Dr. Jesse Smith, M.D. v. Crestview NuV, LLC, on Its Own Behalf and Derivatively on Behalf of NuVivo Bioscience Solutions, LLC.
565 S.W.3d 793
Tex. App.2018Background
- Crestview invested $500,000 in NuVivo Bioscience Solutions (NBS) based on representations by Mary Armstrong about product development, clinical involvement, and imminent sales; later discovered significant personal spending and no product sales.
- Armstrong alleged Dr. Jesse Smith served as NBS medical consultant and had conducted clandestine injections/testing of the product; Crestview sought relief against Armstrong and later added Smith under the Texas Securities Act (TSA) as an aider under art. 581-33(F)(2).
- Crestview’s amended petition pleaded aider liability based on Smith’s actions (conducting testing, failing to keep medical records, violating medical-board rules) rather than any alleged statements or disclosures by Smith.
- Smith filed a TCPA (anti‑SLAPP) motion to dismiss, arguing the claim targeted his rights to free speech and association because it implicated communications and common-interest association with Armstrong; the trial court denied by operation of law and then formally.
- On appeal Smith argued (1) he met the TCPA movant burden by showing Crestview’s claim involved protected communications/association, and (2) Crestview failed to produce prima facie evidence of aider liability. The court reviewed de novo and focused on whether the pleaded claim alleged a “communication.”
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Crestview’s TSA aider claim is based on a protected "communication" under the TCPA | Crestview: Claim is fact-based conduct (aider acts), not a communication; TCPA does not apply. | Smith: The aider claim necessarily rests on communications/consulting about the product and association with Armstrong, so TCPA applies. | Held: TCPA inapplicable — Crestview pleaded only conduct (testing, recordkeeping violations), not the making/submitting of statements or documents. |
| Whether Crestview failed to present prima-facie evidence of aider liability under the TSA (if TCPA applied) | Crestview: Allegations suffice to state aider liability elements against Smith. | Smith: Even if TCPA applies, Crestview cannot meet its burden to prove each aider-element. | Held: Court did not reach merits of this issue because TCPA did not apply; second issue left undecided. |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (preponderance standard and TCPA burden-shifting framework)
- Hersch v. Tatum, 526 S.W.3d 462 (Tex. 2017) (pleadings are best evidence of the nature of a claim in TCPA context)
- Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890 (Tex. 2018) (broad definition of "communication" under TCPA)
- Lippincott v. Whisenhunt, 462 S.W.3d 507 (Tex. 2015) (statutory interpretation of TCPA definitions)
- Elite Auto Body LLC v. Autocraft Bodywerks, 520 S.W.3d 191 (Tex. App.—Austin 2017) (trade-secret claims subject to TCPA only when they allege disclosure/communication)