Miller Weisbrod, L.L.P. v. Llamas-Soforo

511 S.W.3d 181

MILLER WEISBROD, L.L.P., Lawrence Lassiter, Individually, and Les Weisbrod, Individually, Appellants,

v.Jorge F. LLAMAS–SOFORO, M.D., Individually, and Jorge F. Llamas–Soforo, M.D., P.A., Appellees.

No. 08–12–00278–CV.

Court of Appeals of Texas, El Paso.

Nov. 25, 2014.

Jeff Whitfield, Kelly Hart & Hallman LLP, Fort Worth, TX, for Appellants.

Steven C. James, Attorney at Law, El Paso, TX, for Appellees.

Before RIVERA, J., Not Participating, RODRIGUEZ, J., and LARSEN, Senior Judge (Sitting by assignment).

OPINION

YVONNE T. RODRIGUEZ, Justice.

Three Appellants, Lawrence Lassiter, Les Weisbrod, and Miller Weisbrod, L.L.P. (the Law Firm) appeal the denial of their joint Motion to Dismiss ("the Motion"), pursuant to the Texas Citizens' Participation Act ("TCPA"), set forth in Chapter 27 of the Texas Civil Practice and Remedies Code § 27.001 et seq. The Motion was filed in response to a lawsuit brought by Jorge F. Llamas–Soforo. Appellants, Lassiter and Weisbrod assert the Texas Civil Practices and Remedies Code § 27.010(b) (West Supp.2014) does not apply to lawyers as lawyers are not "primarily engaged" in the business of selling services. Appellant, the Law Firm, contends the Motion was timely filed as to the Law Firm and the trial court erred in holding otherwise. For the reasons set out below, we affirm.

BACKGROUND

Jorge F. Llamas–Soforo ("Llamas") is an ophthalmologist, who resides and works in El Paso. Llamas treats medical conditions of the eye including Retinopathy of Prematurity ("ROP"), which affects the eyes of prematurely born infants. Dallas attorney Domingo Garcia and his law firm, Domingo Garcia, P.C. represented a number of Llamas' former patients as plaintiffs. Ultimately, Garcia referred them to the law firm, Miller Weisbrod, L.L.P. The Law Firm represented these parties in lawsuits against Llamas in Dallas County and El Paso County. Lawrence Lassiter is an attorney. Les Weisbrod is a partner with Miller Weisbrod and an attorney. The plaintiffs suffered from various levels of blindness which they alleged was the result of Llamas' improper diagnosis and/or treatment of premature babies with ROP.

In March of 2011, Appellants aired fifteen-second television commercials in El Paso regarding the cases against Llamas ("the Advertisement").¹ The purpose of the Advertisement was two-fold: (1) to locate potential clients with negligence claims against Llamas; and (2) to encourage others to come forward and reveal relevant information which would support prosecution of ongoing litigation against Llamas.

The commercials aired in English and Spanish, with narration stating:

Male Voice: If your child was treated by Dr. Jorge Llamas–Soforo for retinopathy of prematurity and their vision was damaged or they were left blind by treatment, please call the number on your screen. Your child may be entitled to compensation.

Female Voice: We're currently representing children who had bad results by Dr. Jorge Llamas Soforo. We can help you, too.

Seven lawsuits were eventually filed.

Garcia initially said his firm paid for the Advertisement, however, later he stated that the Law Firm had paid for it. The decision to air the Advertisement was made jointly by Weisbrod and Garcia. Weisbrod suggested the Advertisement should be aired. Lassiter conducted the legal research regarding the Advertisement before it was aired.

On March 15, 2011, shortly after the Advertisement was first aired, Llamas filed a lawsuit against Garcia alleging the Advertisement was "slanderous, defamatory and disparaging." On August 10, 2011, a First Amended Petition was filed which added the Law Firm as a defendant. On March 27, 2012, a Second Amended Petition was filed joining Lawrence Lassiter and Les Weisbrod, individually, as defendants. On May 31, 2012, Appellants filed a motion to dismiss pursuant to the TCPA, under Chapter 27 of the Texas Civil Practice & Remedies Code.

In June 2012, the trial court held a hearing, limiting it to two issues. The first was whether the Motion was timely filed by the Law Firm in accordance with the TCPA. Second, whether Lassiter and Weisbrod are entitled to protection under TCPA or if they were exempt under 27.010(b). Two weeks following the hearing, the trial court issued a written order denying the Motion. In the order, the trial court found the Law Firm had not timely filed their TCPA Motion. The trial court also ruled Weisbrod and Lassiter were not entitled to protection under the TCPA because the exemption set out in Section 27.010(b) applied. Appellants timely filed their notice of appeal within sixty days. See TEX.CIV.PRAC. & REM.CODE ANN. § 27.008(a) (West Supp.2014).

DISCUSSION

Appellants present two issues. Appellants, Lassiter and Weisbrod, assert the Texas Civil Practices and Remedies Code § 27.010(b) does not apply to lawyers as lawyers are not "primarily engaged" in the business of selling services. Appellant, the Law Firm, argues the Motion to Dismiss was timely filed as to the Law Firm and the trial court erred in holding otherwise.

Llamas, on the other hand, questions whether the Court of Appeals has jurisdiction over this appeal arguing the TCPA does not authorize this type of interlocutory appeal.² We will address the jurisdictional issue first.

Standard of Review

A question of statutory construction is a legal one that we review de novo. In re ReadyOne Industries, Inc., 394 S.W.3d 680, 684 (Tex.App.-El Paso 2012, orig. proceeding), citing Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009). When construing statutes, we ascertain and give effect to the legislature's intent. In re ReadyOne Industries, Inc., 394 S.W.3d at 684. We do so by looking first and foremost at the statutory text, reading the words and phrases in context and construing them according to the rules of grammar and common usage. Summers, 282 S.W.3d at 437 ; Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex.2006) ; TEX.GOV'T CODE ANN. § 311.011 (West 2013). Where statutory text is clear, it is determinative of legislative intent unless the plain meaning of the statute's text would produce an absurd result. Summers, 282 S.W.3d at 437. "The plain meaning of the text is the best expression of legislative intent unless a different meaning is apparent from the context or the plain meaning leads to absurd or nonsensical results." Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex.2011) ; Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex.2010).

Our primary objective in construing any statute is to determine the legislature's intent in enacting the particular provision, and to give that provision its intended effect. Emeritus Corporation v. Blanco, 355 S.W.3d 270, 276 (Tex.App.-El Paso 2011, pet. denied). We must interpret the statute according to the plain meaning of the language used, and must read the statute as a whole without giving effect to certain provisions at the expense of others. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003) ; Emeritus Corp., 355 S.W.3d at 276. Each word, phrase, or expression must be read as if it were deliberately chosen, and we will presume that words excluded from a provision were excluded purposefully. Emeritus Corp., 355 S.W.3d at 276 ; Gables Realty Ltd. Partnership v. Travis Central Appraisal District, 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). Our analysis of the statutory text is also informed by the presumptions "the entire statute is intended to be effective" and "a just and reasonable result is intended." In re S.S.A., 319 S.W.3d 796, 799 (Tex.App.-El Paso 2010, no pet.), quoting TEX.GOV'T CODE ANN. § 311.021(2) & (3) (West 2013). We are also instructed to consider: (1) the object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; and (4) consequences of a particular construction. Id., quoting TEX. GOV'T CODE ANN. § 311.023(1), (2), (3), (5).

We may consider TCPA's language and purpose in construing the statute. The Legislature explained its purpose in enacting the TCPA was "to encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury." TEX.CIV.PRAC. & REM.CODE ANN. § 27.002 (West Supp.2014). We are also directed to "construe liberally to effectuate its purpose and intent fully." TEX.CIV.PRAC. & REM.CODE ANN. § 27.011(b).

Jurisdiction of Interlocutory Appeal

Llamas asserts the plain language of the TCPA does not authorize an interlocutory appeal of a trial court's order written order granting or denying a motion to dismiss. His position is an interlocutory appeal is only permitted if the trial court fails to rule on a TCPA motion to dismiss. He directs this Court to Jennings v. WallBuilder Presentations, Inc., ex rel. Barton, 378 S.W.3d 519 (Tex.App.-Fort Worth 2012, pet. denied) in support of his position that a plain reading of the statute does not explicitly allow for an interlocutory appeal from a written order, only from a trial court's failure to rule and, thus, deprives this court of jurisdiction.

The purpose of the TCPA, is to:

[E]ncourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time protect the rights of a person to file meritorious lawsuits for demonstrable injury.

TEX.CIV.PRAC. & REM.CODE ANN. § 27.002 (West Supp.2014).

The TCPA is considered an anti-SLAPP law, designed to provide defendants in so-called SLAPP ("Strategic Lawsuits Against Public Participation") lawsuits the ability to have these suits dismissed early on. House Research Org., Bill Analysis, Tex. H.B. 2973, 82nd Leg, R.S. (2011); Senate Research Ctr., Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. (2011). See, e.g. Jenning...