Warren Whisenhunt v. Matthew Lippincott and Creg Parks, 474 S.W.3d 30

Background

Warren Whisenhunt, a CRNA and SafeNET partner, sued FSS administrators Matthew Lippincott and Creg Parks for defamation, tortious interference (existing and prospective business relations), and civil conspiracy based on alleged disparaging communications and efforts to replace SafeNET as FSS’s anesthesiology provider.
Defendants moved to dismiss under the Texas Citizens Participation Act (TCPA), which stays discovery and shifts to the plaintiff the burden to establish each claim by "clear and specific evidence" to avoid dismissal and fee-shifting.
The trial court dismissed Whisenhunt’s tortious-interference and conspiracy claims for failure to make a prima facie showing, but allowed the defamation claim to proceed; it awarded attorney fees to defendants for the dismissed claims.
On appeal Whisenhunt challenged: (1) TCPA’s constitutionality under the Texas open-courts provision; (2) denial of his request for limited discovery; (3) applicability of the TCPA commercial-speech exemption; and (4) sufficiency of his prima facie showing on dismissed claims. Defendants cross-appealed the denial of dismissal of the defamation claim and sought sanctions.
The court held that Whisenhunt waived the open-courts and limited-discovery complaints, the commercial-speech exception did not apply, and Whisenhunt failed to present clear and specific evidence of damages or other required elements for tortious interference and conspiracy; the cross-appeal by defendants was dismissed as untimely.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the TCPA violate Texas open-courts clause?	Whisenhunt: TCPA denies access to courts, violates Art. I §13.	Lippincott/Parks: TCPA is constitutional protection for speech.	Waived on appeal—Whisenhunt did not raise the constitutional challenge in trial court; issue not preserved.
Did trial court err in denying limited discovery under the TCPA stay?	Whisenhunt: needed limited discovery (good cause) to prove damages and prima facie case; moved at hearing.	Defendants: discovery stay applies; no timely showing of good cause.	Waived/untimely—request made at the hearing and no continuance or ruling pursued; error not preserved.
Does TCPA’s commercial-speech exception (Sec. 27.010(b)) apply?	Whisenhunt: defendants were primarily engaged in selling services (FSS/AMH) and communications arose from commercial transactions.	Defendants: communications protected speech; not made to promote defendants’ own goods/services.	No—the record does not show defendants were primarily sellers of the goods/services at issue nor that statements were made to secure sales of defendants’ services; exception does not apply.
Did Whisenhunt prove by clear and specific evidence a prima facie case for tortious interference and conspiracy?	Whisenhunt: pleadings alleged defamatory statements, lost business, loss of goodwill and prospective relationships; claimed damages above $50,000.	Defendants: pleadings are conclusory; no clear and specific evidence of actual damages or proximate causation.	No—pleadings and affidavit evidence were conclusory; medical director’s affidavit favored defendants; Whisenhunt failed to present clear and specific evidence of damages or that surgeons declined relationships because of defendants. Dismissal affirmed.

Key Cases Cited

In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (explains TCPA framework and the "clear and specific evidence" prima facie requirement)
Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931 (Tex. 1991) (elements of tortious interference with contract)
Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711 (Tex. 2001) (elements for tortious interference with prospective relations and requirement of independently tortious act)
E.I. DuPont Nemours & Co. v. Robinson, 136 S.W.3d 218 (Tex. 2004) (definition of prima facie and minimum quantum of evidence)
Coastal Transp. Co. v. Crown Central Petroleum, 136 S.W.3d 227 (Tex. 2004) (conclusory affidavits insufficient to establish lost profits or damages under Texas law)
Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (conclusory allegations and opinions are not competent proof of damages)