Whisenhunt v. Lippincott

• Decision Date: 11 August 2015
• Docket Number: No. 06–13–00051–CV,06–13–00051–CV
• Citation: 474 S.W.3d 30
• Parties: Warren Whisenhunt, Appellant v. Matthew Lippincott and Creg Parks, Appellees
• Court: Texas Court of Appeals

474 S.W.3d 30

Warren Whisenhunt, Appellant

v.Matthew Lippincott and Creg Parks, Appellees

No. 06–13–00051–CV

Court of Appeals of Texas, Texarkana.

Submitted: June 5, 2015

Decided: August 11, 2015

Rehearing Overruled September 1, 2015

David W. Dodge, Farbod Farnia, Ty Mychael Sheaks, H. Arnold Shokouhi, Stephanie Almeter, McCathem, PLLC, Dallas, TX, for appellant.

Jon Michael Smith, Austin, TX, for appellee.

Before Morriss, C.J., Moseley and Burgess, JJ.

OPINION ON REMAND

Opinion on Remand by Justice Moseley

Warren Whisenhunt, a certified registered nurse anesthetist, brought suit against Matthew Lippincott and Creg Parks, both administrators at First Surgery Suites, LLC (FSS). In his suit, Whisenhunt alleged that Lippincott and Parks had made disparaging remarks about him to others and, in doing so, had defamed him, had tortuously interfered with existing business relationships and with prospective business relationships, and had engaged in a civil conspiracy against him.

Lippincott and Parks responded by claiming protection under the Texas Citizens Participation Act (TCPA),¹ which is designed to "protect[ ] citizens who petition or speak on matters of public concern from retaliatory lawsuits that seek to intimidate or silence them." In re Lipsky, 460 S.W.3d 579 (Tex.2015) (orig. proceeding); see TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001 –.011 (West 2014). Arguing that Whisenhunt's lawsuit was frivolous and aimed at preventing their exercise of free speech, Lippincott and Parks employed the TCPA's pre-discovery dismissal mechanism (which requires a plaintiff to make a prima facie case on each claim by "clear and specific evidence" to avoid dismissal and the imposition of attorney fees and sanctions). Applying the TCPA, the trial court dismissed all of Whisenhunt's claims except the claim for defamation and awarded attorney fees to Lippincott and Parks.

On appeal, Whisenhunt argues (1) that the TCPA violates the Texas open-courts provision, (2) that the trial court erred in denying his limited motion for discovery, (3) that the trial court erred in dismissing some of his claims because the TCPA commercial speech exemption applies to this case, and (4) that the trial court erred in concluding that Whisenhunt failed to make a prima facie case for his tortious interference and conspiracy claims.² By way of cross-appeal, Lippincott and Parks argue that the trial court erred in concluding that Whisenhunt made a prima facie case for defamation and erred in failing to award sanctions to which they claim they were entitled under the TCPA.

We find that Whisenhunt failed to preserve his first two points of error for our review. We also conclude that the commercial speech exemption does not apply to this case and that the trial court did not err in concluding that Whisenhunt failed to make a prima facie case for his dismissed claims. We also conclude that we have no jurisdiction over Lippincott and Park's cross-appeal. Accordingly, we affirm the trial court's judgment.

I. Factual Background

At all times relevant to his lawsuit, Whisenhunt was a member and the Vice President of SafeNET Anesthesia Services, P.L.L.C. (SafeNET). SafeNET became "an independent contractor and exclusive provider of anesthesiology services for" FSS. Whisenhunt was also a partner in FSS and owned approximately five percent of that company.

In May 2010, Lippincott was hired as an administrator for FSS and immediately suggested that his anesthesiologist wife perform anesthesiology services at FSS, despite its exclusive contract with SafeNET. FSS hired Parks and his company, Alliance Managed Healthcare, L.L.C. (AMH), in January 2011 to administer the business of FSS. In the management operation, Parks was subordinate to Lippincott, and "the two began jointly managing the daily operations and administration of FSS."

Whisenhunt's petition alleged that Lippincott was an employee or partner of AMH and that "[s]hortly after Parks' assumption of the position, both Defendants proposed replacing SafeNET with another anesthesiology provider at FSS," which Whisenhunt characterized as "an anticipated breach of the companies' exclusive anesthesia services contract." In May 2011, Parks and Lippincott allegedly contacted third parties and interviewed alternative providers of anesthesia services, "pressuring Whisenhunt to alter the exclusivity provisions of the contract with FSS." The petition claimed that Parks told members of FSS and three other parties that Whisenhunt was responsible for the loss of surgical patients at FSS.

Parks was terminated by FSS March 28, 2012. Whisenhunt's petition claims that this termination was brought about when the partners in FSS came to the conclusion that Parks had "grossly mismanaged collections as well as other acts of incompetence." Whisenhunt's petition claimed that Parks and Lippincott continued publishing disparaging comments about Whisenhunt to others interested in conducting business with him even after Parks' termination, including charges that Whisenhunt had sexually harassed the facility's nurses, had engaged in fraudulent behavior, was unavailable for surgeries, and was incompetent as an anesthetist. Attached to Whisenhunt's petition were copies of internal emails which had been sent by Lippincott, some of which (sent in May 2012) contained the following language:

Most recently multiple departing employees have made the following statements to me, and I am under the impression that they have filed reports to this effect with Board of Nursing and other regulatory groups, but I have no idea how to confirm that. Also, I have no idea if these are to be treated as unsubstantiated claims from individuals, or if there are obligations for FSS to handle them in a certain way:

• SafeNet owner representing self to be a physician—witness statement only.

• Continued violation of sterile protocol policy—witness statement only.

• SafeNet owner endangering patients for personal financial gain by ordering staff to proceed with cases when during pre op it is discovered that patients have eaten recently or have cardiac issues that should be assessed first.—witness statement only.

• Obstruction of reporting processes and corrective action—witness statements

• Reports of harassment going undocumented.—witness statements

Other reports on file, some or all of which may have been submitted to the Board of Nursing:

Incident reporting form # 00001

States that falsification of scrub tech record on 11/2/2010 and 12/17/2010 was at the direction of Administrator and Director of Nursing Warren Whisenhunt, (not sure if Warren still had the DoN³ title at this time but the report describes him as such). States that Maria and Leigh Ann Simpson were instructed to do this by Warren. Report prepared by Maria and signed by Maria, Leigh Ann, Josh Green and Tina Bullard. It is not specifically stated when Tina learned of this, and who told her about it.

Incident reporting form # 00004

States that on 2/3/2011 Warren left before a 1 year old child had met discharge criteria. It was prepared by Leigh Ann and signed by Maria and Janet.

Incident reporting form # 00005

States that on 3/31/2011 Warren failed to provide adequate coverage for pediatric cases. It was prepared and signed by Maria.

Incident reporting form # 00006

States that Warren placed an IV when Tina was supposed to do so, in addition to administering a different narcotic than was ordered prior to pre-op or patient consent being completed. It was prepared by Leigh Ann and is signed by Leigh Ann and Tina.

Other reports for which there are some records such as written statements and/or presumably Board of Nursing complaint records:

• Witnesses supported reports of workplace sexual harassment and unwanted physical contact by a superior and attempts to make inappropriate contact with employee outside of the workplace.—multiple witness statements, emails, etc.

• Reports of collecting cash and checks from patients and ordering employees not to make receipts or other records were witnessed and reported by multiple employees, several of which are still employed.

• Participation in allowing the hiring of an employee ineligible for employment due to criminal record.

Issues reported and documented by staff that the DoN is responsible for preventing. Scans of chart, log and other documents have been provided and can be made available:

• 2 reports of wrong physician name on consent.

• Reports of patient arm bands not being used.

• Required confirmation from DoN of completion of patient order and chart review, etc. not provided as required by policy.

• Chart status, case detail, etc. not recorded anywhere less than 24 hours before case is scheduled to begin.

• Failure to comply with DoN chart & case review/"Check off" requirement for all cases.

• Cscope patient who was fed when he should not have been preoperatively, causing him to become ill. Reported by third party medical staff.

• 2 hour wait by patient in pre-op with no one coming to check on her. (hand written report), when reported to FSS owners DoN and Administrator took action making it very difficult for any incidents like this to be identified and reported to the Medical Executive Board, QAPI or other entities.

• Pre-initialing central scheduling sheets before patient and other data had been received, reviewed, etc.

....

Some of the supporting documents available include:

2 reports of wrong physician name on consent. Example shows Dr. Hester referenced at the top of the page and Dr. Hackbarth (the physician providing the treatment) at the bottom.

Scan # 102313

Scan # 102303

Reports of patient arm bands not being used.

Scan # 102239

Required confirmation from DoN of patient order review, completion, etc. not provided as required by policy. Patient case scheduled without these steps completed.

Scan # 155528

Chart status, case detail, etc. not recorded anywhere less than 24 hours before case begins—and several days after cases had been scheduled. In this example there was none of the required data

...