Affirmed and Memorandum Opinion filed February 25, 2021.

In The

Fourteenth Court of Appeals

NO. 14-19-00135-CV

TSA-TEXAS SURGICAL ASSOCIATES, L.L.P., RICHARD M. 

ALEXANDER, M.D., LUIS G. ECHEVERRI, M.D., AND ROBERT T. 

BALDWIN, M.D., Appellants

V.

GONZALO M. VARGAS M.D., Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2018-68916

MEMORANDUM OPINION

Today we must decide whether a partnership dispute among surgeons over 

the buyout of a partnership interest from a partner who no longer practices

medicine implicates the Texas Citizens Participation Act (TCPA). According to the 

partnership and its other partners, the case involves “the provision of medical 

services by a health care professional [as] a matter of public concern” implicating 

the exercise of the right of free speech and “common interests” implicating the 
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exercise of the right of association.1 The partnership and other partners moved to 

dismiss the lawsuit on these grounds under the TCPA. Concluding that the dispute

is not related to the provision of medical services and does not involve “common 

interests” as we have held that expression is used in the applicable version of the 

TCPA, we affirm the trial court’s denial of the motion.

Background

Dr. Gonzalo M. Vargas was a thoracic surgeon and partner in the 

cardiovascular surgery group TSA-Texas Surgical Associates, L.L.P (TSA). His 

partners were Drs. Richard M. Alexander, Luis G. Echeverri, and Robert T. 

Baldwin. Vargas suffered a back injury that required surgery, and as a result, he 

was unable to continue practicing medicine. Consequently, Vargas notified TSA

that he intended to retire.

The other partners presented Vargas with an offer to buy out his partnership 

interest. Vargas rejected the offer based on his assessment that it was for “an 

amount both substantially less than its fair market value and . . . not computed in 

accordance with the Partnership Agreement.” Vargas alleges the attorney 

representing the other partners threatened to “squeeze [Vargas] out” of his 

partnership interest and said that Vargas would suffer “negative tax implications”

by rejecting the offer. Vargas also alleges that he was denied the opportunity to 

review partnership books and records for nearly a year and the partnership illegally 

held his money.

1

See Lippincott v. Whisenhunt, 462 S.W.3d 507, 510 (Tex. 2015) (citing applicable 

version of Tex. Civ. Prac. & Rem. Code § 27.001(7) (defining “matter of public concern” to 

include issues related to health or safety, community well-being, and the provision of services in 

the marketplace, among other things)). The TCPA was amended effective September 1, 2019; 

the version applicable here predates the amendment. See Tex. Civ. Prac. & Rem. Code

§§ 27.001-27.011 (amended by Acts 2019, 86th Leg., ch. 378 (H.B. 2730), § 1, eff. Sept. 1, 

2019).
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The partners also sent Vargas a Redemption Agreement that was executed

by Alexander “as a managing partner and . . . allegedly as power of attorney for . . . 

Vargas.” Vargas alleges the Redemption Agreement is “ineffective” and contains 

numerous false statements about his retirement date and the partnership’s actions 

after Vargas announced his intentions to retire.

Vargas filed this lawsuit and brought claims for breach of contract, breach of 

fiduciary duty, conversion, conspiracy, money had and received (or alternatively

unjust enrichment), and quantum meruit. Vargas sought actual and punitive 

damages, reformation of the Redemption Agreement, and a declaratory judgment 

addressing Vargas’s rights under the Partnership Agreement and Redemption 

Agreement. TSA and the other partners moved to dismiss the lawsuit under the 

TCPA. The trial court denied the motion, and appellants timely filed this 

interlocutory appeal.

Discussion

In two issues, appellants TSA, Alexander, Echeverri, and Baldwin challenge 

the trial court’s denial of their TCPA motion to dismiss on the grounds that (1) the 

claims against them are encompassed by the TCPA because the claims are based 

on, related to, or in response to the exercise of the rights of free speech and

association; (2) Vargas did not establish by clear and convincing evidence a prima 

facie case for each essential element of his claims, and (3) Vargas improperly 

removed certain claims from his petition, which appellants contend did not moot 

their motion to dismiss. Having concluded that appellants did not meet their burden 

to establish the TCPA applies, we do not address their remaining issues.

The TCPA was enacted “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 
4

the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. 

Civ. Prac. & Rem. Code § 27.002. It does so by authorizing a party to file a motion

to dismiss a legal action that “is based on, relates to, or is in response to a party’s 

exercise of the right of free speech, right to petition, or right of association.” Id. 

§ 27.003. Dismissal under the TCPA is determined on a claim-by-claim basis.

Republic Tavern & Music Hall, LLC v. Laurenzo’s Midtown Mgmt., LLC, No. 14-

19-00731-CV, 2020 WL 7626253, at *2 (Tex. App.—Houston [14th Dist.] Dec. 

22, 2020, no pet. h.). The claims in this case are based on the same facts, so we 

analyze the claims together. See id.

The movant bears the initial burden to demonstrate by a preponderance of 

the evidence that the legal action is based on, relates to, or is in response to the 

movant’s exercise of the right of free speech, the right to petition, or the right of 

association. Tex. Civ. Prac. & Rem. Code § 27.005(b) (former version). If the 

movant satisfies this initial burden, then the burden shifts to the nonmovant to 

establish by clear and specific evidence a prima facie case for each essential 

element of the claim in question. Id. § 27.005(c). If the nonmovant does so, then 

the burden shifts back to the movant to establish by a preponderance of the 

evidence each essential element of a valid defense. Id. § 27.005(d) (former 

version). Whether the parties have met these respective burdens is a question of 

law that we review de novo. Republic Tavern & Music Hall, LLC, 2020 WL 

7626253, at *2 (citing Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 

(Tex. 2019)).

I. Exercise of the Right of Free Speech

Appellants argue that they met their initial burden to establish by a 

preponderance of the evidence that Vargas’s claims are based on, related to, or in

response to the exercise of free speech because the claims purportedly involve
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communications regarding the provision of medical services. See Lippincott v. 

Whisenhunt, 462 S.W.3d 507, 510 (Tex. 2015) (“We have previously 

acknowledged that the provision of medical services by a health care professional 

constitutes a matter of public concern.”). We do not agree that Vargas’s claims are 

based on communications regarding the provision of medical services because the

communications at issue relate to Vargas’s withdrawal from the partnership and 

occurred after Vargas stopped practicing medicine.

This case involves a private contract dispute affecting only the fortunes of 

the partners. See Republic Tavern & Music Hall, LLC, 2020 WL 7626253, at *3

(quoting Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 137

(Tex. 2019) (“A private contract dispute affecting only the fortunes of the private 

parties involved is simply not a ‘matter of public concern’ under any tenable 

understanding of those words.”)). The alleged representations were made to a 

limited business audience concerning a business dispute among the partners related 

to Vargas’s withdrawal from the partnership. Because the statements are not 

relevant to a wider audience of potential patients, the statements were not made “in 

connection with a matter of public concern.”2 See id. The issues presented by this 

2 Appellants rely on several cases to support their argument that this case involves the 

provision of medical services as a matter of public concern. Each of the cases appellants cite

involves communications regarding the actual provision of medical services, not a business 

dispute about buying out a partner’s interest after he stopped practicing medicine. See Lippincott, 

462 S.W.3d at 508-09 (involving alleged comments that nurse anesthetist “represented himself to 

be a doctor, endangered patients for his own financial gain, and sexually harassed employees”);

Price v. Buschemeyer, No. 12-17-00180-CV, 2018 WL 1569856, at *1, 3 (Tex. App.—Tyler 

Mar. 29, 2018, pet. denied) (mem. op.) (involving statements that purportedly resulted in

physician’s removal from call group and call list rotation schedule for providing emergency

urological care); Columbia Valley Healthcare Sys., L.P. v. Pisharodi, No. 13-16-00613-CV, 

2017 WL 4416334, at *1 (Tex. App.—Corpus Christi Oct. 5, 2017, no pet.) (mem. op.) 

(involving statements by hospital purportedly meant to discredit neurosurgeon in the community 

and to the Texas Medical Board); Mem’l Hermann Health Sys. v. Khalil, No. 01-16-00512-CV, 

2017 WL 3389645, at *2 (Tex. App.—Houston [1st Dist.] Aug. 8, 2017, pet. denied) (mem. op.) 

(involving statements about anesthesiologist’s competence).
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case are simply not a matter of public concern. 

II. Exercise of the Right of Association

We next address whether appellants met their initial burden to establish by a 

preponderance of the evidence that Vargas’s claims are based on, related to, or in

response to the exercise of the right of association. The exercise of the right of 

association is defined in the applicable version of the TCPA as “a communication 

between individuals who join together to collectively express, promote, pursue, or 

defend common interests.” See Tex. Civ. Prac. & Rem. Code § 27.001(2) (former 

version).

We have defined the word “common” in the TCPA to mean “‘of or relating 

to a community at large: public.’” See Republic Tavern & Music Hall, LLC, 2020

WL 7626253, at *5 (citing Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 476 (Tex. 

App.—Houston [1st Dist.] 2020, pet. dism’d w.o.m.) (op. on reh’g en banc), 

Bandin v. Free & Sovereign State of Veracruz de Ignacio de la Llave, 590 S.W.3d 

647, 653–54 (Tex. App.—Houston [14th Dist.] 2019, pet. denied), and Kawcak v. 

Antero Res. Corp., 582 S.W.3d 566, 576 (Tex. App.—Fort Worth 2019, pet. 

denied) (quoting Webster’s Third New Int’l Dictionary 458 (2002)).

3 The only 

communications at issue in Vargas’s claims are based on Vargas’s allegations that 

3 We previously noted an argument could be made that there is a conflict in our case law 

between Bandin, 590 S.W.3d 647, and Reeves v. Harbor America Central, Inc., No. 14-18-

00594-CV, 2020 WL 2026527 (Tex. App.—Houston [14th Dist.] Apr. 25, 2020, pet. filed). 

Republic Tavern & Music Hall, LLC, 2020 WL 7626253, at *5 n.17. Both Bandin and Reeves

involved allegations that a defendant had joined with at least one other person to unlawfully 

convert or misappropriate the claimant’s property. Id. In Bandin, we held that membership in an 

alleged conspiracy does not implicate the right of association, but we held in Reeves that “a 

competing [business] enterprise” is a “common interest” sufficient to implicate the right of 

association, even though the enterprise allegedly was founded on misappropriated property. Id. 

We noted that even if a conflict exists, Bandin, as the earlier precedent, would control over later 

cases that do not distinguish or purport to apply it, absent a contrary decision by a higher court or 

by this court sitting en banc. Id.
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appellants (1) breached the Partnership Agreement and breached their fiduciary 

duties by “making false statements and denying [Vargas] access to important 

records,” (2) wrongfully assumed and exercised control over Vargas’s partnership 

interest, (3) sought to deprive Vargas of his partnership interest, and (4) attempted 

to fraudulently induce Vargas “to surrender his stake in the venture below its 

proper value.” These communications therefore are related to disagreements about 

Vargas’s withdrawal from the partnership. These communications concern a 

private transaction between private parties, not a matter of “common interest,” as 

we have held that expression is used in the applicable version of the TCPA. See id. 

at *6. Accordingly, the communications do not constitute an exercise of the right 

of association protected by the TCPA.

Conclusion

Because appellants failed to meet their initial burden to prove by a 

preponderance of the evidence that Vargas’s claims are based on, related to, or in 

response to their exercise of their rights of free speech or association, the burden 

never shifted to Vargas to establish a prima facie case for each element of his

claims. We conclude appellants failed to establish that the TCPA applies to 

Vargas’s claims against them. We affirm the trial court’s order denying their 

motion to dismiss.

/s/ Frances Bourliot

Justice

Panel consists of Justices Bourliot, Hassan, and Poissant.