ACCEPTED 06-13-00051-CV SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/2/2015 10:43:59 AM DEBBIE AUTREY CLERK
NO. 06-13-00051-CV ________________________________________________________________ RECEIVED IN 6th COURT OF APPEALS IN THE COURT OF APPEALS TEXARKANA, TEXAS FOR THE SIXTH DISTRICT OF TEXAS7/2/2015 10:43:59 AM AT TEXARKANA, TEXAS DEBBIE AUTREY Clerk _________________________________________________________________
WARREN WHISENHUNT, Appellant,
v.
MATTHEW LIPPINCOTT and CREG PARKS, Appellees and Cross-Appellants, __________________________________________________________________
On Appeal from the County Court at Law of Hopkins County, Texas Cause No. CV41303 The Honorable Amy M. Smith Presiding ______________________________________________________________
APPELLEES AND CROSS-APPELLANTS, MATTHEW LIPPINCOTT AND CREG PARKS’, BRIEF ON REMAND
______________________________________________________________
Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
ORAL ARGUMENT REQUESTED
Appellees’ and Cross-Appellants’ Brief on Remand – Page i REQUEST FOR ORAL ARGUMENT
Appellees and Cross-Appellants request oral argument. Because of the
recent passage of the statute at issue, the recent flurry of appellate opinions
interpreting the statute and, therefore, the unique nature of the issues presented in
this case, oral argument will assist the court in reaching its decision.
Appellees’ and Cross-Appellants’ Brief on Remand – Page ii IDENTITY OF PARTIES AND COUNSEL
Appellant: Warren Whisenhunt
Appellant’s Counsel: Farbod Farnia State Bar No. 24078493 McCathern, L.L.P. Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219 Telephone: (214) 741-2662 Facsimile: (214) 741-4717
Appellees and Cross-Appellants: Matthew Lippincott and Creg Parks
Appellees’ and Cross-Appellant’s Counsel: Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
Appellees’ and Cross-Appellants’ Brief on Remand – Page iii REFERENCE TO THE PARTIES
Appellees and Cross-Appellants will refer to Appellant, Warren Whisenhunt
as “Whisenhunt” in their brief. They will refer to Appellees and Cross-Appellants
as “Lippincott” and “Parks.”
REFERENCE TO THE RECORD
Reference Meaning
C.R. ___ Clerk’s Record at page ___
S.C.R. ____ Supplemental Clerk’s Record at page ___
Appellees’ and Cross-Appellants’ Brief on Remand – Page iv TABLE OF CONTENTS
PAGE REQUEST FOR ORAL ARGUMENT………………………………….................ii
IDENTITY OF PARTIES AND COUNSEL………………………............……...iii
REFERENCE TO THE PARTIES........…………………………………………...iv
REFERENCE TO THE RECORD........…………………………………………...iv
TABLE OF CONTENTS………………………………………………………..…v
INDEX OF AUTHORITIES…………………………………………………........vi
STATEMENT OF THE CASE ………………………………………………........2
STATEMENT OF FACTS …………………………………………………...........3
STANDARD OF REVIEW ………………………………………………..............6
SUMMARY OF THE ARGUMENT ……………………………………...............6
ISSUE 1
Whisenhunt failed to meet his burden of presenting clear and specific evidence as to each element of his causes of action........................................6
SUMMARY …………………………………………………………………..........7
ARGUMENT AND AUTHORITIES ………………………………………..........7
CONCLUSION ……………………………………………………………..........25
PRAYER …………………………………………………………………............25
CERTIFICATE OF COMPLIANCE…………………………………………….26
CERTIFICATE OF SERVICE ……………………………………………….......27
Appellees’ and Cross-Appellants’ Brief on Remand – Page v INDEX OF AUTHORITIES
CASES PAGE
Avila v. Larrea, 394 S.W.3d 646, 652-653 (Tex. App.—Dallas 2013, writ pending).....................................................................................................................6
Bilbrey v. Williams, 2015 Tex. App. LEXIS 2359 (Tex. App.—Fort Worth 2015, no writ)....................................................................................................................22
Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005).............................................18
Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014, no writ)...............23
Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995).........................................14
In re Lipsky, ___ S.W.3d. __, __ (Tex. 2015)...........................................................7
Lippincott and Parks v. Whisenhunt, 2015 Tex. LEXIS 347 (Tex. 2015)................2
Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.)..............20
Morgan Stanley & Co. v. Texas Oil Company, 958 S.W.2d 178 (Tex. 1998)........14
Plotkin v. Joekel, 304 S.W.3d 455, 487 (Tex. App.—Houston [1st Dist.] 2009, no pet.)..........................................................................................................................16
Serafine v. Blunt, 2015 Tex. App. LEXIS 4517 (Tex. App.—Austin 2015, no writ).........................................................................................................................24
Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010)..........................................................................................................................6
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)..........................19
Whisenhunt v. Lippincott, 416 S.W.3d 689, 692-694 (Tex. App.—Texarkana 2013)..........................................................................................................................2
Appellees’ and Cross-Appellants’ Brief on Remand – Page vi STATUTES
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011 (West Supp. 2012)......................................................................................................................2, 4
Appellees’ and Cross-Appellants’ Brief on Remand – Page vii NO. 06-13-00051-CV ________________________________________________________________
IN THE COURT OF APPEALS FOR THE SIXTH DISTRICT OF TEXAS AT TEXARKANA, TEXAS _________________________________________________________________
MATTHEW LIPPINCOTT and CREG PARKS, Appellees and Cross-Appellants, __________________________________________________________________
On Appeal from the County Court at Law of Hopkins County, Texas Cause No. CV41303 The Honorable Amy M. Smith Presiding ______________________________________________________________
APPELLEES AND CROSS-APPELLANTS, MATTHEW LIPPINCOTT AND CREG PARKS’, BRIEF ON REMAND
______________________________________________________________
TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:
Appellees and Cross-Appellants, Matthew Lippincott and Creg Parks, file
this brief on remand requesting that this Court affirm the Trial Court’s Final
Judgment and would show as follows:
Appellees’ and Cross-Appellants’ Brief on Remand – Page 1 STATEMENT OF THE CASE
Whisenhunt sued Parks and Lippincott, alleging defamation and other causes
of action, based on communications Parks and Lippincott allegedly made to third
parties about Whisenhunt. Parks and Lippincott filed a motion to dismiss pursuant
to the Texas Citizens Participation Act (“TCPA”). Tex. Civ. Prac. & Rem. Code
Ann. §§ 27.001-27.011 (West Supp. 2012).
This is an appeal of the trial court’s order granting in part and denying in part
Lippincott and Park’s motion to dismiss. Whisenhunt appealed Judge Smith’s
order and Parks and Lippincott filed a cross-appeal arguing that Judge Smith erred
by denying the motion as it related to Whisenhunt’s defamation claim and by
failing to award a sanction as required by the statute. This Court reversed Judge
Smith’s order, holding that the TCPA does not apply to speech that is privately
communicated. Whisenhunt v. Lippincott, 416 S.W.3d 689, 692-694 (Tex. App.—
Texarkana 2013).
The Texas Supreme Court reversed this Court’s decision holding that
Lippincott and Parks successfully demonstrated the applicability of the TCPA.
Lippincott and Parks v. Whisenhunt, 2015 Tex. LEXIS 347 (Tex. 2015). The
Supreme Court stated that this Court “must now consider, among other matters,
whether Whisenhunt met the prima facie burden the Act requires. Id. The Supreme
Court further stated that In re Lipsky, ___ S.W.3d. __, __ (Tex. 2015), squarely
Appellees’ and Cross-Appellants’ Brief on Remand – Page 2 addresses the standard a plaintiff must meet in order to establish a prima facie case
and ordered this court to consider this case in light of its opinion in Lipsky. Id.
STATEMENT OF FACTS1
On November 16, 2012, Whisenhunt sued Lippincott and Parks in Case
Number CV41303 in the County Court at Law of Hopkins County, Texas. (C.R. 2)
In his original petition Whisenhunt alleged that he is a Certified Registered Nurse
Anesthetist and was a member and vice president of a company called SafeNET
Anesthesia Services, P.L.L.C. (“SafeNET”). (C.R. 3) Whisenhunt alleged that
SafeNET was the exclusive provider for anesthesiology services for another
company, First Surgery Suites, LLC (“FSS”). (C.R. 3)
Whisenhunt also alleged in his original petition that Lippincott was hired as
an administrator of FSS in May 2010 and that he communicated to FSS that his
wife was an anesthesiologist and that she should be able to work for FSS. (C.R. 4)
He also alleged that Parks and his company Alliance Managed Healthcare, L.L.C.
were hired as an administrator of FSS and that both Parks and Lippincott
recommended to FSS that it hire another anesthesiology provider. (C.R. 4)
Whisenhunt went on to allege in his original petition that Parks and
Lippincott made communications and publications to other persons that attempted
1 A detailed statement of facts is included in Parks and Lippincott’s prior briefs in this court, but this section is provided for the convenience of the court.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 3 to have FSS breach its agreement with Whisenhunt’s company, alleging that
Whisenhunt was responsible for FSS losing surgical patients and accusing
Whisenhunt of sexual harassment, fraudulent behavior and incompetence. (C.R. 4-
5) Based on the factual allegations in his petition, Whisenhunt alleged the
following causes of action: (1) Defamation; (2) Tortious Interference with Existing
Business Relationships; (3) Tortious Interference with Prospective Business
Relationships; and (4) Conspiracy to Interfere with Business Relations. (C.R. 5-7)
Parks and Whisenhunt timely filed their answer on December 21, 2012.
(C.R. 18) They also timely filed a motion to dismiss pursuant to the Texas
Citizens Participation Act (“TCPA”), which provides for a dismissal of actions
involving the exercise of certain constitutional rights. Tex. Civ. Prac. & Rem. Code
Ann. §§ 27.001-27.011 (West Supp. 2012). (C.R. 23) The motion to dismiss stated
that Whisenhunt’s claims should be dismissed because they were based on, related
to, or were in response to Lippincott’s and Parks’ exercise of the right of free
speech, citing section 27.003 of the statute. (C.R. 23-24)
A hearing was set on the motion to dismiss for February 15, 2013 and
Whisenhunt’s attorneys were timely notified of it. On February 14, 2013
Whisenhunt filed his response to the motion to dismiss. (C.R. 26) Whisenhunt’s
response claimed that the motion to dismiss was improper under the Texas Anti-
SLAPP statute, that the Anti-SLAPP statute does not apply to commercial speech
Appellees’ and Cross-Appellants’ Brief on Remand – Page 4 and that the evidence attached to the response established a prima facie case of the
causes of action alleged by Whisenhunt. (C.R. 26-37) The only evidence attached
to Whisenhunt’s response to the motion to dismiss was three emails from
Lippincott and the affidavit of Gary Boyd. (C.R. 39-48 and Appendix 3)
The motion to dismiss hearing was held on February 15, 2013 and on March
15, 2013 Judge Smith signed an order granting in part and denying in part the
motion. (C.R. 49 and Appendix 1) Judge Smith dismissed Whisenhunt’s claims
for tortious interference with existing business relationships, tortious interference
with prospective business relationships and conspiracy to interfere with business
relations. (C.R. 49-50 and Appendix 1) She denied the motion with regard to
Whisenhunt’s defamation claim. (C.R. 49-50 and Appendix 1) She also ordered
that Whisenhunt pay Lippincott and Parks attorney’s fees in the amount of
$2,887.50 but she did not order the payment of a sanction. (C.R. 49-50 and
Appendix 1)
Whisenhunt filed his notice of appeal on May 15, 2013. (C.R. 52)
Lippincott and Parks filed their notice of cross-appeal on May 23, 2013. (S.C.R.
25) The remaining aspects of the procedural history of this case are set forth in the
Statement of the Case section above.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 5 STANDARD OF REVIEW The determination as to whether a party has met its burden in responding to
a TCPA motion to dismiss should be reviewed de novo as an issue of statutory
construction. Avila v. Larrea, 394 S.W.3d 646, 652-653 (Tex. App.—Dallas 2013,
writ pending), citing Tex. Lottery Comm’n v. First State Bank of DeQueen, 325
S.W.3d 628, 635 (Tex. 2010). In Avila, the court was reviewing, in part, the trial
court’s failure to grant a motion to dismiss under the TCPA and specifically
considered whether the plaintiff had met his burden of establishing a prima facie
case for each element of his claim by clear and specific evidence as required by the
statute. Avila, 394 S.W.3d at 657.
SUMMARY OF THE ARGUMENT
ISSUE 1 Whisenhunt failed to meet his burden of presenting clear and specific
evidence as to each element of his causes of action.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 6 SUMMARY
Lippincott and Parks’ motion to dismiss should have been granted in its entirety. Neither Whisenhunt’s original petition nor the evidence attached to his response to the motion to dismiss contained the level of detail or specificity that is required by the TCPA.
ARGUMENTS AND AUTHORITIES When the facts of this case are considered in light of the Supreme Court’s
analysis in Lipsky and in light of other recently issued opinions discussing the
topic, it is clear that Whisenhunt failed to meet the TCPA’s requirement that he
establish by clear and specific evidence a prima facie case for each essential
element of his claims.
In Re Lipsky
The Lipskys drilled a water well for their house. In re Lipsky, 2015 Tex.
LEXIS 350, *8 (Tex. 2015). Range later drilled two gas wells near the Lipskys’
property. Id. After that, the Lipskys started having problems with their water
production. Id. The Lipskys engaged an environmental consultant, Alisa Rich,
who confirmed the presence of methane and other gases in the Lipskys’ well. Id.
Lipsky made a video of himself lighting gas escaping from a garden hose attached
Appellees’ and Cross-Appellants’ Brief on Remand – Page 7 to the vent of his well and sent it to the Environmental Protection Agency. Id. The
EPA determined that Range’s activities had contributed to gas in the Lipskys’
water, but the Texas Railroad Commission conducted its own investigation and
concluded that Range was not responsible. Id.
The Lipskys sued Range for damaging their water supply. Id. Range
counterclaimed for civil conspiracy, aiding and abetting, defamation, and business
disparagement and added Rich as a third party defendant. Id. The Lipskys and
Rich filed a motion to dismiss the counterclaims pursuant to the TCPA which the
trial court denied.
The court of appeals reversed the trial court as to the counterclaims against
Lipsky’s wife and Rich and ordered that those claims be dismissed. Id. However,
the court of appeals held that the counterclaims against Lipsky should not be
dismissed. Id. Lipsky appealed to the Texas Supreme Court.
The primary issue before the Supreme Court was whether a plaintiff
opposing a TCPA motion to dismiss could rely on circumstantial evidence in its
response2. In re Lipsky at *10. The Supreme Court held that circumstantial
evidence may be enough to overcome a TCPA motion to dismiss. Id. But it also
held that “mere notice pleading – that is, general allegations that merely recite the
elements of a cause of action – will not suffice. Instead, a plaintiff must provide
2 Whether or not circumstantial evidence can be considered is not an issue in the instant case.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 8 enough detail to show the factual basis for its claim. 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.” Id.
Whisenhunt’s Pleading and Evidence
Whisenhunt’s original petition contains the following factual allegations that
are relevant to this appeal. In paragraph 12 it states that, “On or about June 29,
2011 Defendant Parks alleged to members of FSS and third parties interested in
transacting business with Plaintiff that Whisenhunt was responsible for the loss of
surgical patients at FSS as a result of Whisenhunt’s unavailability for particular
surgeries, basing these accusations on fabricated information.” (C.R. 4-5)
Paragraph 14 states, “Additionally, upon information and belief, Defendants Parks
and Lippincott published certain defamatory and disparaging remarks to persons
within FSS and third persons interested in business partnership with Whisenhunt.
Defendants falsely accused Whisenhunt of sexually harassing the facility’s nurses,
of fraudulent behavior, and of incompetence as an anesthetist, going so far as to
file false allegations against Whisenhunt with the Texas State Board of Nursing”
(C.R. 5)
Appellees’ and Cross-Appellants’ Brief on Remand – Page 9 In response to the motion to dismiss, Whisenhunt filed a written response
with two exhibits attached, A and B. (C.R. 26) Exhibit A purports to be a copy of
an email string between Matt Lippincott and other individuals along with
attachments to those emails. (C.R. 39 and Appendix 3) Exhibit B is an affidavit
signed by Gary Boyd, M.D. (C.R. 46 and Appendix 3) Importantly, no affidavit of
Whisenhunt was offered. Neither of the exhibits that were offered establishes by
clear and specific evidence a prima facie case for each essential element of
Whisenhunt’s causes of action.
In Exhibit A there are what appear to be three emails from Lippincott to
Joe Zasa, Brenda Myers and Reta Turner and an attachment to one of the emails.
(C.R. 39-45 and Appendix 3) There is no mention of Parks in Exhibit A and no
indication that he was involved in either the emails or the attachment. (C.R. 39-45
and Appendix 3) The first email, dated May 29, 2012 at 12:44 p.m. does not
mention Mr. Whisenhunt’s name. (C.R. 41 and Appendix 3) The email mentions
“HR reports” that Lippincott has collected. (C.R. 41 and Appendix 3) In response,
on May 29, 2012 at 2:51 p.m. Joe Zasa emails to Lippincott that “Reta Turner
handles this.” (C.R. 40 and Appendix 3) Lippincott then responds later the same
day with an email asking if he should forward a “high-level summary” to Reta to
which Zasa responds “yes.” (C.R. 40 and Appendix 3)
Appellees’ and Cross-Appellants’ Brief on Remand – Page 10 The last email in Exhibit A is dated May 30, 2012 at 12:01 p.m. and is from
Lippincott to Turner. (C.R. 40 and Appendix 3) It purports to attach a summary of
reports. (C.R. 40 and Appendix 3) The attachment to the emails states that it
“summarizes some, but not all of the information from reports that I have
received.” (C.R. 42 and Appendix 3) It is made clear throughout the summary that
Lippincott is merely passing along information and allegations provided to him by
other persons. (C.R. 42-45 and Appendix 3) For example, in the third paragraph of
the summary Lippincott states, “Most recently multiple departing employees have
made the following statements to me . . .” (C.R. 42 and Appendix 3) He later refers
to “other reports on file.” (C.R. 42 and Appendix 3) The incident reporting forms
mentioned in this portion of the summary mention Mr. Whisenhunt by name. (C.R.
42 and Appendix 3) The remainder of the summary is just that – a summary of
reports made by other people. (C.R. 42-45 and Appendix 3)
There is no supporting evidence, such as affidavits, to establish the context
of the emails. Nor is there any evidence to support any claim that any statement
made in the emails or attachment is false.
Exhibit B is the affidavit of Gary Boyd, M.D. (C.R. 46-48 and Appendix 3)
It specifically mentions Whisenhunt in only three of the eleven paragraphs. (C.R.
46-48 and Appendix 3) The affidavit states in paragraph 8 that, “Prior to the
Termination Date, neither FSS nor the Center had received any notices of any type
Appellees’ and Cross-Appellants’ Brief on Remand – Page 11 of formal or informal complaints from Parks or AMH related, directly or
indirectly, to the quality of the nursing services of any one or more of SNA,
Whisenhunt, Tait or Johnson in connection with nurse anesthesia services provided
by them to FSS and the Center.” (C.R. 47 and Appendix 3) In paragraph 10 the
affidavit states, “The undersigned acknowledges that FSS and the Center are very
happy with the quality of the nurse anesthesia services that have been provided by
SNA, Whisenhunt, Tait and Johnson to FSS and the Center.” (C.R. 47-4 and
Appendix 38) Finally, in paragraph 11, Boyd states, “Both FSS and the Center
consider each of SNA, Whisenhunt, Tait and Johnson to be very professional and
very capable in providing anesthesia services to all of the patients of the Center.”
(C.R. 48 and Appendix 3)
Exhibit B does not specifically address the emails or attachments contained
in Exhibit A. (C.R. 46-48 and Appendix 3) There is nothing contained in Exhibit B
that can be construed as claiming that anything contained in Exhibit A is false.
(C.R. 46-48 and Appendix 3)
There is no evidence of a prima facie case for tortious interference with business relationships
According to Whisenhunt, the elements for tortious interference with
existing business relationships are: (1) an existing business relationship subject to
Appellees’ and Cross-Appellants’ Brief on Remand – Page 12 interference, (2) a willful and intentional act of interference with the relationship,
(3) that proximately caused the plaintiff’s injury, and (4) caused damages or loss.
(Appellant’s Brief, p. 20). Neither the factual allegations in the original petition
nor the Lippincott emails and Boyd email provide evidence of each of these
elements.
The only business relationship mentioned in the evidence submitted by
Whisenhunt is the relationship between SafeNet and First Surgery Suites. (C.R. 47)
Therefore, that must be the relationship that Whisenhunt is alleging was tortiously
interfered with.
Neither the Boyd affidavit nor the Lippincott emails contain any evidence
that either Parks or Lippincott willfully and intentionally interfered with any
business relationship between Whisenhunt and anyone else. There is no evidence
of any activity by Parks in either the emails or the Boyd affidavit. As to Lippincott
the only potential evidence is the email string in which Lippincott relays
complaints made about Whisenhunt by others to Reta Turner. (C.R. 40-45) But
there is no indication that those emails were sent in an effort to interfere with
Whisenhunt’s relationship with FSS. Whisenhunt alleges in his brief that the
statements made in the Lippincott emails are false, but there is no evidence that
Appellees’ and Cross-Appellants’ Brief on Remand – Page 13 any statements in the emails are false3. The only mention of intent in the original
petition is a bare allegation of intentional conduct. (C.R. 6)
There is also the fact that Lippincott was working for FSS when he sent the
emails – his email address was matt.lippincott@firstsurgerysuites.com.
Whisenhunt acknowledges that Lippincott was acting on behalf of FSS.
(Appellant’s Brief, p. 1). A party can not tortiously interfere with its own contract.
Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995). And generally, a
corporation’s agent cannot be held liable for interfering with his principal’s
contract. Id. In order to prevail on a claim of tortious interference with contract
under these circumstances a plaintiff must show that the defendant acted in a
fashion so contrary to the corporation’s best interests in that his actions could only
have been motivated by personal interests4. Id. There is simply no evidence on this
point. The Lippincott emails can be construed as being sent in the interest of FSS
in order to insure that it is in compliance with state regulations with regard to
nursing. There is no evidence from anyone, let alone anyone with FSS, to indicate
that Lippincott’s sending of the emails was solely motivated by his personal
interests.
3 Throughout this section of Whisenhunt’s appellant’s brief, he refers to allegations in his pleadings as evidence. Appellant’s Brief, p. 21. As will be discussed in a later section of this brief, Whisenhunt’s pleadings should not be considered as evidence. 4 The Holloway case discusses the tort of tortious interference with contract, not tortious interference with business relationships. But the premise in Holloway that an agent cannot, in most cases, interfere with his company’s contract, was extended to the tort of tortious interference with prospective business relationships in Morgan Stanley & Co. v. Texas Oil Company, 958 S.W.2d 178 (Tex. 1998). It is, therefore, assumed, that if Texas recognizes the tort of tortious interference with business relationships it would apply this exception to it as well.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 14 Nor is there any evidence of a causal connection between any acts of
Lippincott or Parks and any damage to Whisenhunt. The only evidence of the
current state of Whisenhunt’s relationship with FSS is found in paragraphs 10 and
11 of the Boyd affidavit in which Boyd states that FSS is “very happy with the
quality of nurse anesthesia services that have been provided by … Whisenhunt”
and that FSS considers Whisenhunt “very professional and very capable in
providing nurse anesthesia services[.] (C.R. 47-48). This hardly amounts to
evidence of proximate cause and, in fact, could be construed as the opposite.
Finally, there is no specific allegation or any evidence of any damage to
Whisenhunt. Paragraph 21 of the original petition merely makes a conclusory
statement that, “Defendants’ intentional conduct has and will continue to cause
significant injuries and damages to Plaintiff, including but not limited to loss of
good will, loss of renewal and prospective business, loss of income and profits, and
loss or permanent injury to the value of Whisenhunt’s business reputation, all to
the irrevocable detriment of Plaintiff.” (C.R. 6) Also, and as stated in the previous
paragraph, Boyd’s affidavit indicates that the relationship between Whisenhunt and
FSS is in good condition. There is no statement concerning any damage to
Whisenhunt in the Boyd affidavit. Likewise, there is no statement of any sort in
the Lippincott emails about damage to Whisenhunt.
Because Whisenhunt presented no specific pleading and no evidence as to at
Appellees’ and Cross-Appellants’ Brief on Remand – Page 15 least three of the four elements of his claim for tortious interference with business
relationships, he failed to meet his burden pursuant to Section 27.005(c) of the
TCPA. Therefore, Judge Smith’s dismissal of that claim should be affirmed.
There is no specific allegation or evidence of a prima facie case for tortious interference with prospective business relationships
The elements of a claim for tortious interference with prospective business
relationships are similar to those for a claim of tortious interference with business
relationships. To prevail on such a claim a plaintiff must prove (1) there was a
reasonable probability that the Plaintiff would have entered into a business
relationship with a third person; (2) the defendant intentionally interfered with the
relationship; (3) the defendant’s conduct was independently tortious or unlawful;
(4) the interference proximately caused the plaintiff’s injury; and (5) the plaintiff
suffered actual damage or loss. Plotkin v. Joekel, 304 S.W.3d 455, 487 (Tex.
App.—Houston [1st Dist.] 2009, no pet.).
Whisenhunt offers no evidence of any probability of entering into a business
relationship with a third person. There is no affidavit of a potential third person
business associate or even an affidavit from Whisenhunt himself that gives the
basic details of such a potential relationship.
As with his claim for tortious interference with business relationships,
Appellees’ and Cross-Appellants’ Brief on Remand – Page 16 Whisenhunt has offered no evidence of any tortious interference with prospective
business relationships by either Parks or Lippincott. There is no evidence of any
activity by Parks and there is no evidence that the emails sent by Lippincott were
independently tortious. There is no evidence in the record of a causal connection
between anything done by Parks or Lippincott and the loss of a prospective
business relationship by Whisenhunt. Nor is there any evidence of any damage to
Whisenhunt caused by anything.
Whisenhunt’s original petition is likewise lacking in any detail regarding
what specific potential business relationships, if any, were damaged or destroyed.
(C.R. 7). There is no mention of any specific person or entity with whom
Whisenhunt is alleging to have been forming a business relationship with. (C.R. 7)
Because Whisenhunt presented no specific pleading nor any evidence as to
any of the five elements of his claim for tortious interference with prospective
business relationships, he failed to meet his burden pursuant to Section 27.005(c)
of the TCPA. Therefore, Judge Smith’s dismissal of that claim should be affirmed.
There is no evidence of a prima facie case for conspiracy to interfere with Whisenhunt’s business relationship
In order to establish a conspiracy claim a plaintiff must prove (1) The
defendant was a member of a combination of two or more persons; (2) the object
Appellees’ and Cross-Appellants’ Brief on Remand – Page 17 of the combination was to accomplish (a) an unlawful purpose; or (b) a lawful
purpose by unlawful means; (3) The members had a meeting of the minds on the
object or course of action; (4) One of the members committed an unlawful, overt
act to further the object or course of action; and (5) the plaintiff suffered injury as a
proximate result of the wrongful act. Chon Tri v. J.T.T., 162 S.W.3d 552, 556
(Tex. 2005). Whisenhunt has failed to present any evidence on any one of the five
The only evidence Whisenhunt offers for the first element – that there are
two persons – is a reference to his original petition. Appellee’s Brief, p. 23. The
original petition itself, at paragraphs 26 through 29, is merely a recitation of the
elements of the claim for conspiracy. (C.R. 7-8) As the Supreme Court stated in
the Lipsky opinion, this is not enough to satisfy a plaintiff’s burden in responding
to a motion to dismiss under the TCPA. Also, and as stated above, there is no
evidence whatsoever regarding Parks. The only evidence as to Lippincott is the
email string, and none of the emails is sent to Parks or mentions Parks. Therefore,
there is no evidence for the first element of conspiracy.
Because there is no evidence of a “combination of two or more persons”
there is no evidence of any “object” of that combination. Likewise, and as stated
above, there is no evidence in either the Boyd affidavit or the Lippincott emails of
any unlawful purpose or unlawful means. There is no evidence of any “meeting of
Appellees’ and Cross-Appellants’ Brief on Remand – Page 18 the minds” between Parks and Lippincott. Finally, as with all of Lippincott’s
causes of action, there is no evidence of any injury or damage to him. As stated
above, the only evidence of any business relationship is between Whisenhunt and
FSS. Boyd’s affidavit establishes that relationship to be undamaged. (C.R. 46-48).
Because Whisenhunt presented no evidence as to any of the five elements of
his claim for conspiracy to interfere with business relationships, he failed to meet
his burden pursuant to Section 27.005(c) of the TCPA. Therefore, Judge Smith’s
dismissal of that claim should be affirmed.
There is Insufficient Detail and No Evidence of a Defamation Claim
To maintain a defamation cause of action against Lippincott and Parks,
Whisenhunt is required to prove, at a minimum: (1) the publication of a false
statement of fact to a third party, (2) that was defamatory concerning the plaintiff,
and (3) that Lippincott and Parks acted negligently. In re Lipsky at *11, citing
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998). To be
actionable, a statement must assert an objectively verifiable fact. Main v. Royall,
348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.).
Whisenhunt’s original petition does not adequately establish the facts of
when, where, and what was said, the defamatory nature of the statements, and how
they damaged him, as required by the Supreme Court in the Lipsky opinion. The
Appellees’ and Cross-Appellants’ Brief on Remand – Page 19 allegation contained in paragraph 12 of the petition does not describe specifically
what was said, to whom it was said, where it was said, how it was false and how it
damaged Whisenhunt. (C.R. 4-5) Similarly, the factual allegations in paragraph 14
of the petition fail to describe specifically what was communicated, to whom it
was communicated, when it was communicated, how it was false and how
Whisenhunt was damaged by it. (C.R. 5)
There is no evidence in Exhibits A and B to Whisenhunt’s response to the
motion to dismiss that anything communicated by Parks or Lippincott was false.
(C.R. 35-48 and Appendix 3) First, there is no evidence of anything
communicated by Parks. (C.R. 35-48 and Appendix 3) Second, there are no
statements of fact made by Lippincott in Exhibit A. (C.R. 35-45 and Appendix 3)
He is clearly just passing along statements and reports made by others for the
purpose of having others determine if further action should be taken. (C.R. 35-45
and Appendix 3) Third, there is no evidence in either Exhibit A or Exhibit B that
Lippincott falsely or inaccurately reported the allegations. (C.R. 35-48 and
Appendix 3) Fourth, there is no evidence in Exhibit B that anything stated in
Exhibit A is false. (C.R. 46-48 and Appendix 3) Because there is no evidence of
the falsity of anything stated in Exhibit A, Whisenhunt has failed to make a prima
facie case by clear and specific evidence of each of the essential elements of his
Appellees’ and Cross-Appellants’ Brief on Remand – Page 20 defamation claim. Therefore, it should have been dismissed along with the rest of
his claims.
Neither the factual allegations in Whisenhunt’s petition nor the evidence
attached to his response to the motion to dismiss amount to “clear and specific
evidence” as required by the TCPA. Neither the petition nor the evidence attached
to the response to the motion to dismiss “explicit” or “relate to a particular named
thing” as required by the Supreme Court in the Lipsky opinion.
Pleadings Should not be Considered as Evidence
As stated above, the Texas Supreme Court in its opinion on this case
referred this Court to its opinion in In re Lipsky with regard to the determination as
to whether Whisenhunt had met his burden of clear and specific evidence in
responding to the motion to dismiss under the TCPA. As explained above, the
Supreme Court discussed in Lipsky the level of detail required in a pleading subject
to dismissal under the TCPA. However, it did not explicitly hold that pleadings
can be considered as “evidence” in the determination of whether a plaintiff has met
its burden in responding to a motion to dismiss5.
5 As has been previously briefed by Lippincott and Parks in this court, there is longstanding Texas legal precedent for thenotion that Pleadings are not competent evidence, even if sworn or verified. Laidlaw Waste Systems v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995), citing Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex. 1971). The discussion in the previous sections assume that the pleadings may be considered in determining whether a plaintiff has met its burden in responding to a motion to dismiss under the TCPA, but that may not be the case.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 21 In fact, the Supreme Court’s discussion of the information that it considered
in determining whether the various motions to dismiss should be granted focused
on actual evidence, not pleadings. The court considered the affidavit of Range’s
senior vice president regarding damages. In re Lipsky at *10-11. The court
considered nine specific published statements relied upon by Range in support of
its defamation claim. In re Lipsky at *11-12. The court also discussed and
considered reports issued by the Environmental Protection Agency and Texas
Railroad Commission. In re Lipsky at *11.
There is no indication that the Supreme Court considered only Range’s
factual allegations in its pleading in determining whether it had met its burden in
responding to the motion to dismiss. Likewise, other courts that have recently
considered the same issue have focused on evidence as opposed to pleadings.
In Bilbrey v. Williams, No. 02-13-00332-CV, 2015 Tex. App. LEXIS 2359
(Tex. App.—Fort Worth 2015, no writ) Williams sued Bilbrey and others for
statements that were made about Williams concerning his conduct at a little league
baseball game. The defendants filed motions to dismiss pursuant to the TCPA
which the trial court denied. Williams responded attaching multiple affidavits and
included specific recitations of the oral and written statements about which he was
complaining. Bilbrey, at *7. Despite evidence that was much more detailed and
specific than that supplied by Whisenhunt in this lawsuit, the court of appeals held
Appellees’ and Cross-Appellants’ Brief on Remand – Page 22 that Williams had not met his burden of “clear and specific evidence” under the
TCPA and ordered that his claims be dismissed. Bilbrey, at *11.
In Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014, no writ)
Cruz sued Van Sickle and others for libel. As with the other cases discussed in the
foregoing paragraphs, the plaintiff, Cruz, complained about a specific and definite
statement that was published about him. The statement was published in an online
report and stated as follows: “Baltasar Cruz is another primary candidate from
2010 who attempted to knock out former State Representative Dale Tillery who is
now District Judge of the 134th Judicial District. Baltasar also has the distinction
of being thrown out three times, finally by the police, of an Elizabeth Edwards
book signing event in Dallas several years ago.” Cruz, 452 S.W.3d at 510.
Because Cruz was suing a media defendant he was required to prove the element
of actual malice. He pled actual malice, but the court held that his response
included “no evidence that the statement of which he complains was published
with actual malice[.]” In other words, the court in Cruz found that bare pleadings
alone were insufficient and held that dismissal under the TCPA is proper when
there is no evidence to support a required element of a plaintiff’s cause of action,
even when that element has been pleaded.
And in Serafine v. Blunt, No. 03-12-00726-CV, 2015 Tex. App. LEXIS
4517 (Tex. App.—Austin 2015, no writ) the Austin court of appeals found that a
Appellees’ and Cross-Appellants’ Brief on Remand – Page 23 plaintiff’s affidavit in response to a TCPA motion to dismiss contained insufficient
detail to meet the statute’s burden of proof. Serafine sued the Blunts over a
property dispute and the Blunts counterclaimed for tortious interference with their
contract with a drainage and foundation company. Serafine filed a motion to
dismiss the Blunts’ counterclaim under the TCPA which the trial court denied.
In support of their response to the motion to dismiss, the Blunts supplied the
affidavit of Alexander Blunt as well as his live testimony at the hearing. Mr. Blunt
testified to an agreement with Austin Drainage but he did not attach a copy of the
contract or supply any specific terms of the contract. The Austin Court of Appeals
held that “Mr. Blunt’s testimony was not clear and specific enough to support a
rational inference that a valid contract existed between the parties.” Serafine, at *6.
The court also held that the Blunts’ evidence was insufficient to establish a breach
of the contract. Id. Finally, the court of appeals held that the Blunts’ evidence was
insufficient to establish the chain of title and intent necessary to establish their
fraudulent-lien counterclaim. Serafine at *7. Presumably the Blunts adequately
pled the necessary elements of their causes of action, but because they did not
supply clear and specific evidence of them in response to the motion to dismiss, the
court of appeals reversed the trial court and dismissed their counterclaims.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 24 CONCLUSION
Whisenhunt has failed to meet his burden of clear and specific evidence of
each element of his claim. The trial court therefore erred when she failed to
dismiss Whisenhunt’s claims in their entirety and when she failed to impose a
sanction against him as required by the TCPA.
PRAYER
FOR THE FOREGOING REASONS, Appellees and Cross-Appellants pray
that this Court affirm the trial court’s dismissal of Whisenhunt’s tortious
interference and conspiracy claims but reverse her failure to dismiss his defamation
claim. Appellees and Cross-Appellants also respectfully request that this Court
reverse Judge Smith’s failure to impose the mandatory sanction against
Whisenhunt and remand this case to the trial court for the purpose of allowing the
court to consider evidence regarding the proper imposition of attorney’s fees, costs
and sanctions.
Appellees’ and Cross-Appellants’ Brief on Remand – Page 25 Respectfully submitted,
_/s/_Jon Smith___________ Jon M. Smith State Bar No. 18630750 3305 Northland Drive Suite 500 Austin, Texas 78731 Telephone: (512) 371-1006 Facsimile: (512) 476-6685 jon@jonmichaelsmith.com
ATTORNEY FOR CROSS-APPELLANTS
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), to the extent applicable, I certify that this brief contains 6017 words.
_/s/_Jon Smith___________ Jon Michael Smith
Appellees’ and Cross-Appellants’ Brief on Remand – Page 26 CERTIFICATE OF SERVICE
I, Jon Michael Smith, do hereby certify that a true and correct copy of the foregoing document was delivered to all attorneys of record as listed below via regular mail on July 2, 2015.
Alan E. Brown Boyd & Brown, P.C. 1215 Pruitt Place Tyler, Texas 75703
Farbod Farnia McCathern, L.L.P. Regency Plaza 3710 Rawlins, Ste. 1600 Dallas, Texas 75219
Appellees’ and Cross-Appellants’ Brief on Remand – Page 27