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. , Appellant s

V

. GO NZALO 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 mu st decide wh ether a partnership d ispute among surg eons over the buy out of a partner ship int erest from a partner who no longer practices medicine im plicates the Texa s Citizens Participation Act (TCPA) . A c cording to the partnership and its other partners, the case involves “ the provision of medical services by a health care professional [as] a mat ter of public concern ” implicating the exercise of the right of free spee ch and “ common inter e sts ” i mplicating the2

exercise of the right of association. 1 T h e partnership and other partners moved to dismiss the law s u it on these grounds under the TCPA. C onc l uding that the dispute is not related to the provision of medic al services and does not involve “ common interests ” as we have he ld that expression is used in the applicable v ersion of the TCPA , we a ffirm t

he trial court ’ s denial of the mo tion

.

B a ckground

D r. Gon zalo M . Vargas was a thoracic surgeon and partner in the cardiovas cular surgery group TSA

- Texas Surgical Associates , L.L.P (TSA)

. His partners were Dr s

. Richard M. Alexander, Luis G. Echeverri , and Robert T. Baldwin

. Vargas suffered a back injury th a t requ ired surgery , and a s a result , h e was unable to cont in ue practicin g medicine

. Consequently, Vargas notified TSA that he in tended to r etire

. The other partners pr e sented Vargas with an offer to buy out his partnership i nterest. Vargas re

jected the of

f e r b as ed on his assessment that it was for “ an amount both s ubstantially less than its fair market value and

. . . no t computed in accordance with the Partnership Agreement. ” Vargas alleges the attorney representing the other partner s threatened to “ squee z e [ Var ga s ] out ” of his partnership interest and said that Vargas would s uffer “ negative tax implicatio ns ” by rejecting the offer. Vargas also alleg e s that he was denied the opportunity to review partner ship books and records for nearly a year and the part n e rship illegally held his money.

1 See Lippincott v. Whisenh unt , 462 S.W.3d 507, 510 (Tex. 2015 ) (citing applicable version of T ex. C iv. P rac . & R em. C ode § 27.001(7 ) (defining “matter of public concern” to inclu de issues related to health or safety, community well

- being, a n d the provision of services in the market

place, amo ng other things) )

. The TC PA was amended effective September 1, 2019 ; th e versio n applicable her e predates the amendment. See Tex. Civ. Prac. & Rem. Code § § 27.001

- 27.011 (a mended by Acts 2019, 86th Leg., c h . 378 (H.B. 2730), § 1, eff. Sept. 1, 20 19 ).3

The partners also sen t Vargas a Redemp tion Agreement that was executed by Alexan der “ as a managing partner and . . . allegedly as power of attorney for

. . . Vargas. ” Vargas alleges the Redemption Agreement is “ ineffectiv e ” and contains

numerous fals e statements about his r etirement date a nd the partnersh i p ’ s actions after Vargas announced h is intentions to retire

. Vargas filed this lawsuit and brought claims for breach of contract, breach of fiduciary duty, conversion, co n s pirac y, money had a n d received ( or alternatively unj ust enrichment ) , and quant um meruit. Vargas sou ght actual and punitive damages, reformation of the Redemption A g reement , and a declaratory judgment addressing Vargas ’ s rights und er the P ar tnership Agree m e nt an d R edemption A greement . TSA and the other partne rs moved to dism iss th e lawsuit un der the
T CPA. The trial court denied the motion , and a ppellants timely filed this interlocutory app eal

. Discussion

I n two issues, appellants TSA, Alexander, Echeverri, a nd Ba ldwin challenge th e trial court ’ s denial of their TC PA motion to dismiss on the grounds that (1) the cl aims against the m are encompassed by the TCPA because the claims are based

on , related to, or in response to the exercise of the right s of free sp e e ch an d association ; (2) V argas did not establish by clear and convincing evidence a prima facie case for eac h essential elem ent of his claims, and (3) Vargas improperly removed certain claims from his petition , which appellants contend di d not moot their m otion to dismiss

. Havin g concluded that appellants did no t meet their burden
to establish the TCPA applies , we do not addres s their remaining issues

. The TCPA was enacted “to encourage and safeguard the constitutional rights of persons to petition, speak f reely , asso ciate freely, and otherwise participate in government to the maximum extent permitted by la w and, at the sa me time, protect4

the rights of a person to file meritorious lawsuits for demonstrable injury.” T ex. C iv. P rac . & R em. Code § 27.00 2. It d o es so by au thorizing a party to file a motion to di smiss a legal action that “is based on, relates to, or is in respon se to a party ’ s exercis e of the right of free speech, right to petition, or right of association.” Id

. § 27.003

. D ismis s a l under the TCPA is de termined on a claim

- by

- claim basis. Republic Tavern & Music Hall, LLC v. Laurenz o ’ s Midtown Mgmt ., LLC , No. 14

- 19

- 00731

- CV, 2020 WL 7626253, at *2 (Tex. App.

— Houston [14th Dist.] Dec. 22, 202 0, no pet. h.)

. T he claims in this ca se a r e based on t he same fac ts, so we analyze the claims toget her. See id

. T he movant bears the initial burd en to demonstrat e 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 ri g h t of free s peech, the right to petition, or the rig ht of association. T ex. C iv. P rac . & R em. Code § 27 .00 5(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 c a se fo r each essential element of the claim in quest ion

. Id

. § 27.00 5( c). If the nonmovant does so, the n the burden shi fts back to the movant to establish by a preponderance of the evidence each essential element of a valid defense. Id

. § 27.00 5( d) (former versi on)

. Wheth e r the partie s have met these respective burdens is a question of law that we review de novo. Republic T avern & Music Ha ll, LLC , 2020 WL 7626253, at *2 (citing Dall as Morning News, Inc. v. Hall , 579 S.W.3d 370, 377 (Tex. 2019) )

. I. Exercise of the R ight of Fr e e Sp eech Appellants a rgu e that they met their initial burden to establish b y a preponderanc e of the evidence tha t Vargas ’ s claims are based on , related to, or in response to the exercise of free speech because the claims purpor t e dly i nvolve5

comm unications re garding the provision of medi c al services

. See Lippincott v. Whisenhunt , 462 S.W.3d 507, 510 (Tex. 2015) ( “ W e have previously acknowledged that the provision of medical services by a health care professional constitutes a mat t e r of public conc ern. ” ). We do not agree that Varga s ’ s claims are based on communications re garding the provision of me di c al services because the communications at issue relate to V argas ’ s withdrawal from the partnership and occurred after V a rgas stop pe d p r acticin g me dicin e.
This case involves a private con tract dispute affecting only the fo rtunes of the pa rtne rs

. See Rep u blic 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 (Te x

. 2019) ( “ A priva te contract dispute affecting only the fortunes of the private parties involved is sim ply not a ‘matt e r of public concern’ under any t enable understanding of those words.” ) ). The alleged representations were made to a limited business aud i e nce concern ing a business dispute amo ng the partner s related to Vargas ’ s withdrawal from the partnersh ip . Because the statement s are not relevant to a wider a udience of potential patients , the statement s were not made “in connection with a matter of publ i c concern.” 2 See id

. The issues presented by this

2 Appellants rely on several c ases to support their argument that this case involves t he provision o f medical services as a mat ter of public concer n. Each of the case s appellants cite involves communications regarding the actual prov i s ion of medical s ervices, not a business dispute about buying out a pa rtner ’ s interes t after he stopped pract icing medicine

. See L ip p incott , 462 S

. W.3d at 508

- 09 ( involving alleged comments tha t nurse an est h et ist “ represented himself to be a doctor, endan g e red patients for h is own financial gain, and sexually harassed employees ” ) ; Price v. Buschemeyer , No. 12

- 17

- 00180

- CV, 2018 WL 156 98 56, at * 1, 3 ( Tex. App.

— Tyler Mar. 29, 2018, pet. denied) (me m. op.) (involving statement s that purportedly resulted in phy s i cian ’ s removal f

rom call group and call list rotation sch edule for provi din g emergency urological care ) ; Columbia Valley Healthca re 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. o p. ) ( involving s tatements by hospital purpo r ted ly meant to discredit n euros urgeon in the communit y and to the T e xas Me dical Board ) ; M em ’ l Hermann H

ealth Sys. v. Khalil , No. 01

- 16

- 00512

- CV, 201 7 WL 3389645, at *2 (Tex. App.

— Houston [1st Dist.] Aug. 8, 201 7 , pet. denied) (m em. op.) (invol ving statements about anesthesiologist ’ s com petence).6

ca se are sim

ply not a matter of publ ic con cern.
II. Exer cise of the Righ t of Association

W e next address whether appellants met their initial burden to establish by a preponderance o f the evide nce tha t Vargas ’s claims are base d on , r elated to, or in response to the exercise of the ri ght of associati on. The exercise of the right o f association is defined in the applic able version of the TCPA as “a communication b etween individuals wh o join togeth er to collectively express, promo te, pur sue, or defend common interests.” See T ex. C iv. P ra c . & R em. Code § 27.00 1(2) (former

v ersion).

We have defined the word “ common ” in the T CPA to mean “ ‘of or relating to a community at large: public

. ’ ” S e e 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 l a Llave , 590 S.W.3d 647, 653

– 54 (Tex. App.

— Hou ston [14th Dist.] 2019, pet. denied) , and Kawca k v. Antero R es. 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 T h e only communications at issue in Vargas ’ s claims are based on Vargas ’ s allega t i on s that

3 We pr eviously noted an argument could be made t hat ther e is a con flict in our case law between Bandin , 590 S.W. 3d 647 , and Reeves v. Harbor America Central, Inc. , No. 14

- 18

- 0 0 594

- CV, 20 20 WL 2026527 (Tex. App.

— Houston [14th Dist.] Apr. 25, 2020, pet. file d)

. Republic Tavern & Music Hall, LLC , 2020 WL 7 626253, at *5 n.17. B oth B andin and Reev es involved allegations that a defendant had joined with at least one other person to u n lawfully
c onvert or misappropriate the claimant ’ s property. Id

. In Bandin , we he ld that membership in an alleged conspiracy does not imp licate the right of association, but we held in Ree ves t hat “a competing [business] enterprise” is a “common interest” s ufficient to implicate the right of association, even though the enterprise alle gedly was founded on misappropriated property. I d

. W e no ted that even if a co nflict exists, Ban din , as the earlier pr ecedent, would control over later cases that do not distinguis h or pu rport to apply it, absent a contrary decision by a higher court or by this court sitting en banc. I d

.7

appellant s (1) breached t he P artnership A greement and breached their fid u ciary dut ies by “ mak ing false statements and denying [ Vargas] access to important records, ” (2 ) wrongfully assumed and exercised c ontrol over Vargas ’ s partn ership interest, ( 3) sought to deprive Vargas of his pa rtnership interest, and (4) attempted
to fraudulent ly induce Vargas “ to surrender his sta k e in the venture below its proper valu e

. ” Thes e communications th erefore are related to disagree ments about Var gas ’ s withdrawal f

rom the partne rship

. These communications concern a private tr ansaction bet ween private parties, not a matter of “ common interest , ” as we have he ld that expression is used in the applicable v e rsion of the TCPA. See id

. at *6. Accordingly, the communicati o n s do not constitute an exercise of the right of association protected by th e TCPA.
Conclu sion

Because appellants fail ed to meet their initial burden to prove by a
p reponderance of the evidence t hat Vargas ’ s claims are based on , related to , or in response to their exercise of their right s of free speech or association, the burden never shifted to Vargas to e stablish a pri ma facie case for each element of his claims

. W e conclude appellants failed to es t a blish that the TCPA applies to V a rgas ’ s claims against them. We affirm the trial court ’ s order den ying their motion to dismiss.

/s/ Frances Bourliot Justice

Panel consists of Justices Bourliot, Hassan, a n d Poissant.