In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00416-CV ________________
COURTNEY CHESSON, Appellant
V.
WILBUR HAH, Appellee ________________________________________________________________________
On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D220291-C ________________________________________________________________________
MEMORANDUM OPINION
In this interlocutory appeal, we are asked to decide the applicability of the
Texas Citizens’ Participation Act (TCPA) to multiple causes of action arising from
a patient’s social media postings made about her physician. See Tex. Civ. Prac. &
Rem. Code Ann. §§ 27.001–.011. The trial court failed to rule on Appellant Courtney
Chesson’s TCPA Motion to Dismiss Appellee Wilbur Hah’s claims for defamation,
business disparagement, invasion of privacy, breach of contract, and injunctive relief
within the statutory time frame, and the Motion was denied by operation of law. See 1 id. §§ 27.005(a), 27.008(a). In twelve issues, Chesson contends the trial court erred
by implicitly denying her TCPA Motion to Dismiss because: (1) the TCPA applies
to Hah’s allegations made against her; (2) once the burden of proof shifted, Hah
failed to present clear and specific evidence establishing a prima facie case for each
of his claims; and (3) even if he did establish a prima facie case, she established
affirmative defenses for those claims. For the reasons discussed below, we will
reverse the trial court’s denial of Chesson’s TCPA Motion to Dismiss and remand
for proceedings consistent with this opinion.
I. Background
In 2020, Chesson approached Hah, a board-certified cosmetic surgeon, to
perform liposuction and a “tummy tuck” on her. As part of the preoperative process,
Chesson and Hah signed a “Contract of Reasonable Expectations.” In that document,
Chesson acknowledged that she was undergoing an elective procedure that was not
medically necessary and that she should not have unrealistic expectations. The
document also contained a provision addressing “social media and online content”
that stated, “I agree not to post any defamatory, derogatory, mean spirited, or
negative comments, reviews that is [sic] designed to damage the online reputation
regarding Dr. Hah, Dr. Chen-Hah or Beauty MDs, LLC team based on my perception
of not having my cosmetic outcome expectations met.”
2 Hah alleged that after Chesson underwent surgery, she and several other
patients began posting on social media about their experience with Hah. In August
2022, Hah sued Chesson and three other patients in separate lawsuits. He alleged
that Chesson “contractually agreed[] to refrain . . . from posting false, defamatory,
derogatory, mean-spirited or negative comments or reviews on social media
designed to damage the Plaintiff’s reputation or livelihood, or to interfere with
Plaintiff’s business relations with other patients.” Hah further alleged he provided
Chesson “with informed, elective cosmetic services within such reasonable
expectations and without any violation of the standard of care.” Hah also claimed
that in “direct violation of Defendant’s agreement,” she “published defamatory,
derogatory, mean-spirited, or negative comments or reviews on social media[.]” He
specifically claimed that Chesson “published in a website labeled ‘Botched
Cosmetic Surgeries in Orange Texas’ and ‘Local Failed Cosmetic Surgeries’ false,
defamatory, derogatory, mean-spirited and negative materials on social media,
intentionally, and with malice, designed to damage” his livelihood or reputation and
interfere with his business relations with other patients, and that “Plaintiff is the only
cosmetic surgeon in Orange, Texas.” Hah asserted claims for injunctive relief,
breach of contract, defamation, invasion of privacy, and business disparagement.
In her Original Answer, Chesson asserted a general denial and raised the
following affirmative defenses: 1) there is a lack of consideration or failure of 3 consideration for the contract; 2) Chesson’s statements about Hah were true; 3) any
opinions Chesson gave about Hah are unactionable and do not support a claim for
defamation or disparagement; and 4) Chesson’s statements are protected speech and
an exercise of her right of association and are constitutionally protected by the
TCPA. In her Amended Answer, Chesson added two other affirmative defenses: 1)
that the contract was illegal or violates public policy; and 2) statements made by a
patient regarding their treatment by a physician and published for others who may
become patients are privileged and cannot be made the basis of a claim for
defamation.
Chesson filed an “Anti-SLAPP Motion to Dismiss and for Attorney’s Fees”
under the TCPA, claiming that Hah sued to “chill Defendant’s exercise of her right
to free speech[] and right of association.” Chesson supported her TCPA Motion to
Dismiss with her affidavit and those of the three other patients Hah sued, Ashley
Melton, April Gage, and Lauren Martynuik Robinson. Chesson argued the TCPA
covered Hah’s claims against her, because the communications that form the basis
of his claims occurred in connection with a matter of public concern–“the manner in
which a physician performed surgery on his patients in the Orange County area”–so,
they “relate to a matter of social or other interest to the community.” She also argued
that Hah’s lawsuit was in response to her exercising her right of association.
Specifically, she contended the supporting affidavits established that the Facebook 4 group postings Hah complained about have “a common theme and represent
statements of persons with a common interest in the results of surgery, which is
clearly a matter of public concern.”
Chesson further asserted that after she showed the TCPA applied, Hah failed
to establish by clear and specific evidence a prima facie case for each essential
element of his claims and that she could establish an affirmative defense. In her
affidavit, Chesson averred that to the extent she discussed Hah’s treatment of her
with Melton, Gage, and Robinson, or posted materials in a Facebook Group, she did
so “in an effort to collectively express, pursue or defend our common interests
relating to the manner in which Dr. Hah has treated patients like myself and the other
three people that he has sued.” Robinson, Melton, and Gage’s affidavits contained
identical language. In her affidavit, Chesson specifically denied posting anything to
the Facebook Groups mentioned in Hah’s Petition, “Botched Surgery in Orange
Texas” and “Locally Failed Cosmetic Surgeries” except a screenshot of something
originally posted by Dr. Hah’s wife, which stated, “Her allegations were reviewed
by the Texas Medical Board who found that appropriate medical care was provided
and her complaint was without merit. The complaint was dismissed.” Chesson later
supplemented her Motion to Dismiss by attaching a corrected affidavit in which she
denied posting anything except a screenshot originally posted by Hah’s wife, but this
time included the post, “Marian Chen-Hah does that make you feel better at night 5 when you close your eyes? So the medical board didn’t shut you down or slap your
wrist so you feel like you do your patience [sic] justice?” Chesson filed a Second
Supplement to the Motion to Dismiss and for Attorney’s Fees that addressed with
greater particularity why this is a matter of public concern and included counsel’s
affidavit.
Hah filed his Response to Defendant’s TCPA Motion to Dismiss and objected
to any evidence offered by Chesson or the other patients he sued to the extent they
are not experts and complained Chesson failed to present evidence of attorney’s fees.
Hah argued the TCPA does not apply, and the 2019 amendments removed “good,
product, or service in marketplace” from the definition of “matter of public concern.”
Hah characterized this case as “a private contract dispute to which the TCPA does
not apply[.]” Hah contended that Chesson contracted with him to perform elective
cosmetic services, and she agreed to refrain from posting . . . negative comments or
reviews on social media[.]” Hah alleged he performed under the contract by
completing the surgery, but Chesson breached the contract. Hah alleged that
Chesson and the three other patients “conspired” and posted “false, defamatory,
derogatory, mean-spirited or negative comments or reviews on social media
designed to damage” his reputation in breach of Chesson’s contract. Finally, he
argued that Chesson breached her contract with him by posting on social media but
only asserted that he had shown a prima facie case for his breach of contract claim 6 and did not address the essential elements for any other cause of action. Hah also
sought attorney’s fees.
Hah later filed a First Amended Response to Defendant’s Motion to Dismiss.
Hah supported his First Amended response with the following: the “Contract of
Reasonable Expectations;” his affidavit; his Curriculum Vitae; various screenshots;
and his attorney’s affidavit and billing invoices. He asserted that during her post-
operation recovery care, Chesson experienced “infection and seromas (fluid
collections)” and that “[t]reatment for seroma is drainage” and for recurrent fluid
collection, “it is important to install a Penrose drain, to keep open the incision site
so that any residual fluid can drain out over subsequent days.” He responded that
Chesson resisted placing drains, specifically that she “refused the placement of
Penrose drains as recommended on several occasions and finally was persuaded to
accept one Penrose drain, but only after extended and difficult discussions.” Hah
also responded that Chesson “did not follow up, but chose to seek post-operative
care elsewhere against [his] advice” and “further refused any communication that
Plaintiff requested with Defendant’s other treating physicians.” He complained that
Chesson, a “newly graduated nurse practitioner” considered herself “an expert” on
VASER Liposuction but did not complete any formal surgical training for such. The
Amended Response contained the same general arguments that the TCPA did not
apply and only addressed his prima facie case for breach of contract. In his affidavit, 7 Hah averred that Chesson and the other patients entered into a contract with him to
provide cosmetic services, agreeing they would “refrain from posting, false,
defamatory, derogatory, mean-spirited or negative comments or reviews on social
media designed to damage my reputation.” Hah also stated that he provided services
“within the accepted standards of medical care[.]” In his affidavit, Hah also outlined
problems that arose post-operatively for Chesson, his recommended course of
treatment, and her resistance to his recommendations. He further averred that the
four patients, including Chesson, “each conspired to post false, defamatory,
derogatory, mean-spirted, or negative comments or reviews on social media
designed to damage my reputation, as depicted in the attached, which are true and
correct copies of each’s postings on social media[.]” Finally, he averred that he did
not authorize Chesson or the three other defendants to use or publish photos or
videos of him, his exam rooms, offices, or other patients. The screenshots attached
to Hah’s First Amended Response included an exchange between unidentified
individuals, seemingly a patient and physician, regarding placement and removal of
drains that appeared to have been posted on a social media site by an unidentified
individual with the hashtags that included “#botched,” “#botchedplasticsurgery,”
and “#botchedsurgery.” The second page of screenshots again did not identify who
posted them or where they were posted, rather, the screenshots were labeled “Group
participant’s Post” and provided an account of what the patient experienced after 8 surgery and what a doctor told her but did not identify the patient or physician. The
third page of screenshots also included a conversation via text message, seemingly
between a patient and physician and was labeled “Group participant’s Post” but did
not identify the patient or physician.
The trial court heard the Motions to Dismiss filed by Gage, Chesson, and
Robinson during the same hearing. Chesson argued that the TCPA applies, because
the lawsuit implicates the exercise of her right to free speech and her right of
association. She argued that once the TCPA was triggered, Hah failed to prove a
prima facie case for each essential element of his causes of action. Chesson further
argued that none of the screenshots were authenticated and that “there has not been
any identification of what the alleged defamatory comment is.” Chesson and the
other patients contended that the pleadings that should be considered were those on
file when they filed their Motions to Dismiss, which specifically claimed the
statements made in Facebook Groups were problematic, and the pleadings should
not include the complaint in Hah’s Response about TikTok posts because it was an
attempt to expand the claims. Chesson and the other patients went through each
cause of action and explained why Hah failed to make a prima facie case. Chesson
also argued that she specifically swore in her affidavit that she only posted one
comment in the Facebook groups, which was directed at Hah’s wife.
9 At the hearing, Hah sought to offer live testimony to discuss certain videos
and authenticate screenshots. Chesson and the other patients objected to any
evidence or testimony being taken at the hearing, but the trial court overruled the
objection and allowed Hah to testify during the hearing. After the hearing, Chesson
and Hah filed letter briefs with the trial court to address the 2019 amendments and
whether the TCPA applied. The trial court failed to rule on Chesson’s Motion to
Dismiss within thirty days from the date of filing, which functioned as a denial by
operation of law. See id. §§ 27.005(a), 27.008(a). This interlocutory appeal
followed. See id. §§ 27.008(b), 51.014(a)(12).
II. Standard of Review
We review a trial court’s denial of a TCPA motion to dismiss de novo. See
Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018); Walker
v. Hartman, 516 S.W.3d 71, 79–80 (Tex. App.—Beaumont 2017, pet. denied). We
consider the pleadings, evidence we could consider under Rule 166a, and affidavits
stating facts on which liability or any defense is based in the light most favorable to
the nonmovant. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a); In re Lipsky,
460 S.W.3d 579, 587 (Tex. 2015) (orig. proceeding); see also Dall. Morning News,
Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019); Push Start Indus., LLC v. Hous. Gulf
Energy Corp., No. 09-19-00290-CV, 2020 WL 7041567, at *3 (Tex. App.—
Beaumont Nov. 30, 2020, no pet.) (mem. op.) (citations omitted). We also review de 10 novo whether the parties met their burdens of proof under section 27.005 of the
TCPA. Landry’s, Inc. v. Animal Legal Defense Fund, 631 S.W.3d 40, 45–46 (Tex.
2021) (citation omitted).
III. Analysis
A. TCPA Generally
The TCPA is meant “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; see also McLane Champions, LLC v. Hous.
Baseball Partners LLC, No. 21-0641, 2023 WL 4306378, at *4 (Tex. June 30, 2023)
(citations omitted). The TCPA instructs courts to liberally construe it to ensure its
stated purpose and intent are fully effectuated, but it “does not abrogate or lessen
any other defense, remedy, immunity, or privilege available under other
constitutional, statutory, case, or common law or rule provisions.” See Tex. Civ.
Prac. & Rem. Code Ann. § 27.011(a), (b); ExxonMobil Pipeline Co. v. Coleman, 512
S.W.3d 895, 898 (Tex. 2017) (citation omitted) (noting directive to liberally
construe). Under the TCPA, a party may move to dismiss a “legal action” that is
“based on or is in response to a party’s exercise of the right of free speech, right to
petition, or right of association[.]” Tex. Civ. Prac. & Rem. Code Ann. § 27.003. The 11 TCPA defines the “[e]xercise of the right of free speech” as “a communication made
in connection with a matter of public concern.” See id . § 27.001(3); see Montano v.
Cronan, No. 09-20-00232-CV, 2021 WL 2963801, at *4 (Tex. App.—Beaumont
July 15, 2021, no pet.) (mem. op.).
The TCPA “provides a three-step process for the dismissal of a ‘legal action’
to which it applies.” Montelongo v. Abrea, 622 S.W.3d 290, 296 (Tex.
2021) (citing Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691 (Tex.
2018)); see also Tex. Civ. Prac. & Rem. Code Ann. § 27.005(b)–(d). First, the
movant bears the initial burden to show that the “legal action is based on or is in
response to[]” the movant’s exercise of: “(A) the right of free speech; (B) the right
to petition; or (C) the right of association[.]” Tex. Civ. Prac. & Rem. Code Ann. §
27.005(b)(1)(A)–(C). If the movant establishes that the nonmovant’s claim
implicates one of these rights, the burden shifts to the plaintiff to “‘establish[] by
clear and specific evidence a prima facie case for each essential element of the claim
in question.’” Lipsky, 460 S.W.3d at 587 (quoting Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(c)). A “prima facie case” means “evidence sufficient as a matter of
law to establish a given fact if it is not rebutted or contradicted.” Id. at 590 (citation
omitted). It is the “‘minimum quantum of evidence necessary to support a rational
inference that the allegation of fact is true.’” Id. (quoting In re E.I. DuPont de
Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004)). Clear and specific evidence 12 means that the “plaintiff must provide enough detail to show the factual basis for its
claim.” Id. at 591. Finally, if the nonmovant establishes their prima facie case, the
burden shifts back to the movant to establish each essential element of an affirmative
defense by a preponderance of the evidence. Tex. Civ. Prac. & Rem. Code Ann. §
27.005(d); Youngkin v. Hines, 546 S.W.3d 675, 679–80 (Tex. 2018); Coleman, 512
S.W.3d at 899.
B. Issues One, Two, and Three: TCPA Applicability
In her first three issues, Chesson argues that the TCPA applies since Hah’s
lawsuit implicated her right to free speech on a matter of public concern and her
right of association. Hah responds that the 2019 TCPA amendments removed “a
good, product, or service in the marketplace” from the definition of “matter of public
concern.”
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 Ann. § 27.001(3). The TCPA further defines “matter of public
concern” as:
. . . a statement or activity regarding: (A) a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (B) a matter of political, social, or other interest to the community; or (C) a subject of concern to the public.
13 Id. § 27.001(7). The 2019 amendments removed the “good, product, or service in
the marketplace” from the definition of “matter of public concern,” but the current
version of the statute includes “a statement or activity regarding . . . a matter of . . .
other interest to the community; or . . . a subject of concern to the public.” Act of
May 20, 2019, 86th Leg., R.S., ch. 378, § 1, 2019 Tex. Gen. Laws 684, 684 (current
version at Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7)); see also McLane
Champions, 2023 WL 4306378, at *5 (discussing 2019 amendments and changes to
definition of “matter of public concern”). “The phrase ‘matter of public concern’
commonly refers to matters ‘of political, social, or other concern to the community,’
and a subject of general interest and of value and concern to the public, as opposed
to purely private matters.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591
S.W.3d 127, 135 (Tex. 2019) (quoting Brady v. Klentzman, 515 S.W.3d 878, 884
(Tex. 2017)); Montano, 2021 WL 2963801, at *4. Statements related to a physician’s
“professional competence and fitness to practice medicine” is “a subject matter that
has consistently been recognized by Texas courts as a matter of public concern.”
Rockman v. Ob Hospitalist Grp., Inc., No. 01-21-00383-CV, 2023 WL 3311548, at
*12 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet. h.) (mem. op.) (citing
Lippincott v. Whisenhunt, 462 S.W.3d 507, 510 (Tex. 2015)) (other citations
omitted). As the Texas Supreme Court recently clarified, “under the TCPA, the
communication on which the suit is based must have some relevance to the public 14 audience[,]” and “the ‘connection’ between the communication and the matter of
public concern must exist when the communication is made.” McLane Champions,
2023 WL 4306378, at *7.
The record before us shows that the complained-of posts within the Facebook
Groups were directed to a local community where Hah practiced medicine, although
Chesson expressly averred the only thing she posted in these specific Groups
pertained to Hah’s wife. Hah complained that the titles of the social media groups of
“Botched in Orange, Texas” and “Local Failed Cosmetic Surgeries” made clear what
the subject matter would be. The posts in these groups included those from patients
outlining their surgical experiences with Hah. Other courts have determined that
publishing disparaging comments about a medical practice is a communication that
constitutes “a matter of public concern.” See San Angelo Cmty. Med. Ctr., LLC v.
Leon, No. 03-19-00229-CV, 2021 WL 1680194, at *7 (Tex. App.—Austin Apr. 29,
2021, pet. filed) (mem. op.) (citations omitted) (concluding disparaging comments
about medical practice was a matter of public concern); Memorial Hermann Health
Sys. v. Khalil, No. 01-16-00512-CV, 2017 WL 3389645, at *5 (Tex. App.—Houston
[1st Dist.] Aug. 8, 2017, pet. denied) (op. on reh’g) (mem. op.) (applying language
in prior version of statute and concluding that comments about healthcare
professional’s competence were a matter of public concern); see also Lippincott, 462
S.W.3d at 510 (applying prior version of statute and concluding statements about a 15 healthcare professional’s competence related to matter of public concern under the
TCPA). That people visited the Facebook groups labeled “Botched Cosmetic
Surgeries in Orange Texas” and “Local Failed Cosmetic Surgeries” indicate the
posts were of “interest to the community” or “a subject of concern to the public.”
See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(7)(B), (C). Any such posts or
discussions did not simply address private business negotiations in an arms-length
transaction, rather they outlined their negative experiences with a local surgeon,
referenced the alleged substandard quality of a healthcare professional’s treatment
of patients, and were made for reasons that relate to public health and safety, and
were made to a public audience. See McLane Champions, 2023 WL 4306378, at *7.
As such, the posts involved a “matter of public concern,” and thus implicated
Chesson’s right of free speech. See Tex. Civ. Prac. & Rem. Code Ann. § 27.001(3).
Hah’s primary complaint about Chesson and the other patients seems to be
that she posted “mean-spirited or negative comments or reviews on social media.”
Further, notwithstanding certain enumerated exemptions, the TCPA applies to “a
legal action against a person related to the communication, gathering, receiving,
posting, or processing of consumer opinions or commentary, evaluations of
consumer complaints, or reviews or ratings of businesses.” Id. § 27.010(b)(2).
Although Chesson specifically denied that she posted material on the Facebook
Groups, Hah identified in his Petition except one that pertained to his wife, the 16 screenshots attributed to “Group participant’s Post” discussed surgical services Hah
provided and his treatment of patients. And Chesson commented about her
experience with those services. Although the screenshot does not identify the doctor
or patient, this is a post that Hah attributed to Chesson, and his legal action against
her was related to the “posting . . . of consumer opinions or commentary[.]” See id.
We conclude the TCPA applies to Hah’s legal action against Chesson as it
involved the exercise of her right to speech and was related to the “posting . . . of
consumer opinions or commentary[.]” See id. §§ 27.003(a), 27.010(b)(2). We sustain
issue one. Based on our resolution of issue one, we need not address issues two and
three. See Tex. R. App. P. 47.1 (requiring appellate court to hand down a written
opinion as brief as practicable but addressing all issues necessary to final disposition
of the appeal).
C. Issues Four through Eight: Prima Facie Case for Each Cause of Action
In issues four through eight, Chesson argues that Hah failed to establish by
clear and specific evidence a prima facie case for each of his causes of action. As
part of her argument that Hah failed to meet his prima facie burden, Chesson
contends that the trial court should not have permitted live testimony at the hearing.
Having concluded that the TCPA applies to Hah’s legal action against Chesson, we
now turn to whether Hah met his burden to establish a prima facie case for each
17 essential element of his causes of action by clear and specific evidence. See Lipsky,
460 S.W.3d at 587; see also Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
1. Evidentiary Matters: Hearing and Live Testimony
We first address the scope of the evidence we are reviewing since Chesson
challenged Hah’s live testimony at the hearing. Prior to 2019, the courts of appeals
were split regarding whether live testimony could be considered during a TCPA
motion to dismiss hearing. Compare Batra v. Covenant Health Sys., 562 S.W.3d
696, 707 (Tex. App.—Amarillo 2018, pet. denied) (“In addition to consideration of
the pleadings and affidavits, a trial court may, but is not required to, hear live
testimony and receive the submission of documentary evidence.”), with Quintanilla
v. West, 534 S.W.3d 34, 42 (Tex. App.—San Antonio 2017), rev’d on other
grounds, 573 S.W.3d 237 (Tex. 2019) (explaining that “[t]he trial court does not
hear live testimony” when considering a TCPA motion to dismiss), ; see also
Heavenly Homes of S. Tex., LLC v. Infinity Custom Constr., LLC, No. 13-21-00298-
CV, 2022 WL 2069232, at *7 (Tex. App.—Corpus Christi-Edinburg June 9, 2022,
no pet.) (mem. op.) (discussing split in authority regarding live hearing testimony
under prior TCPA version). The 2019 amendments authorized consideration of
evidence similar to that considered in a summary-judgment context, and section
27.006(a) currently states:
18 In determining whether a legal action is subject to or should be dismissed under this chapter, the court shall consider the pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on which the liability or defense is based.
Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a). Rule 166a(c) expressly
provides that “[n]o oral testimony shall be received at the hearing.” Tex. R. Civ. P.
166a(c). The Texas Supreme Court has explained that Rule 166a allows only certain
forms of evidence, and “oral testimony cannot be adduced in support of or opposition
to a motion for summary judgment[.]” Martin v. Martin, Martin & Richards, Inc.,
989 S.W.2d 357, 359 (Tex. 1998) (per curiam) (citing Tex. R. Civ. P. 166a(c)).
Further, live testimony is not included within the enumerated evidence in section
27.006. See Tex. Civ. Prac. & Rem. Code Ann. § 27.006(a). Accordingly, like our
sister courts, we conclude the TCPA as amended in 2019, like Rule 166a, does not
permit the consideration of live testimony on the merits of a TCPA motion to
dismiss. See Garcia v. Semler, 663 S.W.3d 270, 277 (Tex. App.—Dallas 2022, no
pet.); Heavenly Homes, 2022 WL 2069232, at *7; Kadow v. Grauerholz, No. 02-20-
00044-CV, 2021 WL 733302, at *4 (Tex. App.—Fort Worth Feb. 25, 2021, no pet.)
(mem. op.). Therefore, because the appellants preserved their right to complain that
the trial court erred in considering oral testimony in a hearing on a TCPA motion to
dismiss, we will not consider the oral testimony the trial court admitted at the hearing
in our analysis. 19 2. Issue Four: Business Disparagement
In issue four, Chesson asserts that Hah failed to meet his burden of
establishing a prima facie case for his business disparagement claim. “The torts of
defamation and business disparagement are alike in that ‘both involve harm from the
publication of false information.’” Innovative Block of S. Tex., Ltd. v. Valley Builders
Supply, Inc., 603 S.W.3d 409, 417 (Tex. 2020) (quoting Lipsky, 460 S.W.3d at 591).
A notable distinction is that “[d]efamation serves to protect one’s interest in
character and reputation, whereas disparagement protects economic interests by
providing a remedy for pecuniary losses from slurs affecting the marketability of
goods and services.” Id. (citation omitted). “The publication of a disparaging
statement concerning the product of another is actionable when (1) the statement is
false, (2) published with malice, (3) with the intent that the publication caused
pecuniary loss or the reasonable recognition that it will, and (4) pecuniary loss does
in fact result.” Id. at 417 (citing Forbes, Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 170 (Tex. 2003)).
In examining the pleadings and evidence the trial court could consider under
Rule 166a, we note that Hah identifies no statements in his Original Petition that
Chesson made as the basis of his business disparagement claim. In his Response and
Amended Response to Chesson’s TCPA Motion to Dismiss, while he attached 20 screenshots and photographs, Hah does not address the essential elements of his
business disparagement claim or how any of Chesson’s purported statements on
social media supported that cause of action. Rather, he focuses solely on his breach
of contract cause of action.
Hah complained in his Response and Amended Response that Chesson did
not offer expert testimony to opine that Hah acted below the standard of care. If
Chesson had filed a medical malpractice claim, we agree that Chesson would be
required to comply with the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 74.001–.507. However, Chesson has not sued Hah for medical
malpractice in this matter. Rather, Hah sued Chesson for the claims as outlined
above. As we have explained above, the TCPA applies, and Hah has the burden to
show a prima facie case for his business disparagement cause of action by clear and
specific evidence. See id. § 27.005(b)–(c); Lipsky, 460 S.W.3d at 590–92. Hah has
failed to allege or state how he suffered a pecuniary loss in his Responses or provide
any evidence of a pecuniary loss. See Innovative Block, 603 S.W.3d at 417 (including
resulting pecuniary loss as a requisite element of business disparagement). Hah
failed to establish a sufficient causal connection between any challenged statement
Chesson made and any particular loss. See Landry’s, Inc., 631 S.W.3d at 54 (noting
same in the context of business disparagement claim and concluding party failed to
meet its burden of establishing prima facie case). Since business disparagement is 21 solely concerned with economic harm, “proof of special damages is ‘a fundamental
element of the tort.’” Innovative Block, 603 S.W.3d at 417 (quoting Waste Mgmt. of
Tex., Inc. v. Tex. Disposal Sys. Landfill, Inc., 434 S.W.3d 142, 155 (Tex. 2014)). His
affidavit did not state any specific damages that he sustained because of Chesson’s
postings. See Lipsky, 460 S.W.3d at 592–93 (concluding that general averments that
non-movant “suffered direct pecuniary and economic losses” absent facts illustrating
how defendant’s remarks caused the losses were insufficient to meet the TCPA
requirement of clear and specific evidence of damages); Camp v. Patterson, No. 03-
16-00733-CV, 2017 WL 3378904, at *7 (Tex. App.―Austin 2017).
We conclude that Hah failed to establish a prima facie case of his business
disparagement claim by clear and specific evidence. See Tex. Civ. Prac. & Rem.
Code Ann. § 27.005(c); Innovative Block, 603 S.W.3d at 417; Lipsky, 460 S.W.3d
at 592–93. We sustain issue four.
3. Issue Five: Defamation
Chesson argues in issue five that Hah failed to meet his burden to establish a
prima facie case for his defamation claim. For a defamation claim, a plaintiff must
show (1) the defendant published a false statement of fact to a third party, (2) that
was defamatory concerning the plaintiff, (3) with the required degree of fault, at least
amounting to negligence, and (4) in some cases, damages. Innovative Block, 603
S.W.3d at 417 (citing Lipsky, 460 S.W.3d at 593). “A defamatory statement is one 22 that ‘tends [] to harm the reputation of another as to lower him in the estimation of
the community or to deter third persons from associating or dealing with him.’” Id.
(quoting RESTATEMENT (SECOND) OF TORTS § 559 (AM. LAW INST. 1977)) (other
citation omitted).
On appeal, Hah contends for the first time that Chesson’s statements
constituted defamation per se, and as such, Hah had no obligation to show proof of
damages. A party seeking to recover on a defamation claim must plead and prove
damages, unless the defamatory statements are defamatory per se. Lipsky, 460
S.W.3d at 593. “A statement constitutes defamation per se if it ‘injures a person in
his office, profession, or occupation.’” Hancock v. Variyam, 400 S.W.3d 59, 66
(Tex. 2013) (quoting Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings,
Inc., 219 S.W.3d 563, 581 (Tex. App.–Austin 2007, pet. denied)). “Historically in
Texas, defamation per se claims allow the jury to presume the existence of
general damages without proof of actual injury.” Id. at 65 (citations omitted). “In a
defamation case that implicates the TCPA, pleadings and evidence that establishes
the facts of when, where, and what was said, the defamatory nature of the statements,
and how they damaged the plaintiff should be sufficient to resist a TCPA motion to
dismiss.” Lipsky, 460 S.W.3d at 591. Defamation per se refers to statements that are
so obviously harmful that general damages may be presumed. Id. Whether a
23 statement is defamatory per se is generally a question of law. See Lipsky, 460
S.W.3d at 596.
Like his business disparagement claim, Hah failed to substantively address
the essential elements of his defamation cause of action in his Responses to
Chesson’s TCPA Motion to Dismiss. While he generally attached screenshots of
Chesson’s social media posts to his Response, he did not explain which of these
statements were defamatory, the defamatory nature of the statements, or specify how
Chesson’s statements damaged him. See id.
More importantly, in the trial court, Hah did not raise or argue in his responses
or in his affidavit that any particular statements constitute defamation per se. Rather,
in his Responses, Hah confined his argument to his breach of contract cause of action
and asserted he “has met his burden to establish by clear and specific evidence a
prima facie case for each element of his breach of contract claim against Defendant
that Defendant did not attempt to establish a valid defense to the claim.” However,
“[T]he TCPA requires that on motion the plaintiff present ‘clear and specific
evidence’ of ‘each essential element[,]’” which Hah failed to provide. See id. at 590.
While it is generally true that defamation per se does not require proof of damages,
in the absence of “pleadings and evidence that establishes the facts of when, where,
and what was said, the defamatory nature of the statements, and how they were
damaged,” Hah cannot avoid dismissal. See id. at 591; see also Bedford v. Spassoff, 24 520 S.W.3d 901, 904 (Tex. 2017). We conclude Hah failed to establish a prima facie
case for each element of his defamation claim by clear and specific evidence. See
Bedford, 520 S.W.3d at 904; Lipsky, 460 S.W.3d at 591; see also Tex. Civ. Prac. &
Rem. Code Ann. § 27.005(c). We sustain issue five.
4. Issue Six: Invasion of Privacy
In issue six, Chesson argues that Hah failed to meet his burden of establishing
a prima facie case for each element of his invasion of privacy claim. Hah counters
that “a fact issue exists as to whether Appellee suffered direct damages as a result
thereof by way of Appellant linking his image to the defamatory posts complained
of.” Hah also contends on appeal that “‘[i]nvasion of privacy’ can include
‘misappropriation’ that involves using another[] person’s name or likeness without
their permission.”
In Texas, the recognized types of invasion of privacy include: (1) intrusion
upon seclusion or solitude or into one’s private affairs; (2) public disclosure of
embarrassing private facts; and (3) wrongful appropriation of name or
likeness. See Cain v. Hearst Corp., 878 S.W.2d 577, 578 (Tex. 1994) (outlining
cases recognizing each type of privacy right); Doggett v. Travis Law Firm, P.C., 555
S.W.3d 127, 130 (Tex. App.—Houston [1st Dist.] 2018, pet. denied). “Name
misappropriation is a species of invasion of privacy, and Texas law applies a very
restrictive interpretation of the tort.” Cardiovascular Provider Res. Inc. v. Gottlich, 25 No. 05-13-01763-CV, 2015 WL 4914725, at *3 (Tex. App.—Dallas Aug. 18, 2015,
pet. denied) (mem. op.) (citation omitted). Elements of a misappropriation claim are:
1) the defendant appropriated the plaintiff’s name or likeness for the value associated
with it, and not in an incidental manner or for a newsworthy purpose; 2) the plaintiff
can be identified from the publication; and 3) there was some advantage or benefit
to the defendant. Watson v. Talia Heights, LLC, 566 S.W.3d 326, 329 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (citations omitted). Texas law protects the value
associated with the name, rather than the name per se. See id. at 330; see also Express
One Int’l Inc. v. Steinbeck, 53 S.W.3d 895, 900 (Tex. App.—Dallas 2001, no pet.)
(citation omitted).
As explained in issues five and six, the question is whether Hah presented
clear and specific evidence of each essential element for his invasion of privacy
claim–not whether a fact issue exists. See Lipsky, 460 S.W.3d at 590. Hah likewise
failed to address the essential elements of an invasion of privacy misappropriation
claim. Other than summarily averring in his affidavit and Responses to the Motion
to Dismiss that he did not authorize Chesson to use or publish his likeness,
photographs, or videos of him, his offices, or other patients, Hah did not explain how
his evidence satisfied each of the requisite elements of this claim. See Tex. Civ. Prac.
& Rem. Code Ann. § 27.005(c). Although the screenshots attached to Hah’s
Responses showed that the other patients may have used Hah’s image, Hah failed to 26 show that Chesson appropriated his image to take advantage of the value associated
with Hah’s name or image. See, e.g., United Locating Services, LLC v. Fobbs, 619
S.W.3d 863, 872–73 (Tex. App.—Houston [14th Dist.] 2021, no pet.) (explaining
that plaintiffs failed to show the value associated with their names and concluding
they failed to establish “by clear and specific evidence a prima facie case for the first
essential element of their Name Appropriation Claims”); see also Watson, 566
S.W.3d at 331 (explaining in no evidence summary-judgment context that plaintiff
was required “to produce evidence showing that his name was misappropriated to
take advantage of his reputation, prestige, or other values[]”). Hah therefore has also
failed to establish a prima facie case for each requisite element of his
misappropriation invasion of privacy claim by clear and specific evidence. See Tex.
Civ. Prac. & Rem. Code Ann. § 27.005(c); Watson, 566 S.W.3d at 329; see also
Fobbs, 619 S.W.3d at 872–73. We sustain issue six.
5. Issue Seven: Breach of Contract
In issue seven, Chesson argues that Hah failed to make a prima facie case for
his breach of contract claim by clear and specific evidence. Chesson specifically
challenges the contract’s validity and contends that Hah failed to provide evidence
of damages proximately caused by Chesson’s breach.
Once Chesson showed the TCPA applied to Hah’s claim, Hah needed to
establish “by clear and specific evidence a prima facie case for each essential 27 element” of his breach of contract claim. See Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c); S & S Emergency Training Solutions, Inc. v. Elliott, 564 S.W.3d 843, 847
(Tex. 2018) (noting second step of analysis after TCPA applicability is whether non-
movant established by clear and specific evidence a prima facie case of each
essential element of its breach-of-contract claim). The essential elements of a breach
of contract cause of action are: “(1) the existence of a valid contract; (2) the plaintiff
performed or tendered performance as the contract required; (3) the defendant
breached the contract by failing to perform or tender performance as the contract
required; and (4) the plaintiff sustained damages as a result of the breach.” USAA
Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018) (citations
omitted).
Assuming without deciding the “Contract of Reasonable Expectations”
Chesson signed constituted a valid contract, Hah must still establish damages caused
by Chesson’s alleged breach. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c). Hah pleaded in his Petition that as a result of Chesson’s breach, he “has
suffered and continues to suffer actual damages” and generally averred in his
affidavit that Chesson posted “false, defamatory, derogatory or mean-spirited or
negative comments or reviews on social media designed to damage my reputation[.]”
Hah’s pleading and affidavit alleging he has been damaged is conclusory and not
“clear and specific evidence” of particularized harm. See Lipsky, 460 S.W.3d at 592– 28 93 (explaining that general averment of economic losses failed to satisfy TCPA’s
minimum requirements); Gensetix, Inc. v. Baylor Coll. of Med., 616 S.W.3d 630,
647 (Tex. App.—Houston [14th Dist.] 2020, pet. dism’d) (noting same). Since Hah
failed to provide “clear and specific evidence” of damages, Hah failed to establish a
prima facie case for his breach of contract claim. See Lipsky, 460 S.W.3d at 590,
592–93; Gensetix, Inc., 616 S.W.3d at 647; see also Tex. Civ. Prac. & Rem. Code
Ann. § 27.005(c). We sustain issue seven.
6. Issue Eight: Injunctive Relief
In issue eight, Chesson contends that Hah cannot establish his entitlement to
injunctive relief and has not attempted to. She also contends that it is “linked to one
or more causes of action[,]” which all fail, so the claim for injunctive relief fails.
“[T]he TCPA does not allow a request for injunctive relief to be separately
challenged when it is linked to a cause of action.” See Cavin v. Abbott, 613 S.W.3d
168, 171 (Tex. App.—Austin 2020, pet. denied) (citations omitted). Hah concedes
in his brief that his request for injunctive relief “is not an independent cause of action
but is rather ancillary to Appellant’s other claims.” Having determined he failed to
make a prima facie case for his other claims, we decline to address this separately
from his other causes of action. See id.; see also Tex. R. App. P. 47.1.
29 D. Issues Nine through Twelve: Affirmative Defenses
In issues nine through twelve, Chesson asserts she established affirmative
defenses to Hah’s claims. Considering our conclusion that Hah failed to meet his
burden of establishing a prima facie case for the essential elements of each of his
causes of action by clear and specific evidence, the burden did not shift back to
Chesson to establish affirmative defenses. See Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c)–(d); Youngkin, 546 S.W.3d at 679–80 (discussing TCPA’s burden
shifting); Coleman, 512 S.W.3d at 899 (same). Accordingly, we need not address
Chesson’s remaining issues. See Tex. R. App. P. 47.1.
IV. Conclusion
To summarize, we conclude that Chesson met her initial burden to show that
Hah’s claims against her fall within the TCPA. Therefore, the burden shifted to Hah
to establish by clear and specific evidence a prima facie case for each essential
element of his claims. Hah failed to establish a prima facie case for his defamation,
business disparagement, invasion of privacy, and breach of contract claims, and his
claim for injunctive relief was derivative of those claims. We hold the trial court
erred by denying Chesson’s TCPA Motion to Dismiss. We reverse the trial court’s
denial of Chesson’s TCPA Motion to Dismiss, remand the case to the trial court so
that it can enter a judgment dismissing Hah’s defamation, business disparagement,
invasion of privacy, breach of contract, and injunctive relief claims, and instruct the 30 trial court to award Chesson reasonable attorney’s fees, costs, and other expenses
incurred as allowed under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. §§
27.005, 27.009(a); River Plantation Cmty. Improvement Ass’n v. River Plantation
Props., LLC, No. 09-17-00451-CV, 2018 WL 4120252, at *7 (Tex. App.—
Beaumont Aug. 30, 2018, no pet.) (mem. op.) (remanding for entry of judgment
dismissing causes of action and award of attorney’s fees).
REVERSED AND REMANDED.
________________________________ W. SCOTT GOLEMON Chief Justice
Submitted on June 16, 2023 Opinion Delivered August 10, 2023
Before Golemon, C.J., Johnson and Wright, JJ.