Douglas A. Terry, D.D.S. and Douglas A. Terry, D.D.S., Inc. v. John Christian Schiro, D.D.S. and Schiro-Kline, LLP

• Court: Court of Appeals of Texas
• Decided: October 23, 2008
• Docket: 01-08-00151-CV
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00151-CV

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DOUGLAS A. TERRY, D.D.S., and DOUGLAS A. TERRY, D.D.S., INC., Appellants

V.

JOHN CHRISTIAN SCHIRO, D.D.S. and SCHIRO-KLINE, LLP, Appellees

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On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. 2005-57985

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MEMORANDUM OPINION

          Appellants, Douglas A. Terry, D.D.S. and his corporation, Douglas Terry, D.D.S., Inc., (collectively “Terry”) appeal from the district court’s granting summary judgment on Terry’s counterclaims under Chapter 261 of the Texas Occupations Code in favor of appellees, John Christian Schiro, D.D.S. and Schiro-Kline, LLP., (collectively, “Schiro”). We affirm.

Background

          Terry and Schiro are both dentists practicing in the Houston area. In 2003 and 2004, three of Schiro’s former patients sought treatment with Terry, who began substantial work in consultation with three other specialists, and informed these patients that Schiro’s work was below acceptable standards. Each of the three patients then sued Schiro for dental malpractice, and all three also filed complaints with the Texas State Board of Medical Examiners (“the Board”). Terry volunteered as an expert in the lawsuits, and was designated a non-retained testifying expert in each. In January and May 2005, Schiro hired two private investigators to pose as former patients of Schiro’s and visit Terry for his comments on Schiro’s purported work on their teeth. According to both investigators, Terry and his staff made comments disparaging Schiro’s work.

          In July 2005, Terry received a request from the Board regarding the investigation of complaints against Schiro by the three former patients. The Board requested Terry forward complete copies of the patients’ records, as well as a narrative detailing his observations, including what treatment Terry recommended to the patients and what treatments he performed. In addition to these requirements, Terry, apparently of his own volition, conducted what he termed a “double blind ‘peer review’ exercise,” forwarding photographs of the three patients’ dental work to colleagues he selected, asking for their opinions of the work. According to Terry, this “double blind” study did not identify the work as Schiro’s.

          In September 2005, Schiro filed suit against Terry, alleging Terry had made various statements disparaging Schiro’s dentistry practice to dental colleagues and to prospective patients as well as persons accompanying prospective patients to his office. Schiro brought claims for slander and defamation, seeking exemplary damages. Schiro also obtained a TRO prohibiting Terry from destroying evidence until a temporary injunction hearing. The court dissolved the TRO three days later.

          Terry answered, claiming (1) Schiro was a public figure, (2) his statements about Schiro were truthful and necessary to protect the public safety, (3) as a testifying expert in suits against Schiro, Terry’s statements were immune from suit, (4) Terry enjoyed a “peer review privilege” due to his conducting a “double blind” study of Schiro’s work, and (5) he was entitled to all defenses under Chapter 74 of the Texas Civil Practice and Remedies Code. Terry also counterclaimed against Schiro, including a statutory counterclaim under Texas Occupations Code section 261.104 for a frivolous suit against a person participating in dental peer review.          At a hearing on a motion to quash discovery regarding the participants in Terry’s “double blind” study, Schiro’s counsel clarified to the trial court that his client’s claims for slander did not include any communications Terry had made to the Board of Dental Examiners, and the trial court entered an order reflecting that limitation, noting, “Plaintiffs are not pursuing causes of action based on communications to the Board.” The trial court’s order also found “the Board did not authorize Dr. Terry to take any actions that could be cloaked with peer review privilege.” Schiro then moved for both no-evidence and traditional summary judgment on all of Terry’s counterclaims, again stating that Schiro’s claims did not include any communications Terry made to the Board. After Terry nonsuited his other counterclaims, the trial court granted summary judgment in Schiro’s favor on Terry’s remaining Chapter 261 counterclaim. In addition, the order specifically noted that Chapter 261 of the Occupations Code did not apply to Terry because “[t]he relevant actions in this case fall outside the definitions of peer review committee or participant as set out in Ch. 261.”

          After the trial court granted summary judgment in Schiro’s favor, Schiro non-suited his claims against Terry.  Terry now appeals the Court’s entry of summary judgment on his Chapter 261 counterclaim against Schiro, contending (1) genuine issues of material fact exist as to whether Schiro’s claims arose from Terry’s participation in “peer review” and Terry is therefore entitled to raise the statutory counterclaim; and (2) Schiro’s motion is legally insufficient to support summary judgment because Terry was not a peer review participant, or “a person named as a defendant in a civil action filed as a result of participation in peer review.” Standard of Review

          Because the propriety of granting a summary judgment is a question of law, we review the trial court’s decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). When a party seeks both a traditional and a no-evidence summary judgment, we first review the trial court’s summary judgment under the no-evidence standards of Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the nonmovant failed to produce more than a scintilla of evidence raising a genuine fact issue on the challenged elements of his claims, then there is no need to analyze whether the movant’s summary judgment proof satisfied the traditional summary judgment burden of proof under Rule 166a(c). Id.

          In reviewing a no-evidence summary judgment, we “must examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion” to determine whether more than a scintilla of evidence was presented on the challenged elements of the nonmovant’s claim. City of Keller v. Wilson, 168 S.W.3d 802, 825 (Tex. 2005). More than a scintilla of supporting evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

          A traditional summary judgment under Rule of Civil Procedure 166a(c) is properly granted only when the movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. Knott, 128 S.W.3d at 215.          Analysis

          Section 261.102 of the Texas Occupations Code states, “a cause of action does not accrue” for persons participating in or assisting “a dental peer review committee,” so long as they act without malice. Tex. Occ. Code Ann. § 261.102 (Vernon 2004). In addition, certain other persons reporting or furnishing information to a dental peer review committee or the Board, in good faith, are immunized from suit for their assistance. Id. § 261.103. These protections are limited, however, to persons acting under the authority of the Board or assisting a dental peer review committee or the Board. Id.

          The Code also contains a provision, entitled “Counterclaim for Frivolous Suit,” allowing “[a] dental peer review committee, a person participating in peer review, or any other person” who is “named as a defendant in a civil action filed as a result of participation in peer review” to file a counterclaim or independent action to recover costs of their defense, including attorney’s fees and “damages incurred as a result of the civil action” if the suit against them is found to be frivolous or brought in bad faith. Tex. Occ. Code Ann. § 261.104 (Vernon 2004).

          Schiro contends there is no evidence Terry was part of, or did work authorized by, a “dental peer review committee” or the Texas State Board of Dental Examiners. In addition, Schiro argues, although some of the disparaging statements Terry made may have been made in response to the Board’s request for information, he also made other statements about Schiro to colleagues, friends, and prospective patients, and these statements are outside the scope of any protections afforded by the Code. On appeal Terry now concedes he was not part of any “dental peer review committee” as defined section 261.104, but he nonetheless insists he was entitled to assert a counterclaim against Schiro under section 261.104.

           To determine whether Terry may counterclaim under the Occupations Code, we turn to the statute at issue. In construing a statute, our objective is to determine and give effect to the Legislature’s intent. State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002); see also Tex. Gov’t Code Ann. § 312.005 (Vernon 2005) (“In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy.”). We determine legislative intent from the entire act and not just isolated portions. Gonzalez, 82 S.W.3d at 327 (citing Jones v. Fowler, 969 S.W.2d 429, 432 (Tex. 1998)). Thus, we “‘read the statute as a whole and interpret it to give effect to every part.’” Id. (quoting Jones, 969 S.W.2d at 432). If the statutory language is unambiguous, we must interpret it according to its terms, giving meaning to the language consistent with other provisions in the statute. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). We also consider the objective the law seeks to obtain and the consequences of a particular construction. See Tex. Gov’t Code Ann. § 311.023(1), (5); see also McIntyre, 109 S.W.3d at 745.

          Section 261.104, Counterclaim for Frivolous Suit, states:

A dental peer review committee, a person participating in peer review, or any other person named as a defendant in a civil action filed as a result of participation in peer review may file a counterclaim in a pending action or may prove a cause of action in a subsequent suit to recover defense costs, including court costs, attorney’s fees, and damages incurred as a result of the civil action, if the plaintiff’s original suit is determined:(1) to be frivolous; or (2) to have been brought in bad faith.

Tex. Occ. Code Ann. § 261.104 (Vernon 2004).

          Thus, whether he is part of a “dental peer review committee,” a “person participating in peer review,” or “any other person,” before he may bring a counterclaim under section 261.104, Terry must first establish that Schiro’s suit was filed against him “as a result of participation in peer review.”

          The relevant portions of the Occupations Code do not define “peer review.” They do, however, define a “dental peer review committee” as “a peer review, judicial or grievance committee of a dental association authorized to evaluate the quality of dental services or the competent of dentists . . . includ[ing] a member, employee, assistant, investigator attorney or other agent serving the committee.” Tex. Occ. Code Ann. § 261.001(2) (Vernon 2005). Further, the Code contains several provisions providing protections for persons who participate or assist such a committee. See, e.g., id. § 261.001, .102, .103 (Vernon 2005). Terry urges us to construe the definition of peer review to include “participating in the complaint process of the Board.”

          We note, however, that Schiro’s claims were limited to Terry’s statements to colleagues, potential patients and the general public, and they did not include Terry’s participation in the complaint process of the Board. For example, Schiro’s motion for summary judgment included affidavits from private investigators who attested to disparaging statements Terry made in his office when they posed as potential patients. These statements are not within even Terry’s broad construction of “peer review.”

          We construe section 201.104 to require a direct link between the plaintiff’s cause of action and the defendant’s participation in or assistance rendered to a “dental peer review committee,” defined by section 261.001. There is no evidence that any of actions for which Schiro sued Terry fall within that definition. Accordingly, the trial court correctly rendered summary judgment in Schiro’s favor.

Conclusion

           Because the statutory counterclaim authorized by section 261.104 is available only to persons named as a defendant in a civil action filed as a result of their participation in or assistance rendered to a dental peer review committee, and because the actions for which Schiro brought suit do not fall within that definition, we hold that the district court did not err in granting summary judgment in Schiro’s favor on Terry’s remaining counterclaim. Accordingly, we affirm the judgment of the trial court.

                                                             George C. Hanks, Jr.

                                                             Justice

Panel consists of Justices Jennings, Hanks, and Bland.