## IN THE SUPREME COURT O F TEX AS

4 4 4 4 4 4 4 4 4 4 4 4 N O . 13-0926

4 4 4 4 4 4 4 4 4 4 4 4 

### M A T T H E W 

### L IP P IN C O T T A N D 

### C R E G 

### P A R K S 

### , P E T IT IO N E R S 

### ,

v . 

### W A R R E N 

### W H IS E N H U N T 

### , R E S P O N D E N T

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4

O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E S I X T H D I S T R I C T O F T E X A S

4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4 4

P ER CURIAM

A court may not judicially amend a statute by adding words that are not contained in the lang uag e of the statute. I nstead, it must apply the statute as written. This appea l involves the Texas C i t i z en s Participation Act, under which a defe ndant may move to dismiss a claim involving th e exercise of the rig ht to fre e speec h upon a showing that the communication was made in connec tion with a matter of public conce rn. Her e, the court o f ap p ea l s h eld that the Act only applies to communications that are public in form. B ut the plain lang uag e of the Act mer ely limit s its scope to communications involving a public subject—not communications in public form. Acc ording ly , we reve rse the court of appea ls’ judgme nt and rema nd to that court for further proce eding s consistent with this opi nion. I n May 2012, Creg P ar ks and Matthew L ippincott, administrators at First Surg ery Suites, L L C ( First Surg ery

), alleg edly

made dispar ag ing c omments about Warren Whisenhunt, a cer tified

r e g is te r e d n

u r s e a n e s th e tist contra cted to provide anesthe siology service s for First Surg e r y ’ s p a ti e n ts
.As proof of these disparag ing comments, Whis enhunt included copies of sever al emails sent by

L ippincott to four rec ipients summarizing repor ts L ippincott claimed to have rec eived and, in some instances, investigated about Whis enhunt. The repor ts alleg ed that Whis enhunt repr esente d himself to be a doc tor, enda

ng ere d patients for his own f inancial g ain, and se x ually hara ssed employ ees. Whis enhunt filed suit ag ainst L ippincott and Parks for defa mation, tortious interfe renc e with exis ting and prospec tive business rela tions, and conspirac y to interfe re in b u s iness rela tions. L ippincott and Parks moved to dismiss all the claims based on the Texas Citi zens Participation Act. The trial court g rante d L ippincott and Parks’s motion to dismiss in part and denied it in part, concluding that Whis enhunt met the minimum threshold to proce ed with the defa mation claim but failed to provide sufficie nt evidenc e to proce ed with the other claims. The court of appea ls reve rsed and rema nded, concluding that beca use the Act does not apply to private communicatio n s , it was inapplicable to this ca se. 416 S.W.3d 689, 699–700. This appea l require s us to construe the Ac t, and we r eview issues of statutory construction de novo. Molinet v. Kimbrell , 356 S.W

. 3 d 4 0 7 , 4 1 1 (T ex. 2011). Our objective in construing a statute is to g ive eff

ect to the L eg islature’s intent, which require s us to first look to the statute’s plain lang uag e. Leland v. Brandal , 257 S.W .3d 204, 206 (Tex. 2008). I f that languag e is unambig uous,

we interpre t the statute acc ording to its plain meaning

. Id. We presume the L eg islature included

eac h word in the statute for a purpose and that words not included wer e purposef ully omitted. In re M.N. , 262 S.W .3d 799, 802 (Tex. 2008). We are also mindful that the L eg islature has dire cted us to construe this Act “liber ally to effe ctuate its purpose and intent fully .” T E X . C I V . P R A C . & R E M . C O D E § 27.011. To asser t a motion to dismiss under the Act, the defe ndant must show “by a preponde ranc e 2of the e vidence that the leg al ac tion is based on, rela tes to, or is in response to the pa rty ’s exercise of

. . . the rig ht of fre e speec h.” Id. § 27.005(b). The statute broadly define s “the ex er ci s e o f the rig ht of fre e speec h” as “a communication made in connec tion with a matter of public conce rn.” Id. § 27.001(3). Under this definition, the ri g ht of fre e speec h has two components: (1) the exercise must be made in a communication and ( 2) the c ommunication must be made in conne ction with a matter of public c oncer

n. We addre ss eac h element in turn. First, the statute define s “communica tion ” as “t he making or submitt ing of a statement or document i n an y form or medium, including oral, visual, written, audiovisual, or elec tronic.” Id. § 27.001(1). The court of appea ls conclude d that beca use the purpose of the Act , as descr ibed in section 27.002, includes the phrase “other wise participa te i n go v er nment,” the Act only protec ts public communication. 416 S.W.3d at 697. W e disag ree . This statute define s “communication” to include any form or medium, including oral, visual, written, audiovisual, or elec tronic media—re g ardle ss of whether the communication takes a public

or private form. T E X . C I V . P R A C . & R E M . C O D E § 27.001(1). The plain lang uag e of the s t at u t e imposes no require ment that the form of the communication be public. Had the L eg islature intended to limit the Act to publicly communicated speec h, it could have easily added lang uag e to that eff ect. See In re M.N. , 262 S.W .3d at 802. I n the absenc e of such limit ing lang uag e, we must presume that the L eg islature broadly included both public and private communication. T E X . C I V . P R A C . & R E M . C O D E § 27.011. Next, we must deter

mine wheth er t h e co mmunications wer e made in connec tion with a matter of public conce rn. Her e, the em ai l s re l ated to whether Whis enhunt, as a nurse anesthe tist, proper ly provided medical service s to patients. The alleg ations include clai m s t h at W hisenhunt
3“fa iled to provide adequate cover ag e for pediatric case s,” administered a “diffe rent narc otic than was

order ed prior to pre- op or patient consent being completed,” falsified a scrub tech rec ord on multipl e

occa sions, and violated the company ’s sterile protocol policy

. We have pr eviously acknow ledg ed that the provision of m ed i ca l s er v ices by a health car e profe ssional constitutes a matter of public

conce rn. See Neely v. W

ilson , 418 S.W .3d 52, 70 n.12 & 26 (Tex. 2013) (dete rmining that the public had a rig ht to know about a doctor’s alleg ed inability to prac tice medicine due to a mental or phy sical condition); see also T E X . C I V . P R A C . & R E M . C O D E § 27.001(7) (def ining “matter of public conce rn” to include issues rela ted to health or safe ty , community well-be ing, and the provision of service s in the marke tplace, among other thin gs ). Thus, we conclude these communications wer e made in

connec tion with a matter of public c oncer n. L ippincott and Parks succe ssfully demonstrated the appli ca b i l i t y of the Act. The court of appea ls must now consider, among other matters, whether Whis enhunt met the prima fac ie burden the Act require s. See T E X . C I V . P R A C . & R E M . C O D E § 27.005(c)

. Be cause In re Lipsky , __ S.W .3d.

__, __ (Tex. 2015), square ly addre sses the standard a plaintiff must meet in order to establish a prima fac ie case , we reve rse the court of appea ls’ judgme nt without hear ing oral argument, see T E X . R. A P P . P. 59.1, and rema nd this cas e t o that court for further proce eding s consistent with this opinion and in light of our a naly sis in Lipsky

.

OP INION DELIVERED: April 24, 2015

4