the competitor's medical advisory board because she liked the idea of associating with like-minded people for the betterment of medicine. But in that same deposition, McRae also testified that she has never been to any meetings or participated in any calls of collaborations of that board. Since she joined, her function has been "nothing."
We rejected this argument in Forget About It, and again in Rouzier. See Forget About It, 2019 WL 3798180, at *5; Rouzier, 2019 WL 6242305, at *4-5. In those cases, we held that construing the TCPA to protect a right of association based on alleged communications among those working for BioTE's competitors pertaining to the misappropriation and use of BioTE's trade secrets and confidential business information would be "an absurd result that would not further the purpose of the TCPA to curb strategic lawsuits against public participation." Id. There is nothing to distinguish this case and there has been no intervening change in the law, so we follow that precedent now. See Dyer, 373 S.W.3d at 427.
2. Free Speech
Providers contend that they are being sued because they communicated with each other and former BioTE physicians and contractors about providing healthcare services in the marketplace, triggering free speech protection under the TCPA because the claims relate to a matter of public concern. Providers identify several types of communications described in BioTE's petition and affidavits that include communications concerning: (i) their status as BioTE providers; (ii) practice of medicine techniques; (iii) training doctors how to answer questions to market the therapy and sell the BioTE system; (iv) training the sales force, and (v) other hormone therapies. Providers maintain that BioTE's claims against them "would necessarily have required communications," and these communications involve a matter of public concern because "they involve communications about medical practices, hormone therapy medication, and selling hormone therapy drugs in the marketplace."
As this court has previously held, "we cannot 'blindly accept' attempts by the movant to characterize the claims as implicating protected expression." Damonte v. Hallmark Fin. Servs. Inc., No. 05-18-8-00874-CV, 2019 WL 3059884 at *5 (Tex. App.—Dallas July 12, 2019, no pet.) (mem. op.). "To the contrary, we view the pleadings in the light most favorable to the nonmovant, favoring the conclusion that its claims are not predicated on protected expression." Id.
Discussions among alleged tortfeasers to misappropriate confidential and proprietary information are not communications made in connection with a matter of public concern. Id. at *4; see also Creative Oil, 591 S.W.3d at 137 (private contract dispute involving only the fortunes of the private parties involved is not a matter of public concern).
In Forget About It, we held that "communications discussing allegedly tortious conduct" are not "tangentially related to a matter of public concern simply because the contracts in question belonged to a company in the healthcare industry or because the alleged tortfeasers hoped to profit from their conduct." We further held that private communications made in connection with a business dispute are not matters of public concern. Forget About It, 2019 WL 3798180, at *5 (citing Staff Care, Inc. v. Eskridge Enters., LLC, No. 05-18-00732-CV, 2019 WL 212116, at *5 (Tex. App.—Dallas May 15, 2019, no pet.) (mem. op.)); see also Rouzier, 2019 WL 6242305, at *4-5; see also Creative Oil, 591 S.W.3d at 136 (citing Brady v. Klentzman, 515 S.W.3d 878, 884)) ("matter of public concern" commonly refers to matters of political, social, or other concern to the community).
The same types of communications are at issue here, and Providers failed to establish that these communications implicate a matter of public concern. Following Forget About It and Rouzier, Providers' first issue is resolved against them. B. Second, Third, and Fourth Issues
Because we have determined that the TCPA does not apply to the communications in this private business dispute, we need not reach the Providers' remaining issues. See TEX. R. APP. P. 47.1.
III. CONCLUSION
We conclude the trial court did not err in denying the Providers' motion to dismiss because the TCPA does not apply to the communications at issue. We thus affirm the trial court's order.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 190163F.P05
JUDGMENT
On Appeal from the 191st Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-18-09503.
Opinion delivered by Justice Whitehill. Justices Schenck and Osborne participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee BIOTE MEDICAL, LLC recover its costs of this appeal from appellant JOHN THOMAS, M.D., J.A.A. ENTERPRISES, LLC D/B/A SOUTH PLAINS LINDSEY'S DAY SPA, AND MELISSA MCRAE, D.O.. Judgment entered this 26th day of February, 2020.