Warren Whisenhunt v. Matthew Lippincott and Creg Parks, 06-13-00051-CV

Background

Whisenhunt (a CRNA and SafeNET VP) sued Lippincott and Parks for defamation, tortious interference (existing and prospective), and conspiracy based on communications about Whisenhunt to FSS and third parties.
Lippincott and Parks moved to dismiss under the Texas Citizens Participation Act (TCPA). The trial court granted dismissal as to the interference and conspiracy claims but denied dismissal of the defamation claim; it awarded limited attorneys’ fees but no statutory sanction.
This Court initially held the TCPA did not apply to private speech, but the Texas Supreme Court reversed, ruling the TCPA applied and remanded for this Court to determine whether Whisenhunt met the TCPA’s prima facie evidence requirement in light of In re Lipsky.
On remand, appellees (Lippincott and Parks) argued that Whisenhunt’s petition and the evidence he produced (an email chain from Lippincott and an affidavit by Dr. Gary Boyd) failed to provide the “clear and specific evidence” required by Lipsky to support each essential element of his claims.
Appellees also argued pleadings should not be treated as evidence and that the trial court erred by not imposing the TCPA’s mandatory sanction when it partially denied dismissal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does the TCPA apply to the communications at issue?	Whisenhunt contended defendants’ communications were not protected private speech outside the TCPA.	Lippincott and Parks argued the TCPA applies to their communications and thus dismissal is authorized.	Texas Supreme Court: TCPA applies; case remanded to evaluate prima facie proof under Lipsky.
Did Whisenhunt meet the TCPA’s prima facie burden (clear and specific evidence for each element)?	Whisenhunt relied on his petition plus three emails and Boyd’s affidavit to show falsity, publication, causation, and damages.	Appellees argued those materials lack detail: emails relay third‑party reports (not factual assertions by defendants), Boyd’s affidavit does not show falsity, causation, or damages, and no evidence links Parks to the communications.	On remand issue: applying In re Lipsky, appellees argue dismissal is warranted because plaintiff did not present clear and specific evidence; the Supreme Court directed the court to apply Lipsky’s standard.
Can pleadings be treated as evidence to meet the TCPA burden?	Whisenhunt referenced pleadings to support elements.	Appellees maintained longstanding Texas law treats pleadings as not competent evidence and Lipsky emphasized actual evidence.	Appellees urged the court not to treat mere pleadings as evidence; courts cited in remand analysis generally focus on evidentiary submissions.
Was the trial court required to impose TCPA sanctions when dismissal was partly denied?	Whisenhunt implicitly resisted a full sanction argument.	Appellees argued the TCPA requires mandatory sanctions when a TCPA motion is improperly denied and the trial court erred by not imposing them.	Appellees asked the remand court to reverse the denial as to defamation and remand to set attorney’s fees, costs and sanctions; resolution depends on whether dismissal is ultimately required.

Key Cases Cited

Avila v. Larrea, 394 S.W.3d 646 (Tex. App.—Dallas 2013) (discussing standard of review and plaintiff’s burden under TCPA)
Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010) (statutory construction reviewed de novo)
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (elements of defamation)
Holloway v. Skinner, 898 S.W.2d 793 (Tex. 1995) (agent/principal limitations on tortious interference claims)
Morgan Stanley & Co. v. Texas Oil Co., 958 S.W.2d 178 (Tex. 1998) (related principles on interference claims)
Chon Tri v. J.T.T., 162 S.W.3d 552 (Tex. 2005) (elements of civil conspiracy)
Cruz v. Van Sickle, 452 S.W.3d 503 (Tex. App.—Dallas 2014) (insufficient evidence to prove malice; pleadings alone inadequate under TCPA contexts)
Plotkin v. Joekel, 304 S.W.3d 455 (Tex. App.—Houston [1st Dist.] 2009) (elements of interference with prospective relations)
Main v. Royall, 348 S.W.3d 381 (Tex. App.—Dallas 2011) (statements must be verifiable facts to be actionable)