### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00229
- CV

San Angelo Community Medical Center, LLC; Regional Employee Assistance Progra m, Inc. d/b/a Community Medical Associates; and Michael S. Blanc, M.D., Appellant s

v. Miltiadis Leon, M
. D.; and Cardiology Associates of West Texas, P.A., Appellee s

FROM THE 51ST DISTRICT COURT OF TOM GREEN COUNTY NO. A160176C, THE HONORABLE CHARLES CH APMAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
San Angelo Community Medical Center, LLC ( S ACMC) ; Regional Employee
Assistance Program, Inc. d/b/a Community Medical Associates (CMA) ; and Michael S. Blanc,
M.D. appeal from the trial court ’ s order that parti ally deni ed thei r motion to di smiss under the
Texas Cit izens Participat i on Act (T CPA). Se e Tex. Civ. P rac. & Rem. Code §§ 27.001

– .011

. 1 For the following reasons, we affirm in part and reverse and reman d in part.

B ackg r ound
Miltia dis Leon, M .D. , practice s interventional cardiolo gy , and Cardiolo gy Associates of West Texa s , P. A. (C AW T ) is D r. Leon ’ s pro fessional assoc iation

. Dr. Leon has

1 References to the TCPA in this opinion are to its provis ions as th ey ex isted prior to th e 2019 a mendment s
. See Ac t of M ay 17 , 2019 , 86 th Leg., R.S ., ch. 378 , § § 11, 12 , 2019 Tex. Ge n. Laws 684 , 687 ( st ating that amendments to TCPA appl y “ only to action filed on or af te r ” Sep t ember 1, 2019).2

medical staff pr ivileges at SACMC , an acute ca re h ospital

. Dr. Blanc is e mployed by CMA and provides interventional ca rdiol ogy s ervices a t SACMC

.

Dr. Leon and C A WT sued appellants in May 2016 , a s se rt in g cau ses of action
based on theories of restraint of trade, tortious inter fere nce with exis ting contracts , tor tious
interfer ence with pros pective relat ions , fraud, prom issory estoppel, unjust enrichment , a nd
p i erc in g the corp orate veil

. They sought to rec over damages and declaratory judgment based on appella nts ’ “ unlawfu l, tortious, and an t icompetit ive con duct ” which sought “ to sever ely
di minish, restrain, or com pletely eliminate Dr. Leon ’ s independent medical practi ce from the
p ool of competing in ter venti onal card iologist s in the San Ange lo, Tom Green County, Texas
market

. ” Dr. L eon ’ s and CAWT ’ s factual allegations concerned c ross
- cov erage practice s at
SACMC , 2 physicians who were hired by Dr. Leon and assist ed co verin g his patien t s at SACMC

w hen he was un a vail able , and the peer
- review process at SACMC and h ow it had been applied to
the physicia ns who m Dr

. Leon had hired

.

As to their req uest for de claratory relief , Dr. Leon and CAWT sought a
declaration concerning S ection 5(a) o f SACMC’s r ules and r egul ations that, un der that provision, appell ants “ have a duty to provide c overage to Plaintiffs ’ practice if other non
- CMA physi cians
associa ted with Plaintiffs ’ practice are excluded by [a ppellants] under the medical pee r review or

c redentia ling process

. ” D r. Leon and CAWT attac hed to their pe tition: SACM C medical sta ff

r ules an d r egulations and b ylaws , emp loyment agreements betw een CAWT an d physicians , letters , and emails

.

2 Dr. Leon ’ s and CAWT ’ s pleadin gs allege “ [c ] ross
- cove rage i s th e standard p r actice whe reby p hysicians agree to a ccept weeken d and af ter

- h our patient cal l s for each o ther on a r otating basis and to cove r each other ’ s patients when on vacation or othe rwise unavailable. ”3 App e llants filed an answ er in June 2016

. Dr. Leon a n d CAWT f il ed a first
amended petit io n in Febru ary 2017 and a supplemental petition on November 16, 2018. In the ir first amended petition, Dr. Leon an d CAWT alle ge d the same facts and asserted the same c auses of action as in thei r origin al p e ti tion , but they also alleged additional f acts , in cluding spe cific
details about th eir claims that : (i ) appellants had tort i ously interfer ed with cont racts between
Dr. L eon and the physicians whom Dr. Leon had hired , (ii) appellants had refus e d to provide
Dr. Leon cross

- coverage t o eliminat e or se verely rest rain his inter ventional cardiolo gy services , and (iii) app ellants had tort i ously interfered with pros pective r elatio nships “ w ith an associate
intervention al car diologist as well as additiona l patients

. ” 3 F or example, as to their

to rt i ous
- inter f

erence claim , Dr. L eon and CAWT all eged th at “ Dr. Blanc continued to harass and disparage ” one of the physic ian s wh om Dr. Leon h ad hired “ until he finally announced his resignation from Dr. Leon ’ s prac tice

. ” Dr. L eon and CAWT also added specific s about t h e refer ral process from the SACM C eme rgency room and the requireme nt of “ equal distribution of patients from the emergency room ” and alleged that appellants ’ interfe r e n ce of existing and prospective c o ntract s had c aused them “ actual damages or loss in the form of lost pro fits (which may in clude [appellants] ’ profits resulting from their tort ious interfe rence), m ental angu ish,
and /o r i njury to reputation. ”

In the supplemental petition, Dr. Leon and CA W T asserted t he causes of action of
defa mat ion per se a n d busin e ss d isparagement and alleged additional facts concerning other
claim s assert ed in the first amended petition, i ncludi ng their tort i ous
- interference claims

. The y

3 For ex ample , Dr. Leon and CA W T alleged in the first amended p etition th at appell a nts

“ intention al ly inter fere d with Plaint iffs ’ b u siness r elationsh ips with a new ass ociate physician or newly acquired patients by subjecting associate physicians to an onerous a nd arbit rary pe er review process and failing to provide P l aintiffs a dequate coverage of thei r intervention al c ardiolo gy practice. ”4

alleged that appellants ’ conduc t was inte r f ering with past , current , and fu ture pa tien ts and that
Dr. Blanc published a sta te ment that Dr. Leon “ brought i n int er ventional cardio logist s [who]

wer e not a com petent interventional cardiologist [sic] to treat patients coming to the [SACMC]

e mergency r oo m ” and conducted a “ whisp er ca mpa ign saying [ Dr. L eon ’ s] a ssoc iated physicians

s hould not be allowed to treat i nterv en tional cardiolog y patients at [SA CMC]. ” Dr. Le on and
CAWT alleged additional facts of “ abuse ” co ncer ning the process of referr in g pa tients from the
SACMC eme r gency room
.

On Ja n u ary 15, 2019, a ppellants filed their motion to dismiss under the T CPA , seeking dismissal of Dr. Le o n ’ s a nd CAWT ’ s d e famat ion and business

- d ispa ragement claims in
the supp l emental petition and the ir claims in t he first amend ed petition “ that rely upon the new factu a l allegat ions ” in the supp lemental petition

. Appellant s supported their motion with
attachme nt s, i ncludin g Dr. Blanc ’ s affidavit , copies of the SACMC medical staff bylaws and
rules an d regu lat i on s , and corresponden ce, including a No vember 11, 20 11, lette r fr om Dr. Bla nc in forming Dr. Leon that CMA cardiologists would no longe r be able t o provi de cover age for the CAWT practice because of “ significant and growing conce rns regar d in g [a CAWT physician] ’ s
prac tice patterns and pro fessional inte gr ity

. ” 4
Dr. L eon and CAWT filed a response to the motion to di smiss

. They argued th at appellan ts ’ mot ion was not fi led timely e x cept as to Dr. Leon ’ s and CAWT ’ s defamation and
b u siness

- dis p a r a gement c laims

. See Te x. Civ. Prac. & Rem. Code § 27.003(b) (requ iring motio n to dismiss to be filed no t later tha n 60 th day after date of s ervice of “ legal act ion ” )

. Dr. Leon and
CAWT further argue d that their other caus es of action should not be dis mi ssed because they

4 A p pellant s submit ted to the trial court for in ca mera rev iew letters and memorandum from the medical peer review commi tte e concer ning CAWT physicians

. The d ocuments submitt ed for in camera review are not in t he app el late re cord.5

were no t based on the alleged defamatory statemen ts in the s upplemental petition

. As to their
defamation and business

- disparagemen t c laims , the y argue d that the y had set forth a prim a facie

case and supported th eir response w ith attach me nts, inc lu di ng Dr. Leon ’ s a ffid avit

.

Appellants filed a reply bri ef in suppo rt of their motion to dismiss, ar guing th at
the trial court “ should d ismiss P lain tif fs ’ new claims for defamation and business dispara geme nt,
and a ny of Pl aintiff s ’ ot her claims that rely up on t he new factual al legations ” in the suppl emental pet ition

. As to the timeliness of their motion to dismiss, they argu ed that the “ ne w fa ctu al allegations ” in the supplemental petition “ subs tant ially ref or mulate claims assert ed ea rli er in the
Amended Pet ition ” and that the “ Supplemental Petition reset [appe llants] ’ de adline to move to dismiss any of Plaintiffs’ older claims that are bas ed on n ew factual allegations in the Supplemental Petiti on
. ” 5

Foll owing a hearing , the t rial court granted appell ants ’ motion to dismiss in part wi tho ut sta ting the basis for its rulin g
. In its o rd er, t he trial co urt dism issed Dr. Leon ’ s and
CAW T ’ s c la ims for de f amation per se, fra ud, and piercing the corporate veil ; ordered that appell a nts we re en titled to reco ver attorney ’ s fees ; and imposed a sanct ion o f $1,000. See Te x
. Civ. Prac. & Re m. Code § 27.00 9 (r equir ing award of att orney ’ s fees and sa nct io ns )

. T h is
interlocuto ry appea l f

ollowed. See id. § § 27.008 , 51. 01 4(a)(12)

.

Analysis
In their sole issue , appellants contend that the trial court erred when it did not
d ismiss a ll of D r. L eon ’ s and CAWT ’ s claims under the TCPA. A ppellant s ar gue that Dr.

5 Appellants filed objecti ons to th e evidence that Dr. Leon and CAWT submitted in response to the motion to dismiss. In a separ ate o rder, the trial co urt granted appellants ’ objectio ns in part , str

i king portions of Dr. Leon ’ s affidavit and at ta chmen ts to his affid avit and the resp onse
. We do not con sider the struck evidence in our analysis

.6

Leon ’ s and CAW T ’ s claims are subject to the TCPA , tha t Dr. Leon and CAWT “ did not carr y
t hei r burd en to e stab lish a prima facie case for each ess ential element of each cl aim by clear

an d sp eci fic evidence , ” a nd that appellants “ conclusively esta blis hed af firmative def

enses to
th o se claims. ”

S tandard of Review and Ap plicable Law

Relevan t to t his ap peal, the TC PA authorizes a pa rty to file a motion to d ismiss a

“ legal a ction ” that “ is ba sed on , r elat es to, or is in response to a par ty ’ s exerc ise o f the right of free speech. ” See Tex. Civ. Prac. & Rem. Code § 27.003 (a ). “ ‘ Exerc is e of the right of fr ee speech ’ means a communicati on made in conne ction with a matter of p ub lic concern, ” and a

“ m atter of pub l ic con cern ” include s “ an issue related to .

. . health or sa fety

. ” Id. § 27.001(3), (7)(A )

. “ ‘ Communic ation ’ inc ludes t he mak in g or sub mitting of a statement or document in any form or medium, including oral, visu al, wr itten, aud iovisual , or e lectronic. ” Id. § 27.001( 1 )

. The

term “ legal action ” under the TCPA includes a “ cause of actio n ” or “ any other judicial ple ading

o r fili ng that re ques ts le gal or equitabl e relief. ” Id. § 27.001(6).

A motio n to di smiss brought under the TC PA “ mus t be filed not l ater t han the
60 th day after the date of se rvice of the le ga l action ” un less the tri al court extends th e time to file
th e moti on “ on a s h owing of go od cause. ” Id

. § 27.003(b). A trial court d oes not err when it
d enies a n untim ely motion t o dismiss

. Paul sen v. Yarrell , 455 S.W.3d 192, 19 8 (Tex. A pp.

— Houston [1 s t Dist.] 2014, no pet.) , s uperseded by statute on other ground s as s ta ted in
S chlumberger Ltd. v . Rutherford , 472 S.W.3d 881, 887

– 88 (T ex. App.

— Houston [1 st Dist. ]
201 5 , no pet.) ; se e Ma ncilla v. Ta x F ree Shopping , Ltd

. , No. 05

- 18

- 00136

- CV, 2 018 Te x. App.
L EXIS 9371, at * 5 (Tex. App

. — Dallas No v. 16, 2018 , no pe t.) ( mem. op.) ( “ If the motion is n ot7

filed within the statutory deadl ine, the m ovant for feits the ea rly

- di smissal protections of the [TCPA ]. ” ) ; Hayes v. Cavin , No. 03

- 17

- 0050 1

- CV, 2018 Tex. App. LEXIS 8343, at * 9 (Tex. App.

— Au stin Oct. 12, 2018, pet. denied) (mem. op.) (affi rmi ng o r der denying TCPA motion

to dismiss because trial court “ could have reasonably c oncluded that Hayes ’ s motion

was untim ely ” )

.

In addition to the requirement that the mov ant f ile the motion to dismiss within the statutory dead line , t he movant bears t he in itial burden t o show by a pr eponderance of the
evidence th at the “ legal action ” i s subject to the TCP A

— re levant here, that it “ is based on ,

r elat e s to, or is in response to a par ty ’ s e xerc ise of the right of free speech. ” See Tex. Civ. Pr ac. & Rem. C od e § 27.005(b) ; see Hersh v. Tatum , 526 S.W.3d 462, 466

– 68 (Tex. 2017) (describing

an d applying statutory procedure under TCPA); Exxon Mobil Pipeline C o. v. Coleman , 512 S.W.3d 895, 898

– 99 (Tex. 20 17) (same)

. C ourts ge nerally deter mine the applicab ility o f the
TCPA “ based on a holistic review of the pleadings. ” Adams v. Starside Custom Bu il ders , LLC , 547 S.W .3d 890, 89 7 (Te x. 2018)

. “ W h en it is clear from the plaintiff ’ s pleadings that the action
is covered by the [TCPA], th e defendant need show no more. ” Hersh , 526 S.W.3d at 46 7

.

If a movant meets the in i tial burden to show that the TCPA applies, the bur den
shifts to the non mo vant to establish “ b y clear and spe cific evid e nce a prima f acie c ase for each
essenti al element of th e claim in question. ” Te x. Civ. Prac. & Rem. Code § 27. 005(c). A prima
facie case “ refers to evidence suf f ici ent as a m atter of la w to establish a g iven fact if it is not

re b utted or co ntradicted. ” In re Lipsky , 460 S.W.3d 579, 590 (Tex . 2015 ) (orig. proceeding)

. “ It
is the ‘ m in imum quant um of evidence n e ce ssary to support a rat ional inference that the
alle gati on of fact is true. ’ ” Id. (quoting In re E.I. Dupont de Nemours & Co. , 136 S.W.3d 218,
2 23 (Tex. 2004) (orig. proceeding ) )

. A court may not dismiss a legal action i f the non movant8

es tabli sh es “ a pr ima f

acie case for e a ch essential element of the claim in question ” unless the

movant establish es “ by a preponderance of the evidence each es sential el ement of a va li d defense

t o the non mova nt ’ s claim. ” Tex. Civ. Prac. & Rem. Co de § 27.005 (c), ( d)

.

In determining whet her t he nonmovant has met its burd en to es t ablish a prima
facie case , the court vi ews the evid ence in the l ight most favo rable to the nonmovant. Wa r ner Bro s . E ntm ’ t , Inc. v . Jones , 538 S.W.3d 781, 8 01 (Tex. App.

— A u stin 201 7 ) , aff ’ d , 611 S.W.3 d 1 (Tex. 2020)

. The evidence that c ourts consider are “ the pleadings and s upporting o r opposing affidavits stating the fa cts on which the liability or defense is bas ed. ” See Tex

. Civ. Prac.
& Rem. Code § 27.00 6 (a ). Furt her, b eca use th e TCPA does not define “ clear and spec ific
evid ence, ” we apply the ordina ry mea nings of “ clear ” and “ spec ific

. ” See In re Lipsky , 460 S.W.3d at 590 (observin g that TCPA does not define “ clear and s pecific evidenc e ” an d
app l ying ordinary mea ning s of words “ clear ” and “ specific ” )

.

We review a trial court ’ s ruli ng on a TCPA mot ion to dismiss de no v o
. See
Adams , 547 S.W.3d at 897 (de cidin g w hether TCPA appli ed under de n ovo st andard of review) ; Neurodia gn ostic Consultan ts, L LC v. Nallia , No. 03

- 1 8

- 00609

- CV, 2019 Tex. App. LEXIS 8156 , at * 7 (Tex. App.

— A ustin Sep t. 6, 2019 , no pet

. ) (mem. op. ) (s tatin g that standard o f revie w is d e novo in appe al from t r ia l court ruling o n TCPA m otion to dism i ss ) ; Long Canyon Phase II & II I
Hom eowners Ass ’ n v. Cash i on , 517 S.W.3d 212, 217 (Tex. App.

— Austin 2017, no pet.) ( “ We

rev iew de novo whether each p art y c arried i ts ass igned burden [under the TCPA ]

. ” )

.

With these princi ple s in mind, w e turn to our anal ysis of appellants ’ issue , beg innin g with the timel iness of thei r motion to dis mis s
.9

Tim eliness of Appellant s ’ Motion to Dismiss

Dr. Leo n an d CAW T filed t heir ori gina l petition in May 2016, the ir first amended petit ion in Fe br uary 2017, and the ir supplemental petition November 16, 2 018

. A ppellants ’
TC PA motion to dismiss wa s fil ed Ja nuary 15, 20 19. Be c ause the moti on to dism iss wa s filed within 60 days of the sup plemental petition , it was timely as to Dr. Leon ’ s an d CAW T ’ s business

- disparagement claim that was asserted f or t h e fir st time in the supp lem ental p etition

. 6
Se e Tex. C i v . Pr ac. & Rem. Code § § 27. 001(6) (def ining “ legal act ion ” to include “ cause of
actio n ” ) , . 003(b)

.

In their response to t he motion to di smiss , Dr. Leon and CAWT did not challenge
the timeliness of appe llants ’ mot ion as to t heir bu siness

- dispar agement claim but argued that the
motion was un timely as to the ir caus es of action in the ir firs t amend ed petit ion

. Face d with th is argument , a ppellant s did not seek leave from the trial cour t to extend the time to fil e a motio n to
dismiss

. See id. § 27.003( b) ( authorizing tria l cour t to extend time to file motion to dismi s s “ on a sh owing of good c au se ” ). Appellants ’ position was th at the ir motion to dismiss was ti mely as to
Dr. Leon ’ s and CAW T ’ s p revious c la ims “ t o the extent ” that they were “ based on the Supp lemental Petit ion ’ s new factual allegations

. ”

An “ amended p le ading that does n ot add ne w parties or claims d oes n ot rest art the
deadline fo r filing [a] motion to di smiss u nd er t h e TCPA

. ” Pau lsen , 45 5 S.W.3d at 197 (citing In re Estate of C h ec k , 438 S.W.3d 829, 83 7 (Tex. App.

— San Antonio 2014, no pet.))

. Further,

“ t he filing of an am ended pl e a ding that does not alter the essential nature of an action does not

6 Appellants ’ motion to dismis s also wa s t im ely as to Dr. Le on and CAWT ’ s claim asserting defa mation per se
. Th at c laim , however, is not at issue in th is i nterlocutory appeal because the tria l court g ranted appell ants ’ motion as to th at c laim

. See Tex. Civ. Prac. & Rem. Code § 51. 01 4(a)(12) ( autho rizing interlocuto ry appeal from order den ying motion to dismiss brought under TCPA).10

rest art the de ad line. ” Ma ncilla , 2018 Te x. App. LEXIS 9371, at * 6 ; see id. at * 9 ( hol ding that

“ the crux ” of claim asserted in original petition was improper a cquisition and disc losure of proprietary in form ation and that add itional allegat ions in amended petition di d not “ alt er t he
essential nature of this action ” ) ; see also In re Lipsky , 460 S. W.3d at 590

– 91 ( co mpa ring TCPA evidentiary requirements w ith ge neral pleading requirements and n oting that pleadings need on ly provide “ fair notice ” of claim and relief sought ) ; P aulsen , 455 S.W.3d at 197 ( ex plaining that

r esetting 60

- d ay deadline for fili ng TCPA motion to dis miss e very time party file s amended petiti on , “ regardl ess of whether new cl aims or parties have been intr od uced, would frustrate the

ex press ed legis la tive purpose of the TCPA, ‘ which is t o all ow a defendant early in the lawsuit to
dism iss cl aims that s eek to in hibit a defendant ’ s constitutional ri ghts to petition, speak freely,

a ssociate freely , and part ici pa te in governmen t a s permitted by law ’ ” ( quotin g In re Estat e of
Ch eck , 438 S.W.3d at 837 ) )

.

A su pplemental petit ion that asse rts new fac tua l alleg ations , however , may rese t the 60

- day dead line for filing a TCPA mot ion to di smiss “ as to the n ewly added substance

. ”
Jordan v. Hall , 510 S.W.3d 194, 198 (Tex. App.

— Houston [1 s t Dist.] 2 016, no pet.) (cit ing
James v. C al kins , 446 S.W.3d 135, 14 6 (Tex . App.

— Hou ston [ 1 st Dist.] 2014, pet. de nied) )

. In
de termini ng whether the dead li ne has been re se t , w e con sider whether the supp lemental petition
alter ed “ the essent ial nature ” of a claim or made “ s ubstantive alterati ons that refo rmulated ”
it

. See Ma ncilla , 2018 Te x. App. LEXIS 9371, at * 7

– 9 ; se e also Mal donado v. Fra nklin , No. 04

- 1 8

- 00819

- CV, 2019 Tex. App. L EXIS 8747, at *12

– 1 8 (Tex. App.

— San Antonio Sept. 30, 2019 , no pe t. ) (mem. o p.) ( det ermi ning whether TCPA motion to di smiss was timely as

to each c laim assert ed i n amended petiti on and concluding that m otion to dismi ss was timel y

“ o nly as to [pla in tiff ’ s] c laims for slander and libel ” and that deadline d id not r e set for ot her11

claims becau se “ same ess ential factual allegat ions ” for th ose claims were present i n ear lier petition ) ; C

ampo ne v . Kline , No . 03

- 1 6

- 00854

- CV, 2018 Tex. App. L EX IS 6032, at *16

– 17 (Tex. App.

— Austin Aug. 2, 2018, no pet.) (mem. op. ) (c oncluding th at T CPA motion w as time ly
as to new claim of de famation i n a me nded pe tition that “ alleged new and d istinct injuries ” and
add ed defendant bu t not timely as to a mende d a ll eg ation that “ merely cl arified ” original claim
of defamation )

.

On appe al, a ppell an ts ar gue that the deadl ine for filing their TC PA motion to
d ismis s was “ re set ” “ because the supplemental petition substa ntially altered the f a ctual bases ” of
Dr. Leon ’ s a nd C AWT ’ s claims and , therefore , that their motion was timely as to all clai ms
. In
the i r m otion to dismiss, howev er, a ppellant s did not subst antive ly ad dress all of Dr. Leon ’ s an d
CAWT ’ s claims

. I n addition t o the business

- dispar a gement claim , a ppellant s subst antively
address ed the t ortious

- inter fe rence and antit r ust claims that D r . Le on and CAWT asserted in the
first amended petition

. For exampl e, a ppell ants specif i cally ar gued that the supplemental petit ion su bstantially refo rmu lated Dr. Leon ’ s and CAW T ’ s to rt ious

- inter ference claims because
of the new allegation s in the supp lem en tal p etition that appellants “ allegedl y interfered with ‘ the doctor pati ent r elatio nship ’ by r eferring an unidentified patient to Dr. Blanc even th ough th e patient notified the emerg en cy room t hat he was Dr. Leon’s patient and requested Dr. Leon when
he we nt to the em ergency room
. ” In the sup plemental petition, Dr. Leon and C A WT a lle ged that
Dr. Blanc treated one of Dr. Leon ’ s pati ent s and s cheduled a fo ll ow
- up app ointment whic h
inte rf e red with Dr. Leon ’ s relationship with t his pa tient

. Appellant s argue d that this ne w factual allegation conce r ned Dr. Le on ’ s existing contract with a patient and t hat the allegations in the
first amen ded petition concerned CA WT ’ s employment agreem e n ts w ith physicians.12 In t he first amended p etition, however, the factual as se rtions inc luded that appellan ts were “ illegally and improperly diverti ng Dr . Leon ’ s prac tice to Dr. Blanc and CMA

. ”
Th e allegation about a particular pa tient in the s upplem enta l pe ti tion provi ded specifics as to the
diversion of patients from Dr. Leon ’ s practice and , thus , did not alter the es sential na ture of
Dr. Leon ’ s and C AWT ’ s claims to reset the deadline un der the TCPA for filing a motion to
dismi ss
. See Mancil la , 2018 Te x. App . LEXI S 9371, at * 8 ( affirming trial court ’ s order denying appellants ’ mot ion to dismi ss and concluding t hat pla in tiff ’ s new all egations in amende d pet ition

“ simply r efined its ear lier, broad allegations ” an d “ [did] no thing more th an provide specific i ty
of [plaintiff

] ’ s claim of which appellants had notice in t he or iginal petiti on ” ) ; H

ayes , 2018 Tex. App. LEXIS 8343 , at * 8

– 9 (conclud ing in conte xt o f TCP A motion to di smiss that

tr ial court co uld have determined tha t second a m ended pet ition th at “ asser ted sp ecifics about who and when [defa mat ion] allegations were made ” “ did not al leg e new and distinct injuries and
in s tead clarified their claim of how [defe ndant] def am ed t hem to othe r peop le ” ) ; Hicks v. Group
& Pens ion Adm ’ rs , I

nc. , 473 S.W.3d 518, 5 27 ( Tex. A pp.

— Corp us Christi

- Edinburg 2015, no
p et.) (concluding that TCPA motion to d ismiss was not time ly as to claims a sserted in ea rlier petition and observing t hat a ppellant was o n notic e of those claims for more tha n one year be fore
fil ed motion) ; Pauls e n , 455 S.W.3d at 198 ( holding that trial court p roperly denied TCPA motion
to dis miss bec ause origina l petiti on was fi led in Octobe r 2013 and moti on to di smiss w as no t
filed until March 2014 and explaining that third amended petit ion , tha t included “ additi onal
d et ails , ” did not reset deadline because “ a men ded petition relied on the same ess ent ial factual alleg ati ons as th e cla im state d in [n onmovant ’ s] or iginal pe tit io n ” ) ; see also Mald o nado , 2019 Tex. App. L EXIS 8747, at *1 7

– 18 ( c oncludin g that TCPA motion to di smiss was timely as to l ibel claim asserted in amended p etition “ because it was a n ew and diffe rent cause of a ct ion13

based on substantively different factua l all egati ons ” but not a s to trespass claim even t hough n ew factual a llegatio n were added as to that claim )

.

In the ir m otion to dismiss, a pp ellant s also ar gued that the supplemental pe tit ion

su bstant ially refo rm ulate d Dr. Leon ’ s and CAWT ’ s tortious

- inter ference and an t itrust claims
because of new allegation s in the supp le m ental petit ion that appel lants tort i ously interfered “ with
Dr. Leon ’ s pro spective pat ients by publishing defamatory s t atemen ts about Dr. Leon or his

a ssista nt p hysicians ” and that a ppellants ’ c onduc t was interferin g with Dr. Leon ’ s “ lo ng standing
and conti nu ous relati onship with pa tients and referring physicians from the emerge ncy room/department. ” 7 We similarly concl ude that the trial court would not h ave erred in concluding that the se factual alleg ations about de fam atory stat ements and relationship
inter ference in t he supplementa l peti tion did no t alter the essential n ature of or refor mu late
Dr. Leon ’ s and CAWT ’ s tortious

- int er ference and a ntitrust cla im s
. See M a nci lla , 2018 Te x. App. LEXIS 9371, a t * 8 ; see a lso Mald onado , 2019 Tex. App. L EXIS 8747, at *1 7

– 18

. As alleged in thei r May 20 16 or iginal p etition and rep eated in their February 2017 first amended petition , the crux of Dr. Le on ’ s a nd CAWT ’ s c la i ms ag ainst appellants wa s that appellants had

7 This paragrap h from th e supp lemental petition that ap pellan ts quoted states in full:
The actions of the Defendants are t ort i ously interfering with past/current/fu ture patient ch oice and car e and the sta ff r u les/regulation s and bylaw s a nd the contract for obtaining pr i vileges b y proc toring. Th e actions are being tak en by the Defendants to keep the Plaintiff from having a successful cardiology practice and limit com pet it ion. Defe nda nts ’ acti ons are such that they know that thei r inte rfe rence will cause the Plainti ff da mage in e x cess of the m inimum judicial limits of the Co urt.
Defendants intentio nally interfered with [ Dr. Leon] ’ s longsta nding and continuous relatio nship s with patients and re ferring physician s f rom the e mer gency roo m / dep artment i n a concer ted effort to restrai n c om pet ition and monopoli ze t he practi ce of car diology and the treatment of follow

- up care for heart disease in the relev ant market described in th e ame n ded petition and supplement.14

engaged in “ unla wful, t ortious, and an t icomp etit ive con duct ” “ to sever ely diminish, r estrai n, or

com pletely elim inate Dr. Leon ’ s independent medical practice f rom the pool of competing
in ter ve ntio nal card iol og i st s i n the San Ange lo, T om Green County, Texas market

. ” 8 Th e additional fact ual allegations in the suppl emental petition provi de d s p ec if ics about appellants ’ alleged conduct that was directed to ward eliminating Dr. Leon ’ s practice

. Thus , the trial cou rt
could have conclud ed that these additiona l fa ctu al allegations did not re set the deadline for filing
the mot ion to di smiss as to Dr. Leon ’ s and C AWT ’ s tortious

- inte rference and an tit rust claims
and denying the motion as to tho se claims on that basi s
. See Pa u lsen , 455 S.W.3d at 19 8 (stating
tha t tr ial cou rt does not err in denyin g motion to dismiss on ground that i t wa s not ti mely ) ; Hayes , 2018 Tex. App. LEXIS 8343, at * 8

– 9

.

A s to Dr. Leon ’ s and CAWT ’ s claims of promissory estoppel , un just enrichment , and de c larat ory ju dgment assert ed in the first a men ded petition , they did not s p eci fic ally addr ess those cla ims in th e supp lemental pe t ition , and appellants i n their TCPA motion to dismiss sought
dismissal only “ [ t ] o the extent that any of these c laims are bas ed on th e Sup p lemental Petiti on ’ s

new factua l a llegations. ” T he trial court reasonably could have concl ud ed that the motion to
dis miss was not directed t o th ese cl aims or, that even i f it w ere , it was not timely because the factual allegat ions i n the su pp l em ental petiti on did not alter the ess e ntial nat ure of tho se claims

— claims t hat Dr. Leon and C AWT had a llege d for almost three year s
. See Pau lsen , 455 S.W.3d at
19 7

– 9 8 (focusing on TC PA ’ s express ed legislative p urpo se to allo w def endant early dismissal
and concl ud ing that amend ed pe ti tion that does not inc l u de new claims or par ties does not reset

8 In the first am e n ded petit ion , Dr. Leon and CAWT also specific ally al le g ed as to one of the physicians w h om Dr. Leon hired : “ Even after the peer rev iew pro cess largely vin dicated [the p hysician] , D r. Blan c contin ued t o har ass and disparage [the physician] until be finall y announced hi s re signation from Dr. Leon ’ s pra cti ce. ”15

60

- day de adli ne ) ; see Ma ncilla , 2 018 Te x. Ap p. LEXIS 9371, at * 5

– 6 ; Campone , 2018 Tex. App . LEXIS 6032, at *16

– 17

.

A ppellants also argue that Dr

. Leon and CAWT “ have abandoned their argume nt regarding t he timeline ss ” of appellants ’ motion to dism iss and their c l aims f or promissory estop pel, un

j u st enrichment, and de claratory judgment becaus e Dr. Leo n and CAWT did not
address the timeli ness of the motion to dis mis s or these claims in the ir a pp ell ate brief

. As support for this positio n , appellants cite Whatabu rge r Rest aurant , L L C v. Ca rdw ell , 545 S. W.3d 73 , 79 (Tex. App.

— El P aso 2017, no pet.)

. We find that case procedurally distinguishable.
Foll owi ng a remand fr om t h e Texas S uprem e Court, ou r sister court considered argu ments that it
had not addres s ed in its or iginal opini on but conc lud ed that Car dwell h ad waived arguments contesting certain cl aims by not raising them to ou r sister court or the Texas Su preme Cour t

. I d

. In contrast with this case, Caldwel l was the appellant to the Tex as S upreme Cou rt , and she d id

not urg e th e argumen ts cont esti ng certain claims in her appeal to the Texas S upr em e C o urt from
our siste r co urt ’ s original opinion

. Id. at 76

.

Base d on our review of Dr. Leon ’ s an d CAWT ’ s appel late brief , we decli ne
to conc lude that they have aband oned the argume nt that ap pel lant s ’ T CPA motion to dismiss

was untimely as to some of their claims or that they have abandoned their claims of
pr omissory esto ppel, un

just enrichment, and d e claratory jud gment

. See, e.g. , Wojcik v. W esolick , 97 S. W.3d 335 , 3 36

– 37 (Tex. App.

— Houston [ 14 th Dist. ] 2 003, no p et.) (concludin g that appellee had ab ando ned ground asserted to trial court by affirmativel y “ stating in its brief that it

‘ does not c onten d at this time [ground asserted to tria l court] ’ ” ); Ha ll v. Tomball Nu rsing Ctr.,
Inc. , 92 6 S.W.2 d 617, 61 9 (Tex. App.

— Houston [14th Dist.] 1996, no w r it) (concluding that appellate court did not need to address ground wher e co unsel affirmativel y “ conc eded ” during16

o ral ar gument that “

judgment co uld not stand if it were based on this ground ” ) ; c f. Tex. R. App

. P. 38.1(g ) (stating that appellate courts ma y “ accept as true the facts stated [ in appellant ’ s brief ] unless another part y con tradicts them ” and i f “ supported b y record refer ences ” ) ; Field s v. City of
Tex as City , 864 S.W .2d 66, 67 n.1 (Tex. App.

— H ouston [1 4 th Dist.] 1993, writ denied ) (explaining th at appellants abandoned arguments on appeal when they did not raise them in t hei r brief (emphasis added) ) ; see also Les her v. Doesche r , No. 02

- 12

- 00360

- CV, 20 13 Te x. App.
LEXIS 12655, at * 8

– 9 (Tex. App.

— Fort Wort h Oct. 10, 2013, pet. d e nied) (mem. op.) ( explaining that “ [i]t is no t the proper role of t his court to create or develop arguments for an
appe llant ” and a ffirming t rial c ourt ’ s judgmen t on ground raised by app ellee s in t rial cou rt that appellants failed t o adequat ely challenge on appeal )

.

The trial court did not specif y its rea sons for p artially denying appellants ’ motion
to dismiss

. I n thi s conte xt , w e conclude that the trial court would not have erred in par tially denying appellants ’ motion o n the g ro und th at it was not timely as to the challenged claims

exce pt as to the busin e ss
- disparagement c l aim and, there fore, we limit our remain ing TCPA

a nalysis to t hat claim

. See, e.g. , Galan Fam

. Tr

. v. State , No. 03

- 15

- 00 816

- CV , 2017 Tex. App.
L EXIS 1 574, at * 3 (Tex. App.

— Austin Feb. 2 4, 2017, pet. de nied) (mem

. op.) (explaining that appel late court may a ffirm trial court ’ s “ decisio n on any underlying, m e ritor ious g round asserted
in [plea to jurisdi ctio n and Rule 91a motio n] ” when trial court ’ s order “ does not specif y on what
basis or u nder which motion the court dismissed the [a ppellant] ’ s claims ” ) ; In re Estate of
Savana , 529 S.W.3 d 587 , 592 (Tex. App.

— H ousto n [14th Dist.] 2017, no pet.) (requiring
app ellant to show that each independent g round alleg e d in Rul e 91a motion wa s insufficient to

s upport trial court ’ s order when trial co urt d id not spe cif y basis on whic h trial court grant ed mo tion)

.17

Business D isp arage ment

As the mo vant s , it was appell an ts ’ burd en to show b y a preponderance o f the
evi de nce that Dr. Leon ’ s and CAWT ’ s business

- dispara gement c laim was subject to the TCPA.
See Tex. Civ . Prac. & Rem. C o de § 27.005( b ). W e c onclu de that they satisfi ed this burden to invok e the TCPA based on Dr. Leo n ’ s and CAWT ’ s a llegations in their pleadi n gs
. S ee Adams , 547 S.W.3d at 89 7 ( e xplaining that applicab ility of TCPA is determined “ based on a holistic
review of the pleadings ” ) ; Hersh , 526 S.W.3d at 46 7 ( explain ing that defendant has met its
burden under TCPA “ [w] h en it is clear from the plaintiff ’ s ple a dings th at the action is covered by the [TCPA] ” )

. In the ir supp lemental pe tition, Dr. Le on an d CAWT asserted that appe llants

“ publish ed di spar aging comments and allegation s about [Dr. L eon ] and his prac tic e a nd his

assoc i ated cardiologists , ” “ took the ac t ion (s) t o harm the Pla intiffs ’ business interests , ” and

“ knew t he disparage ment was false and the actions were done wit h malice. ”

Dr. L eon ’ s and C AWT ’ s allegati on s of “ pub lished disparagin g comments ”

conc erning their m edical practice fall s within the de f inition of “ a co m munication made in

conn e cti o n with a matter of publ ic conce rn
. ” See Tex. C i v. Prac. & Rem. C o de § 27.001(1) (definin g “ co mmuni cation ” ), (3 ) ( def ining “ exer cise of the right of free speec h ” ), ( 7 ) (A) (def ining “ matter of pu bli c con cern ” to include iss ue re lated to health or safety); Lippincott

v. Whisenhun t , 462 S.W. 3d 507, 51 0 (Tex. 2015) (concludi ng in TCPA context th at

comm unications relating to medical services to patients were made in co nne ction with matter of public concern ) ; Batra v. Co venant Health Sys ., 562 S.W.3d 6 96, 7 09 (T ex. App.

— Amar illo 2018, pet. denied ) ( observ ing that communicat ions relat ing to ph ysician’ s med ical competence
and dis ciplinary action “have consistently been fou nd to be matte rs of p ublic concern” under TCPA) ; M

emorial Hermann Health Sys. v. Khal il , No. 0 1

- 16

- 00512

- CV, 2 017 T ex . App. LEXIS18

7474 , at * 15

– 16 (Tex. App.

— Houston [ 1 st Dist.] Au g. 8, 2017 , pet . denied) (m em. op .) (ho lding
that defendants met initial burd en of invo king TCPA as to physicia n ’ s claim for d e famation
based on communications re gard ing p hysician ’ s comp etence a s healthcare pro f ession al)

. Because appellants satisfied their burde n to invoke the TCPA , t he b urden sh ifted
to Dr. Leon an d CAWT to es t abl ish “ by cl ear and specific evidence a prima fa c ie case f or each

ess en tial elem ent

. ” See T ex. Civ. Prac. & Rem . Code § 27.005(c) ; K halil , 2017 Te x. App. LEXIS 7474, at *16

. “ To pr evail on a business disparag ement claim, a plaintiff must establish
that ( 1) the defen dant published false and disparaging informa t i o n about it, (2) with m alice, (3) without privilege, ( 4) t hat resulted in special damages to the plaintiff. ” Forbes Inc.

v. Gran ada Biosciences, Inc. , 124 S.W.3d 167, 170 (Tex. 2003) ; see In re L ip sky , 460 S.W .3d at 592 ( sta t i ng elements of b us i n ess
- dis p a r agement claim); H

urlbu t v. G ulf A tl antic Life In s. , 7 49 S.W.2d 762, 766 ( Tex. 1987) ( compa ring defama tion and business

- disp arage me nt claims

a nd exp lain ing that business

- disparagement defendant ma y be held liab le “ only if he knew of the falsity o r acted wi t h reckless disregard concern ing i t, or if he acted with i ll will or inten ded to
i nterfere in the economic intere st of the p laint iff in an unprivi leged fashion ” )

.

In th eir TCPA mo tio n to dismiss , appellant s c ontended that there was no “ clear

an d specif

ic evidence ” that app ellants pu blish ed any false or disparaging stateme nts t o third parties about Dr. Leon or CAWT or that app ellan t s acted with ma li ce or without privilege

. In th e section of their s upplement al petition asser ting the i r business

- di s para geme n t claim , Dr. Leon and
CA WT r e
- a l leged the facts a nd alle g ations set fort h earlier in the supplemen tal petition and t h e first amend ed petition. Those all egations included that app ella nts had publis hed false sta tements

“ on numerous occ asions throug h a c ampa i gn or conduct ” that sugges ted t ha t “ [ Dr. Leon] and his

assoc iated cardi ologists are/were not c ompetent interventional cardio logis ts and should not be19

re ferred patients ” and that they conducted a “ whisper ca mpa ign saying [ Dr. Leon ’ s] a ssoc iated ph ysici ans s hould not be allowed to tr eat i nterv en tional cardiolog y patients at [SA CMC]. ” T hey

m ade the following allegation s : ( i) “ In this case it is

... to ma lign and smea r a h ighly qualifi ed

car diologi st and his associa ted cardiol ogist in the practice at t he same hospital , ” a nd (i i) “ Ph ysicians brought into [Dr. Leon ’ s] pr actice were brough t up on charges of incompetent patient care

. . . [ , ] all allegations we re prov en false/f raudulent /incorrect by the comm ittee process
of the hos pital , ” and app ellants ’ “ a c tions al so were to hurt the rep utation of [Dr. Leon] and the
cardio logist physicians he has brought or tried to bring into his pr acti c e. ”

Viewing their pl eadings in the light most favorable to Dr. L eon and CAWT , we

c annot con clude that their fact ua l all egations provided enough detail t o establish a prima facie
case for the elements of a business

- disparagement claim

. See Tex. Civ . Pra c. & Rem. Code § § 27 .00 5(c), .006(a) ; In re Li psky , 4 60 S.W.3d at 5 90 ( noting that pl aintiff who is f a cing TCPA

mo tio n t o dismiss m ust present more than “ m ere notice plead ings ” and explaining that “ general allegation s that mere ly r e cite the elements o f a c ause of action ” are n ot suffic ient to establish prima f ac ie case un der TCPA and t hat “ plain tiff must provide eno ugh d eta il to show the fac tual
basis for it s claim ” ) ; Forbes , 124 S.W.3d at 170 (stating elements of busin ess
- disparag ement claim)

. Dr. Le on ’ s an d CAWT ’ s allegations

— th at (i) appe llants published false statement s and

con ducted a “ whisper campa ign ” ; (ii) “ to harm th e Pla inti ffs ’ business interests ” ; (iii) with knowledge that the “ disparage ment was false ” ; and (i v) “ wit h malice ”

— are concl usory

s tatem ents and do not provide a sufficient factual basis to establish a prima facie case. See Better
Bus. Burea u of Metro. Ho us . , Inc. v. John Moore Servs., Inc

. , 441 S.W.3d 345, 355 (Tex. App.

— Houston [1 st Dist.] 2013, pet. denied) ( “ Conclusory statements are not pro bative and acc ordi ngly
will not suffice to establish a pr ima faci e case. ” )

.20 Simi larly, we c annot conclude that Dr. Le on ’ s and CAWT ’ s evidence provide d
sufficient details of the factual underpinnings of their business

- disparagement claim to e sta blish a prima faci e case
. See In re Lipsky , 460 S.W.3d at 590 , 592

– 9 3 ( explaining tha t “ [ b]are,
base less opinions do no t c reat e fac t questions, and neither are they a sufficient substitute for the clear and specific eviden ce required to e stablish a prima f ac ie case und er the TCPA ” ) ; s ee also Montoya v. San An ge lo Cmty. Med . Ctr. , No. 03

- 16

- 005 10

- CV, 2018 Tex. App. LEXIS 38 68, at

* 13

– 1 4 (Tex. App.

— Austin May 31, 2018, pet. denied) (mem. op.) (concl uding that Montoya
failed to al lege supporting factual detai ls th at underpinne d genera l al legatio n of “ whisper

c ampaign ” and that trial court did not err in dism issing claim under Rul e 91a) ; H icks , 473 S.W.3d at 534

– 35 ( concluding that evidence did not esta blish prima facie cas e o f e ssent ial
ele ment of busi ness dis parag e men t by clear and sp ecific evidence )

. In his affidavit, Dr. Le on did

not provid e the factual underpinning s of the al leged “ wh isper campaign ” or “ published

s tatem ent ” that would show malice and no pr ivi lege

. See In re Lipsky , 460 S.W.3d at 590

– 91 ( e xplai ning that “ g eneral allegations that merely recite the element s of a cause of acti on
. . . will
not suffice ” and that “ a plainti ff must provide enough detail to show the factual basis for its
claim ” ) ; Forbes , 124 S.W.3d at 170 ( including “ with mali ce ” and “ wit hout pr ivilege ” as eleme nts of business

- disparagement clai m)

.

V iewing the pl eadings and evidence in the lig ht mos t favorab le to Dr. Leon and
CAWT , we cannot conclude that they established a prima facie case of the elements of their
bus in ess
- dispa ragem ent claim. See In re Li psky , 4 60 S.W.3d at 590 ; H icks , 473 S .W.3d at 534

– 35

. Th us, we conclude that the trial cou rt erred w he n it did not dismiss this claim

. On th is basis,

we s usta in appellants ’ issue in p art.21 Conclus ion For these reasons, we reve rs e the portion of the trial court ’ s order denying appellant s ’ TCPA motion to dis miss as t o Dr. Leon ’ s and CAWT ’ s busines s
- dispara g eme nt

c laim and remand the is sue of attorney ’ s fees , cos ts, and sa nctions as to that claim

. Se e Tex. Civ.
Prac. & Rem. Co de § 27.009

. We affirm the trial court ’ s order in all other resp e cts.

____________________ ___ ________________ ___ Melissa Goodwin , Ju st ice
B efore Jus tices Goo dwin, Baker, and Kelly
Affirmed in P art; Re versed a nd R ema nd e d in P art
Filed: April 29, 2021