Reverse and Remand; Opinion Filed July 9, 2019.




                                            In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-18-00768-CV

                NOBLE ANESTHESIA PARTNERS, PLLC, Appellant
                                     V.
  U.S. ANESTHESIA PARTNERS, INC., U.S. ANESTHESIA PARTNERS OF TEXAS,
  P.A., INDIVIDUALLY, AND/OR D/B/A USAP-TEXAS, AND/OR D/B/A VITAL PAIN
      CARE, U.S.A.P., LLC, PINNACLE ANESTHESIA TEXAS, PLLC, TRINITY
         ORTHOPEDICS, PLLC, AND LARRY KJELDGAARD, D.O., Appellees

                      On Appeal from the 298th Judicial District Court
                                   Dallas County, Texas
                           Trial Court Cause No. DC-17-09602

                            MEMORANDUM OPINION
                          Before Justices Myers, Osborne, and Nowell
                                   Opinion by Justice Nowell
       Noble Anesthesia Partners, PLLC (Noble) sued U.S. Anesthesia Partners, Inc.; U.S.

Anesthesia Partners of Texas, P.A., Individually and/or d/b/a USAP-Texas and/or d/b/a Vital Pain

Care; U.S.A.P., LLC; and Pinnacle Anesthesia Texas, PLLC (collectively, USAP) as well as

Trinity Orthopedics, PLLC and Larry Kjeldgaard, D.O. (collectively, Trinity) for tortious

interference with an existing business relationship. USAP and Trinity filed motions to dismiss

pursuant to the Texas Citizens Participation Act (the TCPA). See TEX. CIV. PRAC. & REM. CODE

ANN. §§ 27.001–.011. Following a hearing, the trial court granted the motions.

       In five issues on appeal, Noble asserts the trial court erred by granting the motions to

dismiss, awarding attorney’s fees to Trinity and USAP, and not awarding attorney’s fees to Noble.
We conclude USAP and Trinity failed to establish the TCPA applies to Noble’s claim.

Accordingly, we reverse the trial court’s orders granting Trinity’s and USAP’s motions to dismiss

and awarding attorney’s fees to those parties. We remand the case to the trial court for further

proceedings.

                                                             BACKGROUND

           Noble and USAP both provide anesthesia services to physicians. Trinity is a group of

orthopedic surgeons; Kjeldgaard is Trinity’s head orthopedic surgeon. Noble alleges that in 2014,

it began providing anesthesia services to Dr. Scott Gibson,1 a Trinity employee, and, pursuant to

an oral contract, subsequently became Gibson’s exclusive anesthesia provider. In March 2016,

Trinity approached Noble and proposed Noble could provide anesthesia services to several Trinity

surgeons. Kjeldgaard “prefaced the proposal with the statement that Trinity Orthopedics wanted

to ‘monetize’ anesthesia services provided to Trinity Orthopedics.” Kjeldgaard allegedly told

Noble that “Grapevine Anesthesia, PLLC2 had offered to provide anesthesia services to Trinity

Orthopedics with payments to Trinity Orthopedics on certain high value out-of-network

commercial payor cases in exchange for the agreement that Trinity Orthopedics would send all of

its remaining cases to one or more of the Defendants.” Kjeldgaard’s wife advised Noble that if it

would match or improve upon the proposal from Grapevine Anesthesia, then Noble would be

awarded all anesthesia procedures associated with surgeries conducted by Trinity’s physicians.

           Noble declined the “improper proposal,” which it asserts involves “improper kickbacks,

bribes, and/or discounts under the federal anti-kickback statutes,” and Trinity awarded its

anesthesia services to another provider. However, Gibson continued using Noble pursuant to the

parties’ oral contract. The petition states that in November 2016, “Dr. Gibson advised Noble that



   1
       Gibson is not a party to the lawsuit.
   2
       Grapevine Anesthesia, PLLC is not a party to the lawsuit.

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Dr. Kjeldgaard demanded that he terminate Noble for anesthesia services and insisted that he

instead utilize” USAP. “After Noble complained, it was allowed to continue providing anesthesia

services to Dr. Gibson for a short period of time. Within weeks thereafter[,] Dr. Gibson[]

capitulated to Dr. Kjeldgaard’s demands, and withdrew all anesthesia services from Noble

effective as of January 1, 2017.” Noble’s petition continues: “But for the interference by Dr.

Kjeldgaard and the other Defendants [sic] illegal kickback scheme[,] Noble would not have been

terminated by Dr. Gibson.”

       Noble sued Trinity and USAP for tortuously interfering with its existing business

relationship, including its oral contract, with Gibson. Trinity filed a motion to dismiss pursuant to

the TCPA asserting the lawsuit arises from its protected freedom of association. USAP also filed

a motion to dismiss pursuant to the TCPA, stating it joined Trinity’s motion. After conducting a

hearing, the trial court granted the motions to dismiss. The trial court also awarded attorney’s fees

and costs to Trinity and USAP. This appeal followed.

                                         LAW & ANALYSIS

       Under the TCPA, a party may file a motion to dismiss a legal action that is based on, related

to, or in response to the party’s exercise of the right of free speech, right to petition, or right of

association. TEX. CIV. PRAC. & REM. COD ANN. § 27.003(a). Trinity’s motion, which USAP

joined, asserted Noble’s legal action is based on its right of association. The TCPA defines the

“exercise of the right of association” as “a communication between individuals who join together

to collectively express, promote, pursue, or defend common interests.” Id. § 27.001(2). A

“communication” is “the making or submitting of a statement or document in any form or medium,

including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1).

       Reviewing a TCPA motion to dismiss requires a three-step analysis. Youngkin v. Hines,

546 S.W.3d 675, 679–80 (Tex. 2018). Initially the moving party must show by a preponderance

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of the evidence that the TCPA applies to the legal action against it, meaning, the legal action is

based on the defendant’s exercise of rights defined in the TCPA. See TEX. CIV. PRAC. & REM.

COD ANN. § 27.005(b). If the movant meets its burden, the nonmoving party must establish by

clear and specific evidence a prima facie case for each essential element of its claim. Id.

§ 27.005(c). If the nonmoving party satisfies that requirement, the burden shifts back to the

movant to prove each essential element of any valid defenses by a preponderance of the evidence.

Id. § 27.005(d).

       We review de novo the trial court’s determinations that the parties met or failed to meet

their burdens of proof under section 27.005. Campbell v. Clark, 471 S.W.3d 615, 623 (Tex.

App.—Dallas 2015, no pet.). “In conducting this review, we consider, in the light most favorable

to the non-movant, the pleadings and any supporting and opposing affidavits stating the facts on

which the claim or defense is based.” Fishman v. C.O.D. Capital Corp., No. 05-16-00581-CV,

2017 WL 3033314, at *5 (Tex. App.—Dallas July 18, 2017, no pet.) (mem. op.); see also TEX.

CIV. PRAC. & REM. CODE ANN. § 27.006(a).

       As the movants, Trinity and USAP were required to show by a preponderance of the

evidence that the TCPA applies to Noble’s legal action. TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.003(a). In its first and third issues, Noble argues, in part, that Trinity and USAP failed to

meet their burden to demonstrate by a preponderance of the evidence that Noble’s legal action is

based on, relates to, or is in response to Trinity’s and USAP’s exercise of their right of association.

       Trinity’s motion states Noble’s lawsuit is “based on Defendants’ decision to associate with

a different provider of anesthesia services.” Citing Noble’s petition, Trinity’s motion identifies a

single communication supporting its argument that the suit is based on, relates to, or is in response

to its right of association: “Plaintiff alleges that Dr. Kjeldgaard—Trinity’s manager—asked Dr.

Gibson—a Trinity employee—to stop associating with Plaintiff for anesthesia services because

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Trinity wanted to pursue a relationship with one of Plaintiff’s competitors.” Kjeldgaard’s alleged

oral statement to Gibson is a communication within the definition of section 27.001(1). See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.001(1).

       However, after identifying a statement, Trinity’s motion makes no showing that Kjeldgaard

and Gibson were individuals who “join[ed] together to collectively express, promote, pursue, or

defend common interests.” See id. § 27.001(2). Kjeldgaard’s affidavit is the only evidence

supporting Trinity’s motion. The brief affidavit identifies his and Gibson’s roles with Trinity and

states: “Trinity chose not to work with Noble Anesthesia Partners (“Plaintiff”), and Dr. Gibson

stopped using Plaintiff for anesthesia services.” This affidavit is no evidence that the sole

communication Trinity identifies was made between individuals who “join[ed] together to

collectively express, promote, pursue, or defend common interests.” See id.

       Noble’s petition also does not allege Gibson and Kjeldgaard joined together to express,

promote, pursue, or defend any common interest. Considering the petition in the light most

favorable to Noble, the non-movant, the petition supports the opposite conclusion: Kjeldgaard and

Gibson had opposing interests. Noble alleges: “Dr. Gibson, advised Noble that Dr. Kjeldgaard

demanded that he terminate Noble for anesthesia services and insisted that he instead utilize”

USAP. (Emphasis added.) Further, the petition states: Within weeks thereafter[,] Dr. Gibson[]

capitulated to Dr. Kjeldgaard’s demands, and withdrew all anesthesia services from Noble

effective as of January 1, 2017. . . . But for the interference by Dr. Kjeldgaard and the other

Defendants [sic] illegal kickback scheme[,] Noble would not have been terminated by Dr. Gibson.”

(Emphasis added.) The language in Noble’s petition indicates Gibson capitulated to Kjeldgaard’s

demands and only terminated his relationship with Noble because Kjeldgaard insisted he do so.

But for Kjeldgaard’s demands and insistence, Gibson would not have capitulated, and the




                                               –5–
relationship between Gibson and Noble would have continued. These allegations do not show

individuals joining together for a common purpose. See id.

           We conclude Trinity did not meet its burden to demonstrate by a preponderance of the

evidence that Noble’s legal action is based on, relates to, or is in response to Trinity’s exercise of

its right of association. We sustain Noble’s first issue to this extent.

           USAP joined Trinity’s motion and did not provide any additional evidence or argument to

show that Noble’s legal action is based on, relates to, or is in response to USAP’s exercise of its

right of association. Trinity’s motion did not identify any communication involving USAP; USAP

also failed to identify any communication. Rather, USAP’s motion states: “Noble’s Original

Petition does not make a single allegation of any act by—or statement of—the USAP Parties to

support its sole cause of action for tortious interference.” Subsequently, while arguing that Noble

could not prove tortious interference against USAP, USAP’s motion states: “Noble’s petition

alleges only statements made by Dr. Kjeldgaard and his spouse, and points to no acts or statements

by any of the USAP Parties whatsoever.”3 USAP was required to show the existence of a

communication to meet its burden under section 27.001(2). See id. (defining exercise of the right

of association). Because it failed to do so—and instead specifically disavowed the existence of

any acts or statements by USAP in Noble’s petition—we conclude USAP did not meet its burden

to demonstrate by a preponderance of the evidence that Noble’s legal action is based on, relates




     3
       In the “USAP Parties’ Response to Plaintiff’s Motion for Leave to Pursue Limited Discovery from the USAP Defendants”, USAP continued
representing to the trial court that Noble did not allege any statements by USAP and, therefore, did not allege any statements subject to the TCPA.
USAP’s response states in part:
           Plaintiff argues that it needs the Challenged Discovery to “determine what speech and/or association the USAP [Parties]
           claims [sic] as protected.” This is a red-herring. Plaintiff’s Petition does not allege any statements made by the USAP
           Parties, and the USAP Parties’ [sic] have, therefore, not argued that any statements by them are the subject of the Anti-
           SLAAP motions. Rather, it is the Trinity Defendants that claim to have made protected statements and to have a right of
           free association. Discovery into statements or actions of the USAP Parties is plainly irrelevant to an inquiry into the Trinity
           Defendants’ rights.
(Internal citation omitted.)

                                                                       –6–
to, or is in response to USAP’s exercise of its right of association. We sustain Noble’s third issue

to this extent.

        To the extent Noble’s first and third issues argue Noble established by clear and specific

evidence a prima facie case for each essential element of its tortious interference claim and the

appellees failed to establish a valid defense, we do not reach those arguments. See TEX. R. APP.

P. 47.1.

        In its second and fourth issues, Noble argues the trial court erred by awarding attorney’s

fees and costs to Trinity and USAP. We agree. If a court orders dismissal of a legal action under

the TCPA, the court shall award “court costs, reasonable attorney’s fees, and other expenses

incurred in defending against the legal action as justice and equity may require.” TEX. CIV. PRAC.

& REM. CODE ANN. § 27.009(a). The availability of fees and costs awarded to Trinity and USAP

were statutorily dependent upon the dismissal of Noble’s suit against them. See id. Because we

conclude Trinity and USAP did not meet their burden under the TCPA and, therefore, the trial

court erred by granting their motions to dismiss, we also conclude the award of attorney’s fees and

costs are in error. We sustain Noble’s second and fourth issues.

        In its fifth issue, Noble asserts the trial court erred by not granting its request for attorney’s

fees because Trinity’s and USAP’s motions to dismiss were frivolous or solely intended to cause

delay. The trial court may award costs and reasonable attorney’s fees to the responding party if

the court concludes the motion to dismiss is frivolous or solely intended to delay. See id.

§ 27.009(b). Because Noble did not prevail in the trial court, the court did not have an opportunity

to consider whether the motions to dismiss were frivolous or solely intended to delay. The results

obtained by the parties have changed as a result of our opinion; thus, the issue of whether the

motions to dismiss were frivolous or solely intended to delay must be remanded to the trial court

for its consideration.

                                                  –7–
                                            CONCLUSION

       We reverse the trial court’s orders granting Trinity’s and USAP’s motions to dismiss. We

reverse the trial court’s orders awarding attorney’s fees and costs to Trinity and USAP. We remand

the case to the trial court for further proceedings.




                                                       /Erin A. Nowell/
                                                       ERIN A. NOWELL
                                                       JUSTICE



180768F.P05




                                                 –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 NOBLE ANESTHESIA PARTNERS,                          On Appeal from the 298th Judicial District
 PLLC, Appellant                                     Court, Dallas County, Texas
                                                     Trial Court Cause No. DC-17-09602.
 No. 05-18-00768-CV         V.                       Opinion delivered by Justice Nowell.
                                                     Justices Myers and Osborne participating.
 U.S. ANESTHESIA PARTNERS, INC.,
 U.S. ANESTHESIA PARTNERS OF
 TEXAS, P.A., INDIVIDUALLY, AND/OR
 D/B/A USAP-TEXAS, AND/OR D/B/A
 VITAL PAIN CARE, U.S.A.P., LLC,
 PINNACLE ANESTHESIA TEXAS,
 PLLC, TRINITY ORTHOPEDICS, PLLC,
 LARRY KJELDGAARD, D.O., Appellees

        In accordance with this Court’s opinion of this date, we REVERSE the trial court’s
orders dated January 31, 2018 and February 2, 2018, granting the motions to dismiss filed by
appellees Trinity Orthopedics, PLLC, Larry Kjeldgaard, D.O., U.S. Anesthesia Partners, Inc.,
U.S. Anesthesia Partners of Texas, P.A., U.S.A.P., LLC, Pinnacle Anesthesia Consultants,
PLLC, and Pinnacle Anesthesia Texas, PLLC.

       We also REVERSE the trial court’s orders dated June 15, 2018, awarding attorney’s fees
to appellees.

       We REMAND the cause to the trial court for further proceedings.

       It is ORDERED that appellant Noble Anesthesia Partners, PLLC recover its costs of this
appeal from appellees.


Judgment entered this 9th day of July, 2019.




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