OPINION
Opinion by
Justice MOSELEY.
Warren Whisenhunt sued Matthew Lip-pincott and Creg Parks for defamation, tortious interference with existing business relationships, tortious interference with prospective business relationships, and civil conspiracy. Lippincott and Parks sought dismissal of these claims pursuant to the recently-enacted Texas Citizens Participation Act (TCPA), also known as the Anti-SLAPP
statute, which is contained in Chapter 27 of the Texas Civil Practice and Remedies Code. The TCPA is designed to prevent plaintiffs from bringing frivolous lawsuits based on an exercise of free speech. It provides for a pre-discovery dismissal mechanism that requires a plaintiff to make a prima facie case on each claim by “clear and specific evidence” to avoid dismissal of the suit and the imposition of attorney’s fees and sanctions. Applying the TCPA, the trial court dismissed all of Whisenhunt’s claims, except for his claim for defamation; in addition, attorney’s fees were awarded to Lip-pincott and Parks. Because we conclude that the TCPA did not apply to Whisen-hunt’s suit (this being an issue dispositive of the points of error raised by both parties), we reverse the trial court’s judgment and remand the case to the trial court for further proceedings.
I. Facts Giving Rise to a Private Dispute
Whisenhunt is a Certified Registered Nurse Anesthetist who is a member and Vice President of SafeNET Anesthesia
Services, P.L.L.C. (“SafeNET”). SafeN-ET became “an independent contractor and exclusive provider of anesthesiology services for a company called First Surgery Suites, LLC (‘FSS’).” Whisenhunt is also a partner in FSS and owns approximately five percent of that company.
In May 2010, Lippincott was hired as an administrator for FSS and immediately suggested that his wife, who was an anesthesiologist, should work at FSS despite the exclusive contract with SafeNET which remained effective for a set term. FSS hired Parks and his company, Alliance Managed Healthcare, L.L.C. (“AMH”), in January 2011 to administer the business of FSS. Parks worked under Lippincott’s direction, and “the two began jointly managing the daily operations and administration of FSS.”
Whisenhunt’s petition alleged that Lip-pincott was an employee or partner of AMH and that “[sjhortly after Parks’ assumption of the position, both Defendants proposed replacing SafeNET with another anesthesiology provider at FSS,” which Whisenhunt characterized as “an anticipated breach of the companies’ exclusive anesthesia services contract.” In May 2011, Parks and Lippincott allegedly contacted third parties and interviewed alternative providers of anesthesia services, “pressuring Whisenhunt to alter the exclusivity provisions of the contract with FSS.” The petition claimed that Parks told members of FSS and three other parties that Whi-senhunt had been responsible for the loss of surgical patients at FSS.
Parks was terminated by FSS March 28, 2012, as a result of the FSS partners’ decision that he, according to Whisen-hunt’s petition, had “grossly mismanaged collections as well as other acts of incompetence.” Whisenhunt’s petition claimed that Parks and Lippincott continued publishing disparaging comments about Whi-senhunt to others interested in conducting business with him even after Parks’ termination, including charges that Whisenhunt had sexually harassed the facility’s nurses, had engaged in fraudulent behavior, was unavailable for surgeries, and was incompetent as an anesthetist. Attached to Whisenhunt’s petition were internal emails Lippincott had sent in May 2012 that contained the following language:
Most recently multiple departing employees have made the following statements to me, and I am under the impression that they have filed reports to this effect with Board of Nursing and other regulatory groups, but I have no idea how to confirm that. Also, I have no idea if these are to be treated as unsubstantiated claims from individuals, or if there are obligations for FSS to handle them in a certain way:
• SafeNet owner representing self to be a physician — witness statement only.
• Continued violation of sterile protocol policy — witness statement only.
• SafeNet owner endangering patients for personal financial gain by ordering staff to proceed with cases when during pre op it is discovered that patients have eaten recently or have cardiac issues that should be assessed first. — witness statement only.
• Obstruction of reporting processes and corrective action — witness statements
• Reports of harassment going undocumented. — witness statements
Other reports on file, some or all of which may have been submitted to the Board of Nursing:
Incident reporting form
#
00001
States that falsification of scrub tech record on 11/2/2010 and 12/17/2010 was
at the direction of Administrator and Director of Nursing Warren Whisen-hunt, (not sure if Warren still had the DoN [
] title at this time but the report describes him as such). States that Maria and Leigh Ann Simpson were instructed to do this by Warren. Report prepared by Maria and signed by Maria, Leigh Ann, Josh Green and Tina Bul-lard. It is not specifically stated when Tina learned of this, and who told her about it.
Incident reporting form
#
00001
States that on 2/3/2011 Warren left before a 1 year old child had met discharge criteria. It was prepared by Leigh Ann and signed by Maria and Janet.
Incident reporting form
#
00005
States that on 3/31/2011 Warren failed to provide adequate coverage for pediatric cases. It was prepared and signed by Maria.
Incident reporting form
#
00006
States that Warren placed an IV when Tina was supposed to do so, in addition to administering a different narcotic than was ordered prior to pre-op or patient consent being completed. It was prepared by Leigh Ann and is signed by Leigh Ann and Tina.
Other reports for which there are some records such as written statements and/or presumably Board of Nursing complaint records:
• Witnesses supported reports of workplace sexual harassment and unwanted physical contact by a superior and attempts to make inappropriate contact with employee outside of the workplace. — multiple witness statements, emails, etc.
• Reports of collecting cash and checks from patients and ordering employees not to make receipts or other records were witnessed and reported by multiple employees, several of which are still employed.
• Participation in allowing the hiring of an employee ineligible for employment due to criminal record.
Issues reported and documented by staff that the DoN is responsible for preventing. Scans of chart, log and other documents have been provided and can be made available:
• 2 reports of wrong physician name on consent.
• Reports of patient arm bands not being used.
• Required confirmation from DoN of completion of patient order and chart review, etc. not provided as required by policy.
• Chart status, case detail, etc. not recorded anywhere less than 24 hours before case is scheduled to begin.
• Failure to comply with DoN chart
&
case review/“Check off’ requirement for all cases.
• Cseope patient who was fed when he should not have been preoperatively, causing him to become ill. Reported by third party medical staff.
• 2 hour wait by patient in pre-op with no one coming to check on her. (hand written report), when reported to FSS owners DoN and Administrator took action making it very difficult for any incidents like this to be identified and reported to the Medical Executive Board, QAPI or other entities.
• Pre-initialing central scheduling sheets before patient and other data had been received, reviewed, etc.
Some of the supporting documents available include:
2 reports of wrong physician name on consent. Example shows Dr. Hester referenced at the top of the page and Dr. Hackbarth (the physician providing the treatment) at the bottom.
Scan # 102313
Scan # 102303
Reports of patient arm bands not being used.
Scan # 102239
Required confirmation from DoN of patient order review, completion, etc. not provided as required by policy. Patient case scheduled without these steps completed.
Scan # 155528
Chart status, case detail, etc. not recorded anywhere less than 24 hours before case begins — and several days after cases had been scheduled. In this example there was none of the required data available as of 4/16 for 6 cases that took place on 4/17.
Scan # 155341
Failure to comply with DoN chart
&
case review/“Check off’ requirement for all cases, prior to cases being scheduled.
Scan # 155441
Scan # 155152
Following attachment was sent after the cases listed were performed (showing that the documentation was still incomplete):
Scan #155252, 123409, 123458, 123545, 123649,123718,123328,123344 Despite having nearly 8 months to complete the work, little to nothing has been completed for infection control programs and other survey preparedness activities.[
]
Whisenhunt filed suit November 16, 2012, against Lippincott and Parks for defamation, tortious interference with existing and prospective business relationships, and conspiracy to interfere in business relationships.
Whisenhunt complained that the various unsavory statements about him were untrue. To partially show the untruthfulness of the statements, Whisen-hunt produced an affidavit from Gary Boyd, a physician and the Medical Director of FSS, stating that FSS received no formal or informal complaints against Whisenhunt until after Parks was fired and that FSS had terminated its contractual relationships with AMH. Boyd stated that CSS was “very happy with the quality of the nurse anesthesia services that have been provided by [SafeNet] [and] Whisen-hunt” and described Whisenhunt as “very professional.”
Lippincott and Parks moved to dismiss the suit January 13, 2013, interposing the TCPA as a bar to Whisenhunt’s claims. The filing of such a claim abates any discovery until the issue of its applicability is resolved.
Whisenhunt responded to the motion to dismiss by arguing the inapplicabili
ty
of the TCPA and claiming, alternatively, that even if the chapter applied to the suit he had brought, the court could not dismiss the action because he could establish “by clear and specific evidence a prima facie case for each essential element of the claim in question.” Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c) (West Supp.2012).
The trial court entered its ruling on this controversy by order entered March 4, 2013, wherein it found that Whisen-hunt “met the minimum threshold to proceed with the defamation cause of action” but did not “provide clear and specific evidence to proceed with the tortious interference claims and the claim of conspiracy.” On March 15, 2013, the trial court denied the motion to dismiss “with regard to Plaintiffs claim for Defamation” but granted the motion to dismiss “with regard to Plaintiffs claims for Tor-tious Interference with Existing Business Relationships, Tortious Interference with Prospective Business Relationships and Conspiracy to Interfere with Business Relations.” The trial court also awarded court costs and $2,887.50 in attorney’s fees
to Lippincott and Parks based on their written claim for fees and their attorney’s affidavit.
II. The TCPA Does Not Apply
Lippincott and Parks bore the initial burden of demonstrating the TCPA’s applicability.
Wholesale TV & Radio Ad-ver., LLC v. Better Bus. Bureau of Metro. Dallas, Inc.,
No. 05-11-01337-CV, 2013 WL 3024692, at *2 (Tex.App.-Dallas Jun. 14, 2013, no pet.) (mem. op.);
Better Bus. Bureau of Metro. Dallas, Inc. v. BH DFW, Inc.,
402 S.W.3d 299, 307 (Tex.App.-Dallas 2013, pet. filed).
The trial court’s initial determination that Lippincott and Parks showed by a preponderance of the evidence that the legal action was based on their exercise of free speech is subject to de novo review.
KTRK Television, Inc. v. Robinson,
409 S.W.3d 682, 688-89 (Tex.App.-Houston [1st Dist.] 2013, no pet. h.) (citing
Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd.,
No. 01-12-00581-CV, 416 5.W.3d 71, 80-81, 2013 WL 5761051, at *6
(Tex.App.-Houston [1st Dist.] May 2, 2013, no pet. h.)).
Both parties believe the rules of statutory construction support their respective positions. Since the issue of statutory construction is a question of law, we review it de novo.
Molinet v. Kimbrell,
356 S.W.3d 407, 411 (Tex.2011);
R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water,
336 S.W.3d 619, 624 (Tex.2011). When construing a statute, our primary objective is to ascertain and give effect to the Legislature’s intent. Tex. Gov’t Code Ann. § 312.005 (West 2013);
Molinet,
356 S.W.3d at 411. “We look first to the statute’s language to determine that intent, as we consider it ‘a fair assumption that the Legislature tries to say what it means, and therefore the words it chooses should be the surest guide to legislative intent.’ ”
Leland v. Brandal,
257 S.W.3d 204, 206 (Tex.2008) (quoting
Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
996 S.W.2d 864, 866 (Tex.1999));
see Molinet,
356 S.W.3d at 411. We consider the statute as a whole rather than focusing upon individual provisions.
TGS-NOPEC Geophysical Co. v. Combs,
340 S.W.3d 432, 439 (Tex.2011). If a statute is unambiguous, we adopt the interpretation supported by its plain language unless such an interpretation would lead to absurd results.
Id.
(citing
Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care,
145 S.W.3d 170, 177 (Tex.2004)).
The right of free speech is guaranteed under both the United States
and Texas
Constitutions. The tort of defamation creates an exception to these broad guarantees.
Gertz v. Robert Welch, Inc.,
418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974);
see also Cain v. Hearst Corp.,
878 S.W.2d 577, 582 (Tex. 1994) (noting “[e]very defamation action that the law permits necessarily inhibits free speech”). The TCPA recognizes the need to protect those filing meritorious defamation claims but seeks to punish or deter, through the assessment of attorney’s fees and sanctions, those who abuse this tort action to silence others who otherwise have a constitutional right to speak freely.
The stated purpose of the TCPA is “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 (West Supp.2012).
The “[e]xercise of the right to free speech” is defined as “a communication [
] made in connection with a
matter of public concern.” Tex. Civ. Prac. & Rem.Code Ann. § 27.001(3) (West Supp. 2012). The phrase “[m]atter of public concern” is defined by the statute as “an issue related to: health or safety; environmental, economic, or community well-being; a public official or public figure; or a good, product, or service in the marketplace.” Tex. Civ. Prac.
&
Rem.Code Ann. § 27.001(7) (West Supp.2012).
Lippincott and Parks argued that the “email string presented by Whisenhunt” and authored by Lippincott “[is] related to matters of public concern in the areas of health and safety, community well-being and a service in the marketplace.” Whi-senhunt responds by arguing that interpretation of the statute in that manner conflicts with the statute’s also-stated purpose of protecting “the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ. Prac. & Rem.Code Ann. § 27.002.
“[N]ot all speech is of equal First Amendment importance. It is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment’s protection.’ ”
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.,
472 U.S. 749, 758-59, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (footnote omitted) (quoting
First Nat’l Bank of Boston v. Bellotti,
435 U.S. 765, 776, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)). The purpose of the statute is to “petition, speak freely, associate freely,
and otherwise participate in government.”
Tex. Civ. Prac.
&
Rem.Code Ann. § 27.002 (emphasis added). As stated in
Dun & Bradstreet,
“[t]he First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ ”
Dun & Bradstreet,
472 U.S. at 759, 105 S.Ct. 2939 (quoting
Roth v. United States,
354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957));
New York Times Co. v. Sullivan,
376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). “ ‘[S]peeeh concerning public affairs is more than self-expression; it is the essence of self-government.’ ”
Dun & Bradstreet,
472 U.S. at 759, 105 S.Ct. 2939 (quoting
Garrison v. Louisiana,
379 U.S. 64, 74-75, 85 S.Ct. 209,13 L.Ed.2d 125 (1964)).
There is a distinction between the protections afforded to private speech versus public speech.
Hancock v. Variyam,
400 S.W.3d 59, 65 (Tex.2013) (citing
Dun & Bradstreet,
472 U.S. at 760,105 S.Ct. 2939) (speech solely in individual interest of speaker and his specific business audience warrants no special protection when wholly false and clearly damaging to victim’s business reputation). The phrase “matter of public concern” is not new to our jurisprudence. When a defamatory statement involves a matter of public concern, private individuals suing for defamation have long been required to prove actual malice, but even so, this assumes that the matter was publicly communicated, usually through a media defendant.
See Bentley v. Bunton,
94 S.W.3d 561, 580 (Tex.2002);
Klentzman v. Brady,
312 S.W.3d 886, 898 (Tex.App.-Houston [1st Dist.] 2009, no pet.). By including the phrase “otherwise participate in government,” it appears the Legislature intended to protect free speech that rises to such a level that it can be considered participation in government. In other words, the speech must be exercised in the form of public communication.
“Under the Code Construction Act, we may look to the statute’s legislative history in gleaning the Legislature’s intent.”
Phillips v. Beaber,
995 S.W.2d 655, 658 (Tex.1999) (citing Tex. Gov’t Code Ann. § 311.023(3) (West 2005)). Our reading of the TCPA is bolstered by the sponsor’s May 14, 2011, statement of intent, which contains the following reasoning for enacting the statute:
Citizen participation is the heart of our democracy. Whether petitioning the government, writing a traditional news article, or commenting on the quality of a business, involvement of citizens in the exchange of idea[s] benefits our society. Yet frivolous lawsuits aimed at silencing those involved in these activities are becoming more common, and are a threat to the growth of our democracy. The Internet age has created a more permanent and searchable record of public participation as citizen participation in democracy grows through self-publishing, citizen journalism, and other forms of speech. Unfortunately, abuses of the legal system, aimed at silencing these citizens, have also grown. These lawsuits are called Strategic Lawsuits Against Public Participation or “SLA[P]P” suits.
Twenty-seven states and the District of Columbia have passed similar acts, most commonly known as either “Anti-SLAPP” laws or “Citizen Participation Acts” that allow defendants in such cases to dismiss cases earlier than would otherwise be possible, thus limiting the costs and fees. The Texas Citizen Participation Act would allow defendants— who are sued as a result of exercising their right to free speech or their right to petition the government — to file a motion to dismiss the suit, at which point the plaintiff would be required to show by clear and specific evidence that he had a genuine case for each essential element of the claim. In addition, if the motion to dismiss is granted, the plaintiff who has wrongly brought the lawsuit may be required to pay attorney’s fees of the defendant.
C.S.H.B. 2973 amends current law relating to encouraging public participation by citizens by protecting a person’s right to petition, right of free speech, and right of association from meritless lawsuits arising from actions taken in furtherance of those rights.
Senate Comm, on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., RS (2011). The statement of intent confirms the concept gathered from reading the statute as a whole that the Legislature was attempting by this law to protect a citizen’s public participation.
Otherwise, pre-discovery dismissals, attorney’s fees, and sanctions would loom over any plaintiff filing an action for private defamatory speech, which would have the effect of chilling meritorious private defamation suits, a result neither intended nor required under the TCPA.
Lippincott and Parks argue that to the extent the emails refer to Whisen-hunt, “they relate to his conduct as a nurse and whether that conduct should be reported to the Texas Board of Nursing.”
They cite to a recent case where the Houston First District Court found that “[t]he business of operating an assisted living facility is a highly regulated one,” and held that a newspaper which published allegedly defamatory statements was protected by the TCPA because it was communicating a matter of public concern and was, thus, exercising its right of free speech.
Newspaper Holdings, Inc. v. Crazy Hotel
Assisted
Living, Ltd.,
No. 01-12-00581-CV, 416 S.W.3d 71, 81, 2013 WL 5761051, at *7 (Tex.App.-Houston [1st Dist.] Oct. 24, 2013, no pet. h.). The court also noted that the newspaper’s statements were a matter of public concern because residents of an assisted living facility retain the right to choose their own health care professionals.
Id.
However,
Crazy Hotel
differs from the case here because it involved a case where information was published to the public in a newspaper, whereas the allegations in this case were not.
We also bear in mind the circumstances under which the statute was enacted and the consequences of any particular construction.
Phillips,
995 S.W.2d at 658 (citing Tex. Gov’t Code Ann. § 311.023(2), (5)). Further, we presume that the Legislature acted with knowledge of the common law and court decisions.
Id.
Our review of TCPA caselaw reveals dismissals involving articles published to the public, business ratings available to the public, and statements made on websites about public figures, goods, products, or services. In all of these free speech cases, the allegedly actionable statements not only involved matters of public concern, they were also readily available to the public.
See generally Robinson,
409 S.W.3d 682 (involving suit brought against television broadcaster for defamation following news story on financial mismanagement at local school);
Crazy Hotel Assisted Living, Ltd.,
416 S.W.3d 71, 2013 WL 5761051 (involving articles published in newspaper relating to problems at assisted living center);
Rehak Creative Servs., Inc. v. Witt,
404 S.W.3d 716 (Tex.App.-Houston [14th Dist.] 2013, pet. denied) (involving suit by company against candidate running for office who posted on website that company contributed money to opponent’s campaign to get government contracts);
Wholesale TV & Radio Advertising, LLC,
2013 WL 3024692 (involving BBB’s F rating of business);
BH DFW, Inc.,
402 S.W.3d 299 (same);
Better Bus. Bureau of Metro. Dallas, Inc. v. Ward,
401 S.W.3d 440 (Tex. App.-Dallas 2013, pet. filed) (same);
Avila v. Larrea,
394 S.W.3d 646 (Tex.App.-Dallas 2012, pet. denied) (suit brought by lawyer against Spanish television station for broadcasting allegedly defamatory statements and posting them on internet suggesting lawyer was defrauding undocumented immigrants).
Based on this case
study, we believe that if a person is not exercising his right to speak freely in public, the TCPA will not apply to suits filed against him.
A review of the anti-SLAPP legislation in other states, which was referenced in the sponsor’s statement of intent, also supports the conclusion reached here. The anti-SLAPP statutes in California, the District of Columbia, Louisiana, Maryland, Nevada, Vermont, and Washington specifically protect only those statements made to the public or in a public forum.
Because anti-SLAPP statutes in the following jurisdictions only protect either the right to petition or speech made before a governmental body, there is no dismissal mechanism for communications made about matters of public concern that are not made in a public forum: Arizona, Arkansas, Delaware, Florida, Georgia, Guam, Hawaii, Illinois, Maine, Massachusetts, Minnesota, Nebraska, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Tennessee, and Utah.
The Anti-SLAPP legislation adopted by Indiana
and Oregon,
respectively, contains language similar to the TCPA, but no cases in those jurisdictions have applied the anti-SLAPP law to private speech.
Considering the language of the statute as a whole, the Legislature’s statement of intent, and existing law, which was referenced by the Legislature, we conclude that the TCPA does not apply to speech that is only privately communicated. Only under such an interpretation can both purposes of the TCPA be served. Thus, the TCPA did not apply to the claims raised against Lippincott and Parks.
III. CONCLUSION
We reverse the trial court judgment applying the TCPA and remand this case to the trial court for further proceedings consistent with this opinion.