                                                                                                   ACCEPTED
                                                                                               06-13-00051-CV
                                                                                    SIXTH COURT OF APPEALS
                                                                                          TEXARKANA, TEXAS
                                                                                          7/2/2015 10:43:59 AM
                                                                                              DEBBIE AUTREY
                                                                                                        CLERK

                         NO. 06-13-00051-CV
  ________________________________________________________________
                                                        RECEIVED IN
                                                   6th COURT OF APPEALS
                    IN THE COURT OF APPEALS          TEXARKANA, TEXAS
               FOR THE SIXTH DISTRICT OF TEXAS7/2/2015 10:43:59 AM
                      AT TEXARKANA, TEXAS              DEBBIE AUTREY
                                                          Clerk
 _________________________________________________________________

                                 WARREN WHISENHUNT,
                                      Appellant,

                                                   v.

            MATTHEW LIPPINCOTT and CREG PARKS,
                   Appellees and Cross-Appellants,
__________________________________________________________________

     On Appeal from the County Court at Law of Hopkins County, Texas
                           Cause No. CV41303
                  The Honorable Amy M. Smith Presiding
   ______________________________________________________________

   APPELLEES AND CROSS-APPELLANTS, MATTHEW LIPPINCOTT
            AND CREG PARKS’, BRIEF ON REMAND

   ______________________________________________________________


                                                        Jon M. Smith
                                                        State Bar No. 18630750
                                                        3305 Northland Drive
                                                        Suite 500
                                                        Austin, Texas 78731
                                                        Telephone: (512) 371-1006
                                                        Facsimile: (512) 476-6685
                                                        jon@jonmichaelsmith.com



ORAL ARGUMENT REQUESTED

Appellees’ and Cross-Appellants’ Brief on Remand – Page i
                          REQUEST FOR ORAL ARGUMENT


           Appellees and Cross-Appellants request oral argument. Because of the

     recent passage of the statute at issue, the recent flurry of appellate opinions

 interpreting the statute and, therefore, the unique nature of the issues presented in

         this case, oral argument will assist the court in reaching its decision.




Appellees’ and Cross-Appellants’ Brief on Remand – Page ii
                       IDENTITY OF PARTIES AND COUNSEL


Appellant:                                               Warren Whisenhunt

Appellant’s Counsel:                                     Farbod Farnia
                                                         State Bar No. 24078493
                                                         McCathern, L.L.P.
                                                         Regency Plaza
                                                         3710 Rawlins, Ste. 1600
                                                         Dallas, Texas 75219
                                                         Telephone: (214) 741-2662
                                                         Facsimile: (214) 741-4717




Appellees and Cross-Appellants:                          Matthew Lippincott and Creg Parks

Appellees’ and Cross-Appellant’s Counsel: Jon M. Smith
                                          State Bar No. 18630750
                                          3305 Northland Drive
                                          Suite 500
                                          Austin, Texas 78731
                                          Telephone: (512) 371-1006
                                          Facsimile: (512) 476-6685
                                          jon@jonmichaelsmith.com




Appellees’ and Cross-Appellants’ Brief on Remand – Page iii
                             REFERENCE TO THE PARTIES

        Appellees and Cross-Appellants will refer to Appellant, Warren Whisenhunt

as “Whisenhunt” in their brief. They will refer to Appellees and Cross-Appellants

as “Lippincott” and “Parks.”



                             REFERENCE TO THE RECORD

Reference                               Meaning

C.R. ___                                Clerk’s Record at page ___

S.C.R. ____                             Supplemental Clerk’s Record at page ___




Appellees’ and Cross-Appellants’ Brief on Remand – Page iv
                                   TABLE OF CONTENTS

                                           PAGE
REQUEST FOR ORAL ARGUMENT………………………………….................ii

IDENTITY OF PARTIES AND COUNSEL………………………............……...iii

REFERENCE TO THE PARTIES........…………………………………………...iv

REFERENCE TO THE RECORD........…………………………………………...iv

TABLE OF CONTENTS………………………………………………………..…v

INDEX OF AUTHORITIES…………………………………………………........vi

STATEMENT OF THE CASE ………………………………………………........2

STATEMENT OF FACTS …………………………………………………...........3

STANDARD OF REVIEW ………………………………………………..............6

SUMMARY OF THE ARGUMENT ……………………………………...............6

ISSUE 1

       Whisenhunt failed to meet his burden of presenting clear and specific
       evidence as to each element of his causes of action........................................6

SUMMARY …………………………………………………………………..........7

ARGUMENT AND AUTHORITIES ………………………………………..........7

CONCLUSION ……………………………………………………………..........25

PRAYER …………………………………………………………………............25

CERTIFICATE OF COMPLIANCE…………………………………………….26

CERTIFICATE OF SERVICE ……………………………………………….......27


Appellees’ and Cross-Appellants’ Brief on Remand – Page v
                                         INDEX OF AUTHORITIES

CASES                                                                                                               PAGE

Avila v. Larrea, 394 S.W.3d 646, 652-653 (Tex. App.—Dallas 2013, writ
pending).....................................................................................................................6

Bilbrey v. Williams, 2015 Tex. App. LEXIS 2359 (Tex. App.—Fort Worth 2015,
no writ)....................................................................................................................22

Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005).............................................18

Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014, no writ)...............23

Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995).........................................14

In re Lipsky, ___ S.W.3d. __, __ (Tex. 2015)...........................................................7

Lippincott and Parks v. Whisenhunt, 2015 Tex. LEXIS 347 (Tex. 2015)................2

Main v. Royall, 348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.)..............20

Morgan Stanley & Co. v. Texas Oil Company, 958 S.W.2d 178 (Tex. 1998)........14

Plotkin v. Joekel, 304 S.W.3d 455, 487 (Tex. App.—Houston [1st Dist.] 2009, no
pet.)..........................................................................................................................16

Serafine v. Blunt, 2015 Tex. App. LEXIS 4517 (Tex. App.—Austin 2015, no
writ).........................................................................................................................24

Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.
2010)..........................................................................................................................6

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998)..........................19

Whisenhunt v. Lippincott, 416 S.W.3d 689, 692-694 (Tex. App.—Texarkana
2013)..........................................................................................................................2



Appellees’ and Cross-Appellants’ Brief on Remand – Page vi
STATUTES

Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011 (West Supp.
2012)......................................................................................................................2, 4




Appellees’ and Cross-Appellants’ Brief on Remand – Page vii
                         NO. 06-13-00051-CV
  ________________________________________________________________

                    IN THE COURT OF APPEALS
               FOR THE SIXTH DISTRICT OF TEXAS
                      AT TEXARKANA, TEXAS
 _________________________________________________________________

                                 WARREN WHISENHUNT,
                                      Appellant,

                                                  v.

            MATTHEW LIPPINCOTT and CREG PARKS,
                   Appellees and Cross-Appellants,
__________________________________________________________________

     On Appeal from the County Court at Law of Hopkins County, Texas
                           Cause No. CV41303
                  The Honorable Amy M. Smith Presiding
   ______________________________________________________________

   APPELLEES AND CROSS-APPELLANTS, MATTHEW LIPPINCOTT
            AND CREG PARKS’, BRIEF ON REMAND

   ______________________________________________________________




TO THE HONORABLE JUSTICES OF THE SIXTH COURT OF APPEALS:

       Appellees and Cross-Appellants, Matthew Lippincott and Creg Parks, file

this brief on remand requesting that this Court affirm the Trial Court’s Final

Judgment and would show as follows:




Appellees’ and Cross-Appellants’ Brief on Remand – Page 1
                               STATEMENT OF THE CASE

       Whisenhunt sued Parks and Lippincott, alleging defamation and other causes

of action, based on communications Parks and Lippincott allegedly made to third

parties about Whisenhunt. Parks and Lippincott filed a motion to dismiss pursuant

to the Texas Citizens Participation Act (“TCPA”). Tex. Civ. Prac. & Rem. Code

Ann. §§ 27.001-27.011 (West Supp. 2012).

     This is an appeal of the trial court’s order granting in part and denying in part

Lippincott and Park’s motion to dismiss. Whisenhunt appealed Judge Smith’s

order and Parks and Lippincott filed a cross-appeal arguing that Judge Smith erred

by denying the motion as it related to Whisenhunt’s defamation claim and by

failing to award a sanction as required by the statute. This Court reversed Judge

Smith’s order, holding that the TCPA does not apply to speech that is privately

communicated. Whisenhunt v. Lippincott, 416 S.W.3d 689, 692-694 (Tex. App.—

Texarkana 2013).

     The Texas Supreme Court reversed this Court’s decision holding that

Lippincott and Parks successfully demonstrated the applicability of the TCPA.

Lippincott and Parks v. Whisenhunt, 2015 Tex. LEXIS 347 (Tex. 2015).              The

Supreme Court stated that this Court “must now consider, among other matters,

whether Whisenhunt met the prima facie burden the Act requires. Id. The Supreme

Court further stated that In re Lipsky, ___ S.W.3d. __, __ (Tex. 2015), squarely


Appellees’ and Cross-Appellants’ Brief on Remand – Page 2
addresses the standard a plaintiff must meet in order to establish a prima facie case

and ordered this court to consider this case in light of its opinion in Lipsky. Id.



                                       STATEMENT OF FACTS1

         On November 16, 2012, Whisenhunt sued Lippincott and Parks in Case

Number CV41303 in the County Court at Law of Hopkins County, Texas. (C.R. 2)

In his original petition Whisenhunt alleged that he is a Certified Registered Nurse

Anesthetist and was a member and vice president of a company called SafeNET

Anesthesia Services, P.L.L.C. (“SafeNET”). (C.R. 3) Whisenhunt alleged that

SafeNET was the exclusive provider for anesthesiology services for another

company, First Surgery Suites, LLC (“FSS”). (C.R. 3)

         Whisenhunt also alleged in his original petition that Lippincott was hired as

an administrator of FSS in May 2010 and that he communicated to FSS that his

wife was an anesthesiologist and that she should be able to work for FSS. (C.R. 4)

He also alleged that Parks and his company Alliance Managed Healthcare, L.L.C.

were hired as an administrator of FSS and that both Parks and Lippincott

recommended to FSS that it hire another anesthesiology provider. (C.R. 4)

         Whisenhunt went on to allege in his original petition that Parks and

Lippincott made communications and publications to other persons that attempted

1
 A detailed statement of facts is included in Parks and Lippincott’s prior briefs in this court, but this section is
provided for the convenience of the court.

Appellees’ and Cross-Appellants’ Brief on Remand – Page 3
to have FSS breach its agreement with Whisenhunt’s company, alleging that

Whisenhunt was responsible for FSS losing surgical patients and accusing

Whisenhunt of sexual harassment, fraudulent behavior and incompetence. (C.R. 4-

5)    Based on the factual allegations in his petition, Whisenhunt alleged the

following causes of action: (1) Defamation; (2) Tortious Interference with Existing

Business Relationships; (3) Tortious Interference with Prospective Business

Relationships; and (4) Conspiracy to Interfere with Business Relations. (C.R. 5-7)

       Parks and Whisenhunt timely filed their answer on December 21, 2012.

(C.R. 18)      They also timely filed a motion to dismiss pursuant to the Texas

Citizens Participation Act (“TCPA”), which provides for a dismissal of actions

involving the exercise of certain constitutional rights. Tex. Civ. Prac. & Rem. Code

Ann. §§ 27.001-27.011 (West Supp. 2012). (C.R. 23) The motion to dismiss stated

that Whisenhunt’s claims should be dismissed because they were based on, related

to, or were in response to Lippincott’s and Parks’ exercise of the right of free

speech, citing section 27.003 of the statute. (C.R. 23-24)

       A hearing was set on the motion to dismiss for February 15, 2013 and

Whisenhunt’s attorneys were timely notified of it.           On February 14, 2013

Whisenhunt filed his response to the motion to dismiss. (C.R. 26) Whisenhunt’s

response claimed that the motion to dismiss was improper under the Texas Anti-

SLAPP statute, that the Anti-SLAPP statute does not apply to commercial speech


Appellees’ and Cross-Appellants’ Brief on Remand – Page 4
and that the evidence attached to the response established a prima facie case of the

causes of action alleged by Whisenhunt. (C.R. 26-37) The only evidence attached

to Whisenhunt’s response to the motion to dismiss was three emails from

Lippincott and the affidavit of Gary Boyd. (C.R. 39-48 and Appendix 3)

       The motion to dismiss hearing was held on February 15, 2013 and on March

15, 2013 Judge Smith signed an order granting in part and denying in part the

motion. (C.R. 49 and Appendix 1) Judge Smith dismissed Whisenhunt’s claims

for tortious interference with existing business relationships, tortious interference

with prospective business relationships and conspiracy to interfere with business

relations. (C.R. 49-50 and Appendix 1) She denied the motion with regard to

Whisenhunt’s defamation claim. (C.R. 49-50 and Appendix 1) She also ordered

that Whisenhunt pay Lippincott and Parks attorney’s fees in the amount of

$2,887.50 but she did not order the payment of a sanction. (C.R. 49-50 and

Appendix 1)

       Whisenhunt filed his notice of appeal on May 15, 2013. (C.R. 52)

Lippincott and Parks filed their notice of cross-appeal on May 23, 2013. (S.C.R.

25) The remaining aspects of the procedural history of this case are set forth in the

Statement of the Case section above.




Appellees’ and Cross-Appellants’ Brief on Remand – Page 5
                                 STANDARD OF REVIEW
       The determination as to whether a party has met its burden in responding to

a TCPA motion to dismiss should be reviewed de novo as an issue of statutory

construction. Avila v. Larrea, 394 S.W.3d 646, 652-653 (Tex. App.—Dallas 2013,

writ pending), citing Tex. Lottery Comm’n v. First State Bank of DeQueen, 325

S.W.3d 628, 635 (Tex. 2010). In Avila, the court was reviewing, in part, the trial

court’s failure to grant a motion to dismiss under the TCPA and specifically

considered whether the plaintiff had met his burden of establishing a prima facie

case for each element of his claim by clear and specific evidence as required by the

statute. Avila, 394 S.W.3d at 657.




                           SUMMARY OF THE ARGUMENT


ISSUE 1
       Whisenhunt failed to meet his burden of presenting clear and specific

evidence as to each element of his causes of action.




Appellees’ and Cross-Appellants’ Brief on Remand – Page 6
SUMMARY

       Lippincott and Parks’ motion to dismiss should have been granted in its
entirety. Neither Whisenhunt’s original petition nor the evidence attached to his
response to the motion to dismiss contained the level of detail or specificity that is
required by the TCPA.




                             ARGUMENTS AND AUTHORITIES
     When the facts of this case are considered in light of the Supreme Court’s

analysis in Lipsky and in light of other recently issued opinions discussing the

topic, it is clear that Whisenhunt failed to meet the TCPA’s requirement that he

establish by clear and specific evidence a prima facie case for each essential

element of his claims.



     In Re Lipsky

       The Lipskys drilled a water well for their house. In re Lipsky, 2015 Tex.

LEXIS 350, *8 (Tex. 2015). Range later drilled two gas wells near the Lipskys’

property. Id. After that, the Lipskys started having problems with their water

production. Id. The Lipskys engaged an environmental consultant, Alisa Rich,

who confirmed the presence of methane and other gases in the Lipskys’ well. Id.

Lipsky made a video of himself lighting gas escaping from a garden hose attached


Appellees’ and Cross-Appellants’ Brief on Remand – Page 7
to the vent of his well and sent it to the Environmental Protection Agency. Id. The

EPA determined that Range’s activities had contributed to gas in the Lipskys’

water, but the Texas Railroad Commission conducted its own investigation and

concluded that Range was not responsible. Id.

           The Lipskys sued Range for damaging their water supply. Id.                              Range

counterclaimed for civil conspiracy, aiding and abetting, defamation, and business

disparagement and added Rich as a third party defendant. Id. The Lipskys and

Rich filed a motion to dismiss the counterclaims pursuant to the TCPA which the

trial court denied.

           The court of appeals reversed the trial court as to the counterclaims against

Lipsky’s wife and Rich and ordered that those claims be dismissed. Id. However,

the court of appeals held that the counterclaims against Lipsky should not be

dismissed. Id. Lipsky appealed to the Texas Supreme Court.

           The primary issue before the Supreme Court was whether a plaintiff

opposing a TCPA motion to dismiss could rely on circumstantial evidence in its

response2. In re Lipsky at *10.                       The Supreme Court held that circumstantial

evidence may be enough to overcome a TCPA motion to dismiss. Id. But it also

held that “mere notice pleading – that is, general allegations that merely recite the

elements of a cause of action – will not suffice. Instead, a plaintiff must provide


2
    Whether or not circumstantial evidence can be considered is not an issue in the instant case.

Appellees’ and Cross-Appellants’ Brief on Remand – Page 8
enough detail to show the factual basis for its claim. In a defamation case that

implicates the TCPA, pleadings and evidence that establishes the facts of when,

where, and what was said, the defamatory nature of the statements, and how they

damaged the plaintiff should be sufficient to resist a TCPA motion to dismiss.” Id.



       Whisenhunt’s Pleading and Evidence

       Whisenhunt’s original petition contains the following factual allegations that

are relevant to this appeal. In paragraph 12 it states that, “On or about June 29,

2011 Defendant Parks alleged to members of FSS and third parties interested in

transacting business with Plaintiff that Whisenhunt was responsible for the loss of

surgical patients at FSS as a result of Whisenhunt’s unavailability for particular

surgeries, basing these accusations on fabricated information.” (C.R. 4-5)

Paragraph 14 states, “Additionally, upon information and belief, Defendants Parks

and Lippincott published certain defamatory and disparaging remarks to persons

within FSS and third persons interested in business partnership with Whisenhunt.

Defendants falsely accused Whisenhunt of sexually harassing the facility’s nurses,

of fraudulent behavior, and of incompetence as an anesthetist, going so far as to

file false allegations against Whisenhunt with the Texas State Board of Nursing”

(C.R. 5)




Appellees’ and Cross-Appellants’ Brief on Remand – Page 9
       In response to the motion to dismiss, Whisenhunt filed a written response

with two exhibits attached, A and B. (C.R. 26) Exhibit A purports to be a copy of

an email string between Matt Lippincott and other individuals along with

attachments to those emails. (C.R. 39 and Appendix 3) Exhibit B is an affidavit

signed by Gary Boyd, M.D. (C.R. 46 and Appendix 3) Importantly, no affidavit of

Whisenhunt was offered. Neither of the exhibits that were offered establishes by

clear and specific evidence a prima facie case for each essential element of

Whisenhunt’s causes of action.

         In Exhibit A there are what appear to be three emails from Lippincott to

Joe Zasa, Brenda Myers and Reta Turner and an attachment to one of the emails.

(C.R. 39-45 and Appendix 3) There is no mention of Parks in Exhibit A and no

indication that he was involved in either the emails or the attachment. (C.R. 39-45

and Appendix 3) The first email, dated May 29, 2012 at 12:44 p.m. does not

mention Mr. Whisenhunt’s name. (C.R. 41 and Appendix 3) The email mentions

“HR reports” that Lippincott has collected. (C.R. 41 and Appendix 3) In response,

on May 29, 2012 at 2:51 p.m. Joe Zasa emails to Lippincott that “Reta Turner

handles this.” (C.R. 40 and Appendix 3) Lippincott then responds later the same

day with an email asking if he should forward a “high-level summary” to Reta to

which Zasa responds “yes.” (C.R. 40 and Appendix 3)




Appellees’ and Cross-Appellants’ Brief on Remand – Page 10
       The last email in Exhibit A is dated May 30, 2012 at 12:01 p.m. and is from

Lippincott to Turner. (C.R. 40 and Appendix 3) It purports to attach a summary of

reports. (C.R. 40 and Appendix 3) The attachment to the emails states that it

“summarizes some, but not all of the information from reports that I have

received.” (C.R. 42 and Appendix 3) It is made clear throughout the summary that

Lippincott is merely passing along information and allegations provided to him by

other persons. (C.R. 42-45 and Appendix 3) For example, in the third paragraph of

the summary Lippincott states, “Most recently multiple departing employees have

made the following statements to me . . .” (C.R. 42 and Appendix 3) He later refers

to “other reports on file.” (C.R. 42 and Appendix 3) The incident reporting forms

mentioned in this portion of the summary mention Mr. Whisenhunt by name. (C.R.

42 and Appendix 3) The remainder of the summary is just that – a summary of

reports made by other people. (C.R. 42-45 and Appendix 3)

       There is no supporting evidence, such as affidavits, to establish the context

of the emails. Nor is there any evidence to support any claim that any statement

made in the emails or attachment is false.

       Exhibit B is the affidavit of Gary Boyd, M.D. (C.R. 46-48 and Appendix 3)

It specifically mentions Whisenhunt in only three of the eleven paragraphs. (C.R.

46-48 and Appendix 3) The affidavit states in paragraph 8 that, “Prior to the

Termination Date, neither FSS nor the Center had received any notices of any type


Appellees’ and Cross-Appellants’ Brief on Remand – Page 11
of formal or informal complaints from Parks or AMH related, directly or

indirectly, to the quality of the nursing services of any one or more of SNA,

Whisenhunt, Tait or Johnson in connection with nurse anesthesia services provided

by them to FSS and the Center.” (C.R. 47 and Appendix 3) In paragraph 10 the

affidavit states, “The undersigned acknowledges that FSS and the Center are very

happy with the quality of the nurse anesthesia services that have been provided by

SNA, Whisenhunt, Tait and Johnson to FSS and the Center.” (C.R. 47-4 and

Appendix 38) Finally, in paragraph 11, Boyd states, “Both FSS and the Center

consider each of SNA, Whisenhunt, Tait and Johnson to be very professional and

very capable in providing anesthesia services to all of the patients of the Center.”

(C.R. 48 and Appendix 3)

       Exhibit B does not specifically address the emails or attachments contained

in Exhibit A. (C.R. 46-48 and Appendix 3) There is nothing contained in Exhibit B

that can be construed as claiming that anything contained in Exhibit A is false.

(C.R. 46-48 and Appendix 3)




       There is no evidence of a prima facie case for tortious interference with
       business relationships

       According to Whisenhunt, the elements for tortious interference with

existing business relationships are: (1) an existing business relationship subject to


Appellees’ and Cross-Appellants’ Brief on Remand – Page 12
interference, (2) a willful and intentional act of interference with the relationship,

(3) that proximately caused the plaintiff’s injury, and (4) caused damages or loss.

(Appellant’s Brief, p. 20). Neither the factual allegations in the original petition

nor the Lippincott emails and Boyd email provide evidence of each of these

elements.

       The only business relationship mentioned in the evidence submitted by

Whisenhunt is the relationship between SafeNet and First Surgery Suites. (C.R. 47)

Therefore, that must be the relationship that Whisenhunt is alleging was tortiously

interfered with.

       Neither the Boyd affidavit nor the Lippincott emails contain any evidence

that either Parks or Lippincott willfully and intentionally interfered with any

business relationship between Whisenhunt and anyone else. There is no evidence

of any activity by Parks in either the emails or the Boyd affidavit. As to Lippincott

the only potential evidence is the email string in which Lippincott relays

complaints made about Whisenhunt by others to Reta Turner. (C.R. 40-45) But

there is no indication that those emails were sent in an effort to interfere with

Whisenhunt’s relationship with FSS. Whisenhunt alleges in his brief that the

statements made in the Lippincott emails are false, but there is no evidence that




Appellees’ and Cross-Appellants’ Brief on Remand – Page 13
any statements in the emails are false3. The only mention of intent in the original

petition is a bare allegation of intentional conduct. (C.R. 6)

         There is also the fact that Lippincott was working for FSS when he sent the

emails       –    his     email       address        was      matt.lippincott@firstsurgerysuites.com.

Whisenhunt acknowledges that Lippincott was acting on behalf of FSS.

(Appellant’s Brief, p. 1). A party can not tortiously interfere with its own contract.

Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995).                                        And generally, a

corporation’s agent cannot be held liable for interfering with his principal’s

contract. Id.        In order to prevail on a claim of tortious interference with contract

under these circumstances a plaintiff must show that the defendant acted in a

fashion so contrary to the corporation’s best interests in that his actions could only

have been motivated by personal interests4. Id. There is simply no evidence on this

point. The Lippincott emails can be construed as being sent in the interest of FSS

in order to insure that it is in compliance with state regulations with regard to

nursing. There is no evidence from anyone, let alone anyone with FSS, to indicate

that Lippincott’s sending of the emails was solely motivated by his personal

interests.

3
  Throughout this section of Whisenhunt’s appellant’s brief, he refers to allegations in his pleadings as evidence.
Appellant’s Brief, p. 21. As will be discussed in a later section of this brief, Whisenhunt’s pleadings should not be
considered as evidence.
4
  The Holloway case discusses the tort of tortious interference with contract, not tortious interference with business
relationships. But the premise in Holloway that an agent cannot, in most cases, interfere with his company’s
contract, was extended to the tort of tortious interference with prospective business relationships in Morgan Stanley
& Co. v. Texas Oil Company, 958 S.W.2d 178 (Tex. 1998). It is, therefore, assumed, that if Texas recognizes the
tort of tortious interference with business relationships it would apply this exception to it as well.

Appellees’ and Cross-Appellants’ Brief on Remand – Page 14
       Nor is there any evidence of a causal connection between any acts of

Lippincott or Parks and any damage to Whisenhunt. The only evidence of the

current state of Whisenhunt’s relationship with FSS is found in paragraphs 10 and

11 of the Boyd affidavit in which Boyd states that FSS is “very happy with the

quality of nurse anesthesia services that have been provided by … Whisenhunt”

and that FSS considers Whisenhunt “very professional and very capable in

providing nurse anesthesia services[.] (C.R. 47-48).         This hardly amounts to

evidence of proximate cause and, in fact, could be construed as the opposite.

       Finally, there is no specific allegation or any evidence of any damage to

Whisenhunt. Paragraph 21 of the original petition merely makes a conclusory

statement that, “Defendants’ intentional conduct has and will continue to cause

significant injuries and damages to Plaintiff, including but not limited to loss of

good will, loss of renewal and prospective business, loss of income and profits, and

loss or permanent injury to the value of Whisenhunt’s business reputation, all to

the irrevocable detriment of Plaintiff.” (C.R. 6) Also, and as stated in the previous

paragraph, Boyd’s affidavit indicates that the relationship between Whisenhunt and

FSS is in good condition.            There is no statement concerning any damage to

Whisenhunt in the Boyd affidavit. Likewise, there is no statement of any sort in

the Lippincott emails about damage to Whisenhunt.

       Because Whisenhunt presented no specific pleading and no evidence as to at


Appellees’ and Cross-Appellants’ Brief on Remand – Page 15
least three of the four elements of his claim for tortious interference with business

relationships, he failed to meet his burden pursuant to Section 27.005(c) of the

TCPA. Therefore, Judge Smith’s dismissal of that claim should be affirmed.




       There is no specific allegation or evidence of a prima facie case for
       tortious interference with prospective business relationships

       The elements of a claim for tortious interference with prospective business

relationships are similar to those for a claim of tortious interference with business

relationships. To prevail on such a claim a plaintiff must prove (1) there was a

reasonable probability that the Plaintiff would have entered into a business

relationship with a third person; (2) the defendant intentionally interfered with the

relationship; (3) the defendant’s conduct was independently tortious or unlawful;

(4) the interference proximately caused the plaintiff’s injury; and (5) the plaintiff

suffered actual damage or loss. Plotkin v. Joekel, 304 S.W.3d 455, 487 (Tex.

App.—Houston [1st Dist.] 2009, no pet.).

       Whisenhunt offers no evidence of any probability of entering into a business

relationship with a third person. There is no affidavit of a potential third person

business associate or even an affidavit from Whisenhunt himself that gives the

basic details of such a potential relationship.

       As with his claim for tortious interference with business relationships,


Appellees’ and Cross-Appellants’ Brief on Remand – Page 16
Whisenhunt has offered no evidence of any tortious interference with prospective

business relationships by either Parks or Lippincott. There is no evidence of any

activity by Parks and there is no evidence that the emails sent by Lippincott were

independently tortious. There is no evidence in the record of a causal connection

between anything done by Parks or Lippincott and the loss of a prospective

business relationship by Whisenhunt. Nor is there any evidence of any damage to

Whisenhunt caused by anything.

       Whisenhunt’s original petition is likewise lacking in any detail regarding

what specific potential business relationships, if any, were damaged or destroyed.

(C.R. 7).      There is no mention of any specific person or entity with whom

Whisenhunt is alleging to have been forming a business relationship with. (C.R. 7)

       Because Whisenhunt presented no specific pleading nor any evidence as to

any of the five elements of his claim for tortious interference with prospective

business relationships, he failed to meet his burden pursuant to Section 27.005(c)

of the TCPA. Therefore, Judge Smith’s dismissal of that claim should be affirmed.




       There is no evidence of a prima facie case for conspiracy to interfere
       with Whisenhunt’s business relationship

       In order to establish a conspiracy claim a plaintiff must prove (1) The

defendant was a member of a combination of two or more persons; (2) the object

Appellees’ and Cross-Appellants’ Brief on Remand – Page 17
of the combination was to accomplish (a) an unlawful purpose; or (b) a lawful

purpose by unlawful means; (3) The members had a meeting of the minds on the

object or course of action; (4) One of the members committed an unlawful, overt

act to further the object or course of action; and (5) the plaintiff suffered injury as a

proximate result of the wrongful act. Chon Tri v. J.T.T., 162 S.W.3d 552, 556

(Tex. 2005). Whisenhunt has failed to present any evidence on any one of the five

elements.

       The only evidence Whisenhunt offers for the first element – that there are

two persons – is a reference to his original petition. Appellee’s Brief, p. 23. The

original petition itself, at paragraphs 26 through 29, is merely a recitation of the

elements of the claim for conspiracy. (C.R. 7-8) As the Supreme Court stated in

the Lipsky opinion, this is not enough to satisfy a plaintiff’s burden in responding

to a motion to dismiss under the TCPA. Also, and as stated above, there is no

evidence whatsoever regarding Parks. The only evidence as to Lippincott is the

email string, and none of the emails is sent to Parks or mentions Parks. Therefore,

there is no evidence for the first element of conspiracy.

       Because there is no evidence of a “combination of two or more persons”

there is no evidence of any “object” of that combination. Likewise, and as stated

above, there is no evidence in either the Boyd affidavit or the Lippincott emails of

any unlawful purpose or unlawful means. There is no evidence of any “meeting of


Appellees’ and Cross-Appellants’ Brief on Remand – Page 18
the minds” between Parks and Lippincott. Finally, as with all of Lippincott’s

causes of action, there is no evidence of any injury or damage to him. As stated

above, the only evidence of any business relationship is between Whisenhunt and

FSS. Boyd’s affidavit establishes that relationship to be undamaged. (C.R. 46-48).

       Because Whisenhunt presented no evidence as to any of the five elements of

his claim for conspiracy to interfere with business relationships, he failed to meet

his burden pursuant to Section 27.005(c) of the TCPA. Therefore, Judge Smith’s

dismissal of that claim should be affirmed.



There is Insufficient Detail and No Evidence of a Defamation Claim

       To maintain a defamation cause of action against Lippincott and Parks,

Whisenhunt is required to prove, at a minimum: (1) the publication of a false

statement of fact to a third party, (2) that was defamatory concerning the plaintiff,

and (3) that Lippincott and Parks acted negligently. In re Lipsky at *11, citing

WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).            To         be

actionable, a statement must assert an objectively verifiable fact. Main v. Royall,

348 S.W.3d 381, 389 (Tex. App.—Dallas 2011, no pet.).

       Whisenhunt’s original petition does not adequately establish the facts of

when, where, and what was said, the defamatory nature of the statements, and how

they damaged him, as required by the Supreme Court in the Lipsky opinion. The


Appellees’ and Cross-Appellants’ Brief on Remand – Page 19
allegation contained in paragraph 12 of the petition does not describe specifically

what was said, to whom it was said, where it was said, how it was false and how it

damaged Whisenhunt. (C.R. 4-5) Similarly, the factual allegations in paragraph 14

of the petition fail to describe specifically what was communicated, to whom it

was communicated, when it was communicated, how it was false and how

Whisenhunt was damaged by it. (C.R. 5)

       There is no evidence in Exhibits A and B to Whisenhunt’s response to the

motion to dismiss that anything communicated by Parks or Lippincott was false.

(C.R. 35-48 and Appendix 3)                     First, there is no evidence of anything

communicated by Parks. (C.R. 35-48 and Appendix 3) Second, there are no

statements of fact made by Lippincott in Exhibit A. (C.R. 35-45 and Appendix 3)

He is clearly just passing along statements and reports made by others for the

purpose of having others determine if further action should be taken. (C.R. 35-45

and Appendix 3) Third, there is no evidence in either Exhibit A or Exhibit B that

Lippincott falsely or inaccurately reported the allegations. (C.R. 35-48 and

Appendix 3) Fourth, there is no evidence in Exhibit B that anything stated in

Exhibit A is false. (C.R. 46-48 and Appendix 3) Because there is no evidence of

the falsity of anything stated in Exhibit A, Whisenhunt has failed to make a prima

facie case by clear and specific evidence of each of the essential elements of his




Appellees’ and Cross-Appellants’ Brief on Remand – Page 20
defamation claim. Therefore, it should have been dismissed along with the rest of

his claims.

        Neither the factual allegations in Whisenhunt’s petition nor the evidence

attached to his response to the motion to dismiss amount to “clear and specific

evidence” as required by the TCPA. Neither the petition nor the evidence attached

to the response to the motion to dismiss “explicit” or “relate to a particular named

thing” as required by the Supreme Court in the Lipsky opinion.



Pleadings Should not be Considered as Evidence

        As stated above, the Texas Supreme Court in its opinion on this case

referred this Court to its opinion in In re Lipsky with regard to the determination as

to whether Whisenhunt had met his burden of clear and specific evidence in

responding to the motion to dismiss under the TCPA. As explained above, the

Supreme Court discussed in Lipsky the level of detail required in a pleading subject

to dismissal under the TCPA. However, it did not explicitly hold that pleadings

can be considered as “evidence” in the determination of whether a plaintiff has met

its burden in responding to a motion to dismiss5.



5
  As has been previously briefed by Lippincott and Parks in this court, there is longstanding Texas legal precedent
for thenotion that Pleadings are not competent evidence, even if sworn or verified. Laidlaw Waste Systems v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995), citing Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex.
1971). The discussion in the previous sections assume that the pleadings may be considered in determining whether
a plaintiff has met its burden in responding to a motion to dismiss under the TCPA, but that may not be the case.

Appellees’ and Cross-Appellants’ Brief on Remand – Page 21
       In fact, the Supreme Court’s discussion of the information that it considered

in determining whether the various motions to dismiss should be granted focused

on actual evidence, not pleadings. The court considered the affidavit of Range’s

senior vice president regarding damages. In re Lipsky at *10-11.               The court

considered nine specific published statements relied upon by Range in support of

its defamation claim. In re Lipsky at *11-12.                The court also discussed and

considered reports issued by the Environmental Protection Agency and Texas

Railroad Commission. In re Lipsky at *11.

       There is no indication that the Supreme Court considered only Range’s

factual allegations in its pleading in determining whether it had met its burden in

responding to the motion to dismiss. Likewise, other courts that have recently

considered the same issue have focused on evidence as opposed to pleadings.

       In Bilbrey v. Williams, No. 02-13-00332-CV, 2015 Tex. App. LEXIS 2359

(Tex. App.—Fort Worth 2015, no writ) Williams sued Bilbrey and others for

statements that were made about Williams concerning his conduct at a little league

baseball game. The defendants filed motions to dismiss pursuant to the TCPA

which the trial court denied. Williams responded attaching multiple affidavits and

included specific recitations of the oral and written statements about which he was

complaining. Bilbrey, at *7.          Despite evidence that was much more detailed and

specific than that supplied by Whisenhunt in this lawsuit, the court of appeals held


Appellees’ and Cross-Appellants’ Brief on Remand – Page 22
that Williams had not met his burden of “clear and specific evidence” under the

TCPA and ordered that his claims be dismissed. Bilbrey, at *11.

       In Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014, no writ)

Cruz sued Van Sickle and others for libel. As with the other cases discussed in the

foregoing paragraphs, the plaintiff, Cruz, complained about a specific and definite

statement that was published about him. The statement was published in an online

report and stated as follows: “Baltasar Cruz is another primary candidate from

2010 who attempted to knock out former State Representative Dale Tillery who is

now District Judge of the 134th Judicial District. Baltasar also has the distinction

of being thrown out three times, finally by the police, of an Elizabeth Edwards

book signing event in Dallas several years ago.” Cruz, 452 S.W.3d at 510.

Because Cruz was suing a media defendant he was required to prove the element

of actual malice. He pled actual malice, but the court held that his response

included “no evidence that the statement of which he complains was published

with actual malice[.]” In other words, the court in Cruz found that bare pleadings

alone were insufficient and held that dismissal under the TCPA is proper when

there is no evidence to support a required element of a plaintiff’s cause of action,

even when that element has been pleaded.

       And in Serafine v. Blunt, No. 03-12-00726-CV, 2015 Tex. App. LEXIS

4517 (Tex. App.—Austin 2015, no writ) the Austin court of appeals found that a


Appellees’ and Cross-Appellants’ Brief on Remand – Page 23
plaintiff’s affidavit in response to a TCPA motion to dismiss contained insufficient

detail to meet the statute’s burden of proof. Serafine sued the Blunts over a

property dispute and the Blunts counterclaimed for tortious interference with their

contract with a drainage and foundation company. Serafine filed a motion to

dismiss the Blunts’ counterclaim under the TCPA which the trial court denied.

       In support of their response to the motion to dismiss, the Blunts supplied the

affidavit of Alexander Blunt as well as his live testimony at the hearing. Mr. Blunt

testified to an agreement with Austin Drainage but he did not attach a copy of the

contract or supply any specific terms of the contract. The Austin Court of Appeals

held that “Mr. Blunt’s testimony was not clear and specific enough to support a

rational inference that a valid contract existed between the parties.” Serafine, at *6.

The court also held that the Blunts’ evidence was insufficient to establish a breach

of the contract. Id. Finally, the court of appeals held that the Blunts’ evidence was

insufficient to establish the chain of title and intent necessary to establish their

fraudulent-lien counterclaim. Serafine at *7. Presumably the Blunts adequately

pled the necessary elements of their causes of action, but because they did not

supply clear and specific evidence of them in response to the motion to dismiss, the

court of appeals reversed the trial court and dismissed their counterclaims.




Appellees’ and Cross-Appellants’ Brief on Remand – Page 24
                                         CONCLUSION

       Whisenhunt has failed to meet his burden of clear and specific evidence of

each element of his claim. The trial court therefore erred when she failed to

dismiss Whisenhunt’s claims in their entirety and when she failed to impose a

sanction against him as required by the TCPA.



                                             PRAYER

       FOR THE FOREGOING REASONS, Appellees and Cross-Appellants pray

that this Court affirm the trial court’s dismissal of Whisenhunt’s tortious

interference and conspiracy claims but reverse her failure to dismiss his defamation

claim. Appellees and Cross-Appellants also respectfully request that this Court

reverse Judge Smith’s failure to impose the mandatory sanction against

Whisenhunt and remand this case to the trial court for the purpose of allowing the

court to consider evidence regarding the proper imposition of attorney’s fees, costs

and sanctions.




Appellees’ and Cross-Appellants’ Brief on Remand – Page 25
                                               Respectfully submitted,



                                               _/s/_Jon Smith___________
                                               Jon M. Smith
                                               State Bar No. 18630750
                                               3305 Northland Drive
                                               Suite 500
                                               Austin, Texas 78731
                                               Telephone: (512) 371-1006
                                               Facsimile: (512) 476-6685
                                               jon@jonmichaelsmith.com


                                               ATTORNEY FOR CROSS-APPELLANTS



                           CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), to the extent
applicable, I certify that this brief contains 6017 words.



                                               _/s/_Jon Smith___________
                                               Jon Michael Smith




Appellees’ and Cross-Appellants’ Brief on Remand – Page 26
                               CERTIFICATE OF SERVICE

      I, Jon Michael Smith, do hereby certify that a true and correct copy of the
foregoing document was delivered to all attorneys of record as listed below via
regular mail on July 2, 2015.

Alan E. Brown
Boyd & Brown, P.C.
1215 Pruitt Place
Tyler, Texas 75703

Farbod Farnia
McCathern, L.L.P.
Regency Plaza
3710 Rawlins, Ste. 1600
Dallas, Texas 75219




                                               _/s/_Jon Smith___________
                                               Jon Michael Smith




Appellees’ and Cross-Appellants’ Brief on Remand – Page 27
