Opinion issued July 30, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00823-CV ——————————— DEPTMER M. ASHLEY, M.D., Appellant V. DAYLENE M. KENNY, DVM, Appellee
On Appeal from the 215th District Court Harris County, Texas Trial Court Case No. 2022-02558
MEMORANDUM OPINION
Appellant Deptmer M. Ashley, M.D., appeals from the trial court’s
interlocutory order dismissing his claims against appellee Daylene M. Kenny, DVM,
for defamation and business disparagement under the Texas Citizen’s Participation Act (“TCPA”) and from the trial court’s final judgment awarding Kenny attorney’s
fees, costs, and sanctions under the TCPA. See TEX. CIV. PRAC. & REM. CODE
§§ 27.001–.011. In four issues, Ashley contends that the trial court erred by
(1) granting Kenny’s motion to dismiss under the TCPA; (2) sustaining Kenny’s
objections to Ashley’s TCPA evidence; (3) overruling Ashley’s objections to
Kenny’s TCPA evidence; and (4) awarding attorney’s fees, costs, and sanctions to
Kenny. We reverse and remand.
Background
According to Ashley’s second amended petition (the “live” petition), Ashley
served in the United States Army and earned his medical degree in 2015. Ashley
completed a residency at Tripler Army Medical Center (“Tripler”) in Honolulu,
Hawaii. After completing the residency, Ashley and his wife, who is also a medical
doctor, entered a couples-match residency program through National Residential
Matching Program (“NRMP”). The purpose of the program is to place medical
students into residency training programs in hospitals around the country based on
the preference of the applicant. If an applicant matches with a hospital, the hospital
must accept the applicant. Through NRMP, Ashley applied for a fellowship with the
University of Texas Health Science Center in Houston (“UT Health”). Ashley
matched with UT Health, and he was accepted into its fellowship program beginning
in July 2021.
2 In March 2021, before the fellowship began, UT Health notified Ashley that
it had received an allegation of sexual misconduct against him, but UT Health did
not provide additional details concerning the allegation at that time. Ashley executed
an authorization form allowing UT Health to obtain personnel files from his previous
employers, and he provided references to UT Health.
Despite Ashley providing this information, UT Health requested a waiver
from NRMP to rescind the fellowship offer to Ashley. In its waiver request, UT
Health disclosed that it had received an anonymous voicemail alleging that Ashley
had been accused of sexual misconduct and that he had falsified his application by
indicating that he was “chief resident” at Tripler. UT Health did not provide a copy
of the voicemail recording with its waiver request.
Ashley responded to UT Health’s waiver request by presenting evidence that
the chief resident notation on his application was an “inadvertent misnomer” of
which NRMP and UT Health had complete knowledge prior to Ashley’s fellowship
offer. NRMP denied UT Health’s waiver request because NRMP had not received
any information corroborating the sexual misconduct allegations, and Ashley had
disclosed that he was a “resident class leader” rather than a “chief resident” prior to
the offer.
3 In June 2021, UT Health requested reconsideration of its waiver request from
NRMP. UT Health did not provide a copy of the voicemail recording, but UT Health
attached the following transcript of the voicemail:
Hi. I would like to leave an anonymous report about an incoming fellow named Martin Ashley Deptmer.1 This report is to call attention that he has falsified his application. He was not a chief resident. I would also like to report that he has multiple allegations of sexual misconduct that I am warning to follow up on. This is something that I have to report anonymously. But in good conscious [sic] I can’t go without saying something. I hope that this message helps your program to not be in the same position that other women have suffered.
NRMP denied UT Health’s request for reconsideration because UT Health provided
no additional information corroborating the allegations in the voicemail. Ashley
began his fellowship with UT Health as scheduled, and the record indicates that he
is still employed by UT Health.
In January 2022, before Ashley identified the anonymous caller, he filed an
original petition in this case against John Doe. In February 2022, UT Health
provided Ashley with a copy of the voicemail recording. Ashley identified the caller
as Kenny. Ashley was friends and colleagues with Kenny’s husband, Colin Kenny
(“Colin”), when Ashley worked at Tripler. Soon after identifying Kenny as the caller
on the voicemail recording, Ashley filed a first amended petition substituting Kenny
as the named defendant. In April 2022, Colin filed a declaration stating that Ashley
1 Ashley acknowledges on appeal that this is his preferred name. 4 had had sexual relationships with multiple nurses at Tripler and made a female staff
member feel uncomfortable. Ashley filed a second amended petition in May 2022
naming Colin as a second defendant, but Ashley later nonsuited his claims against
Colin.2
In the second amended petition, Ashley made the factual allegations discussed
above. Ashley asserted claims for defamation and business disparagement against
Kenny based on her voicemail statements that Ashley had allegedly falsified his
application and had been accused of sexual misconduct.3 Kenny filed an answer
generally denying Ashley’s allegations and asserting several affirmative defenses.
Kenny also filed a motion to dismiss Ashley’s claims under the TCPA. In the
motion, Kenny argued that the claims were based on or in response to her exercise
of the right of free speech, which she argued “encompasses a physician’s ability to
provide medical care in a competent and safe manner.” Kenny further argued that
Ashley could not establish a prima facie case for his claims, and she could establish
the affirmative defenses of truth and qualified privilege. She thus argued that
Ashley’s claims were barred under the TCPA, and she requested that the trial court
dismiss Ashley’s claims and award her attorney’s fees, costs, and sanctions.
2 Pursuant to Ashley’s nonsuit, the trial court dismissed Ashley’s claims against Colin without prejudice. Colin is not a party to this appeal. 3 Ashley also asserted a claim against Kenny for intentional infliction of emotional distress, but he later withdrew this claim. This claim is not at issue in this appeal. 5 Kenny’s motion relied solely on her and Colin’s declarations. In his
declaration, Colin stated that Ashley said he checked a box for “chief resident” on
his NRMP application after receiving few invitations to interview the prior year,
when Ashley did not check this box. After submitting an application indicating that
he had been chief resident, Ashley received “materially more invitations to
interview.” Colin also declared that “Ashley had had sexual relationships with
multiple nurses at Tripler.” Colin also stated that Ashley “made a female staff
member/attending physician uncomfortable and acted in an intimidating manner
toward her.” Colin was present when this occurred, and both he and Ashley were
required to “attend remediation meetings” following this incident. Colin declared
that he told Kenny this information.
In her declaration, Kenny recounted the same information contained in
Colin’s declaration, stating that she heard it from Colin. Kenny also stated that she
heard from “friends who were staff and nurses at Tripler” that Ashley had had sexual
relationships with nurses at Tripler and that “Ashley pursued nurses with low self-
esteem because they were easy prey.” She heard from another Tripler staff member
that one of Ashley’s sexual relationships had “caused problems in the workplace.”
Kenny stated that “[i]n [her] opinion, it is sexual misconduct for a doctor to pursue
a sexual relationship with a nurse in the same workplace.”
6 Kenny declared that she personally witnessed only two incidents of a sexual
nature involving Ashley. When the two were at a social event with colleagues and
their families, Ashley allegedly made a sexually explicit, profane comment in front
of Kenny’s child and others. Kenny also heard Ashley make demeaning comments
about his wife. However, Kenny stated that “[she did] not consider these incidents
to be sexual misconduct.” Rather, she believed they showed “inappropriate”
behavior consistent with what she had heard from others.
Ashley filed a combined response to Kenny’s motion to dismiss and
objections to Kenny’s declaration. Ashley objected to the declaration on the ground
that it contained inadmissible hearsay and was not “clear, positive, direct, credible,
free from contradiction, and susceptible of being readily controverted.” Specifically,
Ashley objected to the parts of Kenny’s declaration recounting statements she had
heard from people other than Colin.
Ashley’s response disputed that the TCPA applied to his claims. Although
Ashley agreed with Kenny that the TCPA applies to statements about a healthcare
professional’s provision of medical services, Ashley argued that Kenny’s statements
in the voicemail did not implicate his duties as a doctor, and therefore the statements
did not involve a matter of public concern. Ashley further argued that “UT Health
was fully aware of his status [that he was not chief resident] by the time [Kenny’s]
Voicemail was received.” Ashley supported this argument with his declaration
7 stating that the “chief resident” notation on his application was “an inadvertent
misnomer” of which NRMP and UT Health were aware before Ashley was accepted
into the fellowship program. Ashley also attached his curriculum vitae reflecting that
he was resident class leader at Tripler. Ashley also argued that he could establish a
prima facie case for his claims, and he relied on his affidavit, curriculum vitae, letters
and declarations from his wife and several former colleagues, and evaluations of his
work performance. Finally, Ashley argued that Kenny could not establish any
affirmative defenses to his claims. Ashley requested that the court deny Kenny’s
TCPA motion.
Kenny filed a combined reply in support of her motion to dismiss and
objections to Ashley’s TCPA evidence. Kenny argued that Ashley had failed to cite
any legal authority establishing that the TCPA did not apply to his claims. Kenny
and Colin attached additional declarations disputing information contained in
Ashley’s TCPA evidence.
The trial court held a hearing on the motion to dismiss. The court subsequently
entered a written order granting Kenny’s TCPA motion. The order also overruled
Ashley’s objections to Kenny’s evidence and sustained Kenny’s objections to
Ashley’s evidence. Finally, the order awarded Kenny attorney’s fees and costs under
Civil Practice and Remedies Code section 27.009 in an amount to be determined in
a future order.
8 Kenny filed a motion for attorney’s fees and sanctions under the TCPA, and
Ashley filed a response to the motion. The trial court signed a final judgment
awarding Kenny $23,248.50 in attorney’s fees, conditional appellate attorney’s fees
in the amount of $60,000, and $2,500 in sanctions. This appeal followed.
TCPA
In his first issue with multiple subparts, Ashley contends that the trial court
erred by granting Kenny’s TCPA motion to dismiss. Ashley primarily argues that
the TCPA does not apply because his claims were not based on or in response to
Kenny’s exercise of her right of free speech under the TCPA. Alternatively, Ashley
argues that he established a prima facie case for his claims, and Kenny did not
establish a valid defense to these claims.
A. Standard of Review and Applicable Law
The TCPA serves “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.” McLane
Champions, LLC v. Houston Baseball Partners LLC, 671 S.W.3d 907, 913–14 (Tex.
2023) (quoting TEX. CIV. PRAC. & REM. CODE § 27.002). “The statute provides this
protection by authorizing a motion to dismiss early in the covered proceedings,
subject to expedited interlocutory review.” Id. at 914. Under the TCPA, a party may
9 seek dismissal of a legal action that is based on or in response to the party’s exercise
of certain rights, including the right of free speech, which is at issue in this case. See
TEX. CIV. PRAC. & REM. CODE § 27.003(a).
Review of a TCPA motion to dismiss involves a multi-step analysis. McLane
Champions, 671 S.W.3d at 914; Walker v. Lunenberg, 679 S.W.3d 883, 887 (Tex.
App.—Houston [1st Dist.] 2023, no pet.). First, the movant must demonstrate by a
preponderance of the evidence that the TCPA applies to the challenged legal action.
TEX. CIV. PRAC. & REM. CODE §§ 27.003, 27.005(b); McLane Champions, 671
S.W.3d at 914; Walker, 679 S.W.3d at 887. If the movant satisfies this initial burden,
the burden shifts to the nonmovant to establish by clear and specific evidence a prima
facie case for each essential element of his claim. McLane Champions, 671 S.W.3d
at 914 (citing TEX. CIV. PRAC. & REM. CODE § 27.005(c)). If the nonmovant
establishes a prima facie case, the burden shifts back to the movant to establish an
affirmative defense or other ground on which the movant is entitled to judgment as
a matter of law. TEX. CIV. PRAC. & REM. CODE § 27.005(d).
We review de novo a trial court’s ruling on a TCPA motion to dismiss. USA
Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 200 (Tex. 2023); Walker, 679
S.W.3d at 887. In conducting our review, we consider the pleadings, evidence a court
would consider under Rule of Civil Procedure 166a, and supporting and opposing
affidavits stating the facts on which the liability or defense is based. TEX. CIV. PRAC.
10 & REM. CODE § 27.006(a); Walker, 679 S.W.3d at 887. The basis of a legal action is
determined by the plaintiff’s allegations, not the defendant’s admissions or denials.
Walker, 679 S.W.3d at 887 (quoting Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex.
2017)). We view the pleadings in the light most favorable to the nonmovant. Id.
Whether the TCPA applies to a particular claim is an issue of statutory
interpretation, which is a legal question that we review de novo. USA Lending Grp.,
669 S.W.3d at 200; Walker, 679 S.W.3d at 887. When interpreting statutory text,
“we ascertain and give effect to the Legislature’s intent as expressed in the language
of the statute.” Walker, 679 S.W.3d at 887 (quoting ML Dev, LP v. Ross Dress for
Less, Inc., 649 S.W.3d 623, 627 (Tex. App.—Houston [1st Dist.] 2022, pet. denied)).
B. Analysis
Ashley first argues that his claims concerning Kenny’s voicemail statements
to UT Health—i.e., that Ashley falsified his application because he was not “chief
resident” and that he had been accused of sexual misconduct—are not based on or
in response to Kenny’s exercise of the right of free speech.4 See TEX. CIV. PRAC. &
REM. CODE § 27.005(b)(1)(A). He argues that Kenny’s statements do not implicate
any criminal activity, they were made in a private voicemail rather than a public
forum, and they did not implicate Ashley’s duties or fitness as a doctor. Ashley
4 The parties do not dispute that the right of free speech is the only right at issue in this appeal. 11 therefore argues that Kenny’s statements were not the subject of general interest,
value, or concern to the public. We agree.
Kenny, as the TCPA movant, bore the initial burden to demonstrate by a
preponderance of the evidence that Ashley’s claims were based on or in response to
her exercise of the right of free speech. See TEX. CIV. PRAC. & REM. CODE §§ 27.003,
27.005(b)(1)(A); McLane Champions, 671 S.W.3d at 914. The TCPA defines
“exercise of the right of free speech” as “a communication made in connection with
a matter of public concern.”5 TEX. CIV. PRAC. & REM. CODE § 27.001(3). The parties
dispute whether Kenny’s voicemail statements were made in connection with a
matter of public concern. See id.
“A matter of public concern” means “a statement or activity regarding”:
(A) public officials and persons; (B) “a matter of political, social, or other interest to
the community;” or (C) “a subject of concern to the public.” Id. § 27.001(7). It is
well-established that “the provision of medical services by a health care professional
constitutes a matter of public concern—it implicates issues of health and safety,
community well-being, and services in the marketplace.” McLane Champions, 671
S.W.3d at 915; see also Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591
5 A “communication” includes “the making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic.” TEX. CIV. PRAC. & REM. CODE § 27.001(1). On appeal, Ashley does not dispute that Kenny’s statements in her voicemail constituted a “communication” within the meaning of the TCPA. 12 S.W.3d 127, 136 (Tex. 2019); Lippincott v. Whisenhunt, 462 S.W.3d 507, 510 (Tex.
2015) (per curiam). It is likewise well-established that the “commission of crime,
prosecutions resulting from it, and judicial proceedings arising from the
prosecution” are matters of public concern. Brady v. Klentzman, 515 S.W.3d 878,
884 (Tex. 2017); Yu v. Koo, 633 S.W.3d 712, 722 (Tex. App.—El Paso 2021, no
pet.).
Here, the parties do not dispute that Kenny stated the following in the
voicemail to UT Health:
Hi. I would like to leave an anonymous report about an incoming fellow named [Ashley]. This report is to call attention that he has falsified his application. He was not a chief resident. I would also like to report that he has multiple allegations of sexual misconduct that I am warning to follow up on. This is something that I have to report anonymously. But in good conscious [sic] I can’t go without saying something. I hope that this message helps your program to not be in the same position that other women have suffered.
In support of her TCPA motion to dismiss, Kenny relied solely on her and
Colin’s declarations to clarify the statements in her voicemail. Concerning the
statement that Ashley falsified his application because he “was not a chief resident,”
the declarations stated that Ashley told Colin he checked a box for “chief resident”
on his NRMP application in order to receive more invitations to interview with
hospitals. However, Ashley’s petition alleged that he was “resident class leader” and
that the discrepancy was resolved before he was accepted into UT Health’s
fellowship program. Kenny presented no evidence disputing these allegations, 13 defining the positions of “chief resident” and “resident class leader,” or showing that
any material or meaningful distinction exists between these terms. Nor did Kenny
produce any evidence showing that Ashley’s misstatement on his application either
affected his ability to provide medical services or constituted criminal activity. See
McLane Champions, 671 S.W.3d at 915; Brady, 515 S.W.3d at 884. Thus, no
evidence shows that the contents of Ashley’s application were a concern to the public
rather than a concern limited to Ashley, NRMP, and UT Health. See TEX. CIV. PRAC.
& REM. CODE §§ 27.001(3), (7), 27.005(b)(1)(A).
Concerning Kenny’s statement that Ashley “has multiple allegations of sexual
misconduct,” Kenny’s and Colin’s declarations stated that Ashley told Colin he had
sexual relationships with nurses with whom Ashley had worked. Kenny stated that
in her opinion, it is sexual misconduct for a doctor to pursue a sexual relationship
with a nurse. The declarations also stated that Ashley “made a female staff
member/attending physician uncomfortable and acted in an intimidating manner
toward her,” and Colin and Ashley were required to “attend remediation meetings”
after this incident. Kenny declared that she heard from others that “Ashley pursued
nurses with low self-esteem because they were easy prey” and that one of Ashley’s
sexual relationships “caused problems in the workplace.”6 Kenny declared that she
6 Kenny also declared that she heard from “another resident” that “Ashley flashed his genitals” while “at a bar with work colleagues.” In part of his third issue, Ashley argues that the trial court abused its discretion by overruling his objection to this 14 only personally observed Ashley make sexually explicit, profane, and demeaning
comments at social events outside work on two occasions. But Kenny conceded that
she did not believe these comments constituted sexual misconduct.
Kenny produced no evidence, however, showing how any of these allegations
concerned Ashley’s ability to provide medical services. McLane Champions, 671
S.W.3d at 915. There is no evidence that Ashley’s alleged sexual relationships were
nonconsensual or even occurred in the workplace. See Brady, 515 S.W.3d at 884.
Although Kenny opined that it was sexual misconduct for a doctor to pursue a sexual
statement on the grounds that it constituted inadmissible hearsay, it was not based on Kenny’s personal knowledge, and its probative value was outweighed by unfair prejudice. Kenny responds that she did not rely on this statement to prove the truth of the matter asserted; rather, she argues that she relied on the statement as proof that Ashley engaged in sexual misconduct as alleged in her voicemail to UT Health. We review a trial court’s decision to exclude testimony for an abuse of discretion. See Hlavinka v. HSC Pipeline P’ship, LLC, 650 S.W.3d 483, 496 (Tex. 2022). In deciding a TCPA motion to dismiss, we may consider evidence a court could consider in summary judgment proceedings under Rule of Civil Procedure 166a. TEX. CIV. PRAC. & REM. CODE § 27.006(a). Under Rule 166a, declarations are admissible, but they “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” See TEX. R. CIV. P. 166a(f); see also TEX. CIV. PRAC. & REM. CODE § 132.001(a) (providing that “unsworn declaration may be used in lieu of . . . affidavit” required by rule). We agree with Ashley that the statement Kenny heard from a third-party was not based on her personal knowledge. See TEX. R. CIV. P. 166a(f); TEX. R. EVID. 602. We also agree that this statement constitutes inadmissible hearsay. See TEX. R. EVID. 801(d), 802; Rockman v. Ob Hospitalist Grp., Inc., No. 01-21-00383-CV, 2023 WL 3311548, at *6 (Tex. App.—Houston [1st Dist.] May 9, 2023, no pet.) (mem. op.) (concluding that court should not consider inadmissible hearsay evidence over party’s objection in ruling on TCPA motion to dismiss). We therefore conclude that the trial court abused its discretion by overruling Ashley’s objection to this statement. We sustain in part Ashley’s third issue in part. 15 relationship with a nurse, there is no evidence that these alleged relationships
violated hospital policy or constituted criminal conduct. The only mention of the
workplace is that Kenny heard one of Ashley’s relationships “caused problems in
the workplace” and Ashley made a female colleague “uncomfortable and acted in an
intimidating manner toward her,” but this evidence is too vague to implicate the
public’s concern. See Terrell v. Mazaheri, 676 S.W.3d 116, 126 (Tex. App.—San
Antonio 2023, no pet.) (concluding that TCPA did not apply to “vague” statement
unrelated to any specific unethical conduct by attorney). The other alleged incident
in which Ashley made sexually explicit and demeaning comments took place outside
the workplace. But Kenny did not produce any evidence or point to any legal
authority establishing that this conduct concerned Ashley’s provision of medical
services or involvement in criminal activity.7 See McLane Champions, 671 S.W.3d
7 In the cases holding that the TCPA applies to communications concerning sexual misconduct, the sexual misconduct at issue constituted criminal activity. See, e.g., Graves v. Evangelista-Ysasaga, No. 14-22-00137-CV, 2023 WL 370589, at *4 (Tex. App.—Houston [14th Dist.] Jan. 24, 2023, pet. denied) (mem. op.) (“[A]ppellate courts have held similar statements to have been made in connection with matters of public concern, given that both sexual assault and making a false police report are crimes.”); Morris v. Daniel, 615 S.W.3d 571, 579 (Tex. App.— Houston [1st Dist.] 2020, no pet.) (“[A]ssuming that allegations of sexual abuse of a pupil by an elementary school teacher qualify as a matter of public concern, they do so because allegations of child sex abuse implicate the welfare and safety of all other pupils over whom the teacher has authority or with whom the teacher potentially has contact.”); Crews v. Galvan, No. 13-19-00110-CV, 2019 WL 5076516, at *5 (Tex. App.—Corpus Christi–Edinburg Oct. 10, 2019, no pet.) (mem. op.) (“Clearly, sexual misconduct involving young vulnerable individuals” by pastor “are matters of public concern as they relate to health, safety, and community well-being”); contra Terrell v. Mazaheri, 676 S.W.3d 116, 125–26 (Tex. App.— 16 at 915; Brady, 515 S.W.3d at 884. In sum, no evidence ties Ashley’s alleged conduct
to a matter of public concern. See TEX. CIV. PRAC. & REM. CODE §§ 27.001(3), (7),
27.005(b)(1)(A).
On appeal, Kenny primarily relies on Lippincott v. Whisenhunt to argue that
the TCPA applies to allegations concerning “misrepresenting qualifications and
allegations of misconduct.” This argument is based on a misreading of Lippincott.
In Lippincott, hospital administrators received reports alleging that a nurse
had “represented himself to be a doctor, endangered patients for his own financial
gain, and sexually harassed employees.” 462 S.W.3d at 508–09. The administrators
then sent emails to four people, and the emails included separate allegations that the
nurse “failed to provide adequate coverage for pediatric cases,” “administered a
different narcotic than was ordered prior to pre-op or patient consent being
completed,” “falsified a scrub tech record on multiple occasions,” and “violated the
company’s sterile protocol policy.” Id. at 509–10 (internal quotations omitted). The
nurse sued the administrators for defamation and other claims based on their own
statements, and the administrators filed a motion to dismiss under the TCPA. Id. at
509.
San Antonio 2023, no pet.) (holding that statement by lawyer’s wife that client “fool[ed] around with my husband” did not involve specific unethical conduct by attorney and thus did not involve matter of public concern). 17 Contrary to Kenny’s argument on appeal, the Texas Supreme Court did not
consider whether the TCPA applied to the reports received by the hospital
administrators that the nurse had “represented himself to be a doctor” and “sexually
harassed employees.” Id. at 508–09. Rather, the court considered whether the TCPA
applied to the administrators’ statements that the nurse failed to adequately cover
cases, failed to provide the correct narcotics, falsified medical records, and violated
hospital policy. Id. at 509–10. The court recognized that “the provision of medical
services by a health care professional constitutes a matter of public concern,” and it
thus concluded that the TCPA applied to the administrators’ statements. Id. at 510.
Kenny did not produce any evidence showing that her statements were analogous to
the administrators’ statements. Lippincott therefore does not support Kenny’s
argument that her statements were made in connection with a matter of public
concern.8
8 The remaining cases cited by Kenny likewise stand only for the well-established proposition that the TCPA applies to statements about a healthcare professional’s provision of medical services, but these cases do not involve allegations that a doctor falsified his employment application or had been accused of sexual misconduct. See Khalil v. Mem’l Hermann Health Sys., No. H-17-1954, 2017 WL 5068157, at *5 (S.D. Tex. Oct. 30, 2017) (“Dr. Khalil’s allegations are about physicians and healthcare administrators and their evaluations, discussions, and reports about her performance as a physician. The communications at issue are related to health and safety, matters of public concern. Memorial Hermann has met its burden to invoke the Act.”); Mem’l Hermann Health Sys. v. Khalil, No. 01-16- 00512-CV, 2017 WL 3389645, at *6 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op. on reh’g) (concluding that communications regarding Khalil’s competence—including various peer-review and credentialing committee findings that Khalil failed to read patient records, communicate with surgeons, 18 We conclude that Kenny did not meet her burden to establish by a
preponderance of the evidence that the TCPA applies to the challenged legal actions.
See TEX. CIV. PRAC. & REM. CODE §§ 27.003, 27.005(b); McLane Champions, 671
S.W.3d at 914. We therefore hold that the trial court erred by granting Kenny’s
motion to dismiss under the TCPA.9 We sustain Ashley’s first issue.
Attorney’s Fees
In his fourth issue, Ashley contends that because the trial court erred by
granting Kenny’s TCPA motion to dismiss, the court abused its discretion by
awarding attorney’s fees, costs, and sanctions to Kenny.
We review a trial court’s award of attorney’s fees, costs, and sanctions under
the TCPA for an abuse of discretion. ADB Int., LLC v. Wallace, 606 S.W.3d 413,
440, 443 (Tex. App.—Houston [1st Dist.] 2020, pet. denied). If a court orders
dismissal of a legal action under the TCPA, the court “shall award to the moving
party court costs and reasonable attorney’s fees incurred in defending against the
legal action,” and the court also “may award” sanctions. TEX. CIV. PRAC. & REM.
demonstrate insight or basic knowledge, recognize serious symptoms, and acknowledge incorrect dosing—were matters of public concern); see also 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. denied) (mem. op.); Batra v. Covenant Health Sys., 562 S.W.3d 696, 709 (Tex. App.—Amarillo 2018, pet. denied). 9 Because we hold that the trial court erred by granting Kenny’s motion to dismiss because the TCPA does not apply to Ashley’s claims against her, we need not consider Ashley’s second issue or the remainder of his third issue. See TEX. R. APP. P. 47.1. 19 CODE § 27.009(a). In her TCPA motion to dismiss, Kenny requested awards of
attorney’s fees, costs, and sanctions under the TCPA, and the trial court granted the
motion. See id. Because we have already determined that Kenny did not establish
her entitlement to dismissal of Ashley’s claims under the TCPA, we also conclude
that Kenny was not entitled to attorney’s fees, costs, and sanctions based on the
dismissal of a legal action under the TCPA. See id.; Darnell v. Rogers, 588 S.W.3d
295, 306 (Tex. App.—El Paso 2019, no pet.). We hold that the trial court abused its
discretion by awarding attorney’s fees, costs, and sanctions to Kenny. We sustain
Ashley’s fourth issue.
Conclusion
We reverse the trial court’s interlocutory order granting Kenny’s motion to
dismiss under the TCPA and the trial court’s final judgment awarding Kenny
attorney’s fees, costs, and sanctions, and we remand the case to the trial court for
further proceedings consistent with this opinion.
April L. Farris Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.