In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00414-CV ________________
LAUREN MARTYNUIK ROBINSON, Appellant
V.
WILBUR HAH, Appellee ________________________________________________________________________
On Appeal from the 260th District Court Orange County, Texas Trial Cause No. D220288-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 Lauren
Martynuik Robinson’s TCPA Motion to Dismiss Appellee Wilbur Hah’s claims for
defamation, business disparagement, invasion of privacy, breach of contract, and
1 injunctive relief within the statutory time frame, and the Motion was denied by
operation of law. 1 See id. §§ 27.005(a), 27.008(a). In twelve issues, Robinson
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 Robinson’s TCPA
Motion to Dismiss and remand for proceedings consistent with this opinion.
I. Background
In 2022, Robinson approached Hah, a board-certified cosmetic surgeon, to
perform a breast augmentation on her. As part of the preoperative process, Robinson
and Hah signed a “Contract of Reasonable Expectations.” In that document,
Robinson acknowledged that she was undergoing an elective procedure that was not
medically necessary and 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
1Hah’s attorney filed a letter suggesting Robinson died after the parties filed
their appellate briefs. Since Robinson passed away after the trial court’s judgment but before this Court’s final disposition, we will proceed to adjudicate the appeal as if all parties were alive. See Tex. R. App. P. 7.1(a)(1). 2 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.”
Hah alleged that after Robinson underwent surgery, she and several other
patients began posting on social media about their experience with Hah. In August
2022, Hah sued Robinson and three other patients in separate lawsuits. He alleged
that Robinson “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
Robinson “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,” Robinson “published
defamatory, derogatory, mean-spirited, or negative comments or reviews on social
media[.]” He specifically claimed that Robinson “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
3 “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, Robinson asserted a general denial and raised the
following affirmative defenses: 1) there is a lack of consideration or failure of
consideration for the contract; 2) Robinson’s statements about Hah were true; 3) any
opinions Robinson gave about Hah are unactionable and do not support a claim for
defamation or disparagement; and 4) Robinson’s statements are protected speech
and an exercise of her right of association and are constitutionally protected by the
TCPA. In her Amended Answer, Robinson 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.
Robinson 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.” Robinson supported her TCPA Motion to
Dismiss with her affidavit and those of the three other patients Hah sued, Ashley
Melton, April Gage, and Courtney Chesson. Robinson argued the TCPA covered
4 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 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.”
Robinson 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, Robinson averred that she was familiar with the “Facebook Groups . . .
called ‘Botched Surgery in Orange Texas’ and ‘Locally Failed Cosmetic Surgeries’”
referenced in Hah’s lawsuit. She further averred that to the extent she discussed
Hah’s treatment of her with Melton, Gage, and Chesson, 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.” Chesson, Melton, and
5 Gage’s affidavits contained identical language. Robinson later supplemented her
Motion to Dismiss by attaching a corrected affidavit from Chesson in which she
clarified what she had posted. Robinson later filed a “Second Supplement to Anti-
SLAPP 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 Robinson or the other patients he sued to the extent they
are not experts and complained Robinson failed to present evidence of attorney’s
fees. Hah included Robinson’s signed “Contract of Reasonable Expectations” and
consent forms and incorporated screenshots from social media postings into the body
of his Response. 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 Robinson 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 Robinson breached the contract.
Hah alleged that Robinson posted “false, defamatory, derogatory, mean-spirited or
negative comments or reviews on social media designed to damage” his reputation
6 in breach of Robinson’s contract. Finally, Hah only asserted that he had shown a
prima facie case for his breach of contract claim 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;” “Commitment to Safety Consent;” “Breast
Augmentation Surgery Consent;” his affidavit; his Curriculum Vitae; various
screenshots; and his attorney’s affidavit and billing invoices. He asserted that
initially, Robinson “reported she was happy with [her] breast enhancement.” During
her post-operation recovery care, however, Robinson “developed an infection with
a very serious complication of impending implant extrusion with severe thinning of
overlying breast tissue[,]” which “required urgent removal of the breast implant” to
prevent additional serious complications. Hah contended that Robinson “agreed to
the need for urgent implant removal to prevent an impending life-threatening
infection.” Hah explained that he “refunded Defendant’s cost for elective cosmetic
service” while she remained in his care for the healing process before a “more
complex reinsertion implant procedure could be performed 6 to 9 months later[,]”
which he planned to do at no charge. The Amended Response contained the same
7 general arguments that the TCPA did not apply and only addressed his prima facie
case for breach of contract.
In his affidavit, Hah averred that Robinson 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 Robinson, his
recommended course of treatment, and his continued treatment of Robinson during
the post-operative period. He further averred that the four patients, including
Robinson, “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 Robinson or the three
other defendants to use or publish photos or videos of him, his exam rooms, offices,
or other patients.
The first page of screenshots attached to Hah’s First Amended Response
included a single post from Robinson that stated,
“Idc who knows anymore at this point & what they have to say about it. This is my body, this is my story & I want people to be aware of what
8 this so called surgeon is doing to people!!! It’s kind of self explanatory when you literally have to watch what you say about these people . . . GUILTY[.] As for me I will speak for myself.”
There were also posts from others unrelated to the lawsuit. Additionally, another
commenter directed individuals to the “Botched Surgery in Orange Texas” Group
and wrote, “When someone has some serious malpractice problems going on, but
you can’t say anything without being threatened. I guess this is the next best option.
I’ve [sic] you’ve been botched, this is the place for you.” The second page of
screenshots attached to Hah’s Amended Response showed that Robinson changed
the name of the group “Botched Surgery in Orange Texas” to “Locally Failed
Cosmetic Surgeries.” The second page also included a screenshot from someone
identified only as “Group participant” and referred to the patient in the third person
stated, “Botched by a cosmetic surgeon in Orange, TX. Implants had to be removed
because it was literally fixing to fall out of her skin because he scraped her scar tissue
down to paper thin!” The third page of screenshots included post by someone
identified as “Group participant” on the “Botched Surgery in Orange Texas” page
and noted, “Something has go [sic] to be done soon[.] Another women [sic] has
recently been severely injured by this moron[.] Please come forward even if it is
anonymous!!” Another “Group participant” post stated, “His wife came on here
trying to defend them. I guess they are guilty[.]” The second and third pages of
9 screenshots also included photographs, including those of medication bottles, with a
statement from an unidentified commenter, “That’s not even half of the meds they
were shoving down my throat every week to do everything they could to prevent
something else from happening.”
Robinson also filed “Objections to Various Unauthenticated ‘Screenshots’
and Medical Records.” Robinson objected that the screenshots, images, and medical
records were not properly authenticated and were inadmissible. Robinson argued
that the court and parties were “left to speculate as to where they are from, who
published them, and in many instances, it is even difficult to read the writing.
Similarly, the apparent medical records are not in any way authenticated or proven
up.”
The trial court heard the Motions to Dismiss filed by Gage, Chesson, and
Robinson during the same hearing. Robinson 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. Robinson further
argued that none of the screenshots were authenticated and that “there has not been
any identification of what the alleged defamatory comment is.” Robinson and the
other patients contended that the pleadings that should be considered were those on
10 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. Robinson and the other patients went through each
cause of action and explained why Hah failed to make a prima facie case.
At the hearing, Hah sought to offer live testimony to discuss certain videos
and authenticate screenshots. Robinson 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, Robinson
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 Robinson’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
11 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
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
12 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
TCPA defines the “[e]xercise of the right of free speech” as “a communication made
in connection with a matter of public concern.” 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
13 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.” Lipsky, 460 S.W.3d
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 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, Robinson 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
14 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.
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
15 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 stated, “under the TCPA, the
communication on which the suit is based must have some relevance to the public
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. 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. Her posts, as well as those of the other patients he sued, addressed what she
believed to be a negative surgical experience. Other courts have determined that
16 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
healthcare professional’s competence related to matter of public concern under the
TCPA). The fact that people accessed or visited the Facebook groups labeled
“Botched Cosmetic Surgeries in Orange Texas” and “Local Failed Cosmetic
Surgeries” could 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). Robinson’s posts did not simply address private business negotiations in an
arms-length transaction, rather they explained what she described as her negative
experience with a local surgeon, referenced the alleged substandard quality of a
health professional’s treatment of patients, were made for reasons that relate to
17 public health and safety, and were made to a public audience. See Lippincott, 462
S.W.3d at 509–10. As such, Robinson’s posts involved a “matter of public concern,”
and thus she exercised her right of free speech. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.001(3).
Hah’s primary complaint about Robinson 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 the screenshot does not
identify the doctor, if this is a post that Hah attributed to Robinson, 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 Robinson 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
18 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, Robinson 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, Robinson
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 Robinson, we
now turn to whether Hah met his burden to establish a prima facie case for each
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 Robinson
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
19 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:
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 states 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
20 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.
2. Issue Four: Business Disparagement
In issue four, Robinson 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
21 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 causes
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
Robinson made as the basis of his business disparagement claim. In his Response
and Amended Response to Robinson’s TCPA Motion to Dismiss, while he attached
screenshots and photographs, Hah does not address the essential elements of his
business disparagement claim or how any of Robinson’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 Robinson did
not offer expert testimony to opine that Hah acted below the standard of care. If
Robinson had filed a medical malpractice claim, we agree Robinson would be
required to comply with the Texas Medical Liability Act. See Tex. Civ. Prac. & Rem.
Code Ann. §§ 74.001–.507. However, Robinson has not sued Hah for medical
22 malpractice in this matter. Rather, Hah sued Robinson 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
Robinson 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
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 Robinson’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
23 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 each essential
element 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
Robinson 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
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. L. INST. 1977)) (other
citation omitted).
On appeal, Hah contends for the first time that Robinson’s statements
constituted defamation per se and as such Hah had no obligation to show proof of
24 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
statement is defamatory per se is generally a question of law. See id. 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
Robinson’s TCPA Motion to Dismiss. While he generally attached screenshots of
Robinson’s social media posts to his Response, he did not explain which of these
25 statements were defamatory, the defamatory nature of the statements, or specify how
Robinson’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 do here. 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,
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.
26 4. Issue Six: Invasion of Privacy
In issue six, Robinson 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,
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
27 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 Robinson 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 Robinson or the other patients may have used Hah’s image,
Hah failed to show that Robinson appropriated his image to take advantage of the
value associated with Hah’s name or image. See, e.g., United Locating Services, LLC
28 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, Robinson argues that Hah failed to make a prima facie case for
his breach of contract claim by clear and specific evidence. Robinson specifically
challenges the contract’s validity and contends that Hah failed to provide evidence
of damages proximately caused by Robinson’s breach.
Once Robinson showed the TCPA applied to Hah’s claim, Hah needed to
establish “by clear and specific evidence a prima facie case for each essential
element” of his alleged breach of contract claim. See Tex. Civ. Prac. & Rem. Code
29 Ann. § 27.005(c); S & S Emergency Training Solutions, Inc. v. Elliot, 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”
Robinson signed constituted a valid contract, Hah must still establish damages
caused by Robinson’s breach. See id.; see also Tex. Civ. Prac. & Rem. Code Ann. §
27.005(c). Hah pleaded in his Petition that as a result of Robinson’s breach, he has
“suffered and continues to suffer actual damages” and generally averred in his
affidavit that Robinson 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–
30 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, Robinson 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.
31 D. Issues Nine through Twelve: Affirmative Defenses
In issues nine through twelve, Robinson 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
Robinson 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
Robinson’s remaining issues. See Tex. R. App. P. 47.1.
IV. Conclusion
To summarize, we conclude that Robinson 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 Robinson’s TCPA Motion to Dismiss. We reverse the trial court’s
denial of Robinson’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,
32 invasion of privacy, breach of contract, and injunctive relief claims, and instruct the
trial court to award Robinson 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.