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State v. HRC Medical Centers, Inc.

Court of Appeals of Tennessee, Nashville

August 23, 2019

STATE OF TENNESSEE EX REL. HERBERT H. SLATERY, III, ATTORNEY GENERAL AND REPORTER
v.
HRC MEDICAL CENTERS, INC., ET AL.

          Session October 3, 2018

          Appeal from the Circuit Court for Davidson County No. 12C4047 Donald R. Ash, Senior Judge

         This is an action brought by the State of Tennessee pursuant to the Tennessee Consumer Protection Act, Tennessee Code Annotated section 47-18-101, et seq., and seeking judicial dissolution, pursuant to Tennessee Code Annotated section 48-24-301, of HRC Medical Centers, Inc., a for-profit corporation operating approximately 50 hormone replacement therapy centers. The State alleged, inter alia, that the corporation's advertising for its hormone replacement therapy was deceptive, and sought restitution for consumers. Also sued were the owners of HRC and their spouses; it is alleged that those defendants, as recipients of some of the assets of HRC, are personally liable for violations of the Uniform Fraudulent Transfer Act, Tennessee Code Annotated sections 66-3-305(a) and 66-3-306(a). The defendants filed motions to dismiss, for summary judgment, and to remand the case to the Division of Health Related Boards of the Tennessee Department of Health; all of the motions were denied. The State moved for summary judgment on the issue of liability under the Consumer Protection Act and, after the motion was granted, on the issue of damages. In granting the second motion, the trial court entered an award of $18, 141, 750, based upon the median amount paid by consumers for the hormone therapy treatment. The defendants appeal, raising issues related to the trial court's denial of their motion for remand, motions to dismiss, and motions for summary judgment; they also appeal the grant of summary judgment to the State. Upon a thorough review of the record, we affirm the judgment.

         Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court for Davidson County Affirmed

          William Kennerly Burger, Murfreesboro, Tennessee; and Wendel J. W. O'Reilly, Brentwood, Tennessee; for the appellants, HRC Medical Centers, Inc.; Dan Hale, Don Hale, Bonnie Hale, and Dixie Hale.

          Herbert H. Slatery, III, Attorney General and Reporter; Andrée S. Blumstein, Solicitor General; Brant Harrell, Senior Counsel; and Carolyn U.Smith, Senior Counsel, for the appellees, State of Tennessee - Civil.

          Darryl G. Lowe, Knoxville, Tennessee, for the appellee, John C. McLemore. Dana Renee Helton, Knoxville, Tennessee, Pro Se.

          Richard H. Dinkins, J., delivered the opinion of the court, in which Frank G. Clement, Jr., P.J., M.S., and Andy D. Bennett, J., joined.

          OPINION

          RICHARD H. DINKINS, JUDGE

         Facts and Procedural History

         HRC Medical Centers, Inc., ("HRC") is a for-profit corporation operating approximately 50 centers where it offers a treatment known as bio-identical hormone replacement treatment ("BHRT"). The State of Tennessee filed suit against HRC, Dan Hale, and Don Hale[1] on October 8, 2012, alleging that the defendants' advertisements and marketing for BHRT violated the Tennessee Consumer Protection Act ("TCPA"), Tennessee Code Annotated section 47-18-104(a) and (b); the State also moved for an ex parte temporary restraining order, which the trial court granted on October 10, a temporary injunction, and the appointment of a pendente lite receiver, both of which the court granted on December 27, appointing John C. McLemore as receiver "over [HRC] and all of the tangible and intangible assets and property, both personal and real of defendant HRC Medical."

         On April 15, 2013, the State filed an amended complaint, adding numerous defendants, including Bonnie Hale and Dixie Hale, [2] and Dana Helton, in her capacity as Trustee of the Cardinal Revocable Trust, which had been formed by Dan Hale. On the same day, the State filed motions for a temporary restraining order and a temporary injunction, asking the trial court to freeze the assets of the added defendants, and a motion for appointment of a receiver, asking the trial court to appoint Mr. McLemore as receiver over the added defendants' assets. On April 26, the trial court issued the temporary restraining order and also appointed Mr. McLemore as receiver over the added defendants "and all of the tangible and intangible assets and property, both personal and real, of these defendants"; the court issued a temporary injunction against Bonnie Hale and Dixie Hale on August 20.

         The State amended the complaint a second time on October 31, 2013 (the "Complaint"); this complaint governs this appeal.[3] In count one of the Complaint, the State alleged that the Defendants had violated the TCPA, specifically Tennessee Code Annotated sections 47-18-104(a), (b)(5), (22), and (27). In count two, the State sought judicial dissolution of HRC pursuant to sections 48-24-301, et seq., of the Tennessee Business Corporation Act. In count three, the State alleged that Defendants had violated the Uniform Fraudulent Transfer Act, specifically Tennessee Code Annotated sections 66-3-305(a) and -306(a). The Complaint sought the following relief:

3. That this Court adjudge and decree that TCPA Defendants[4] have engaged in the aforementioned acts or practices which violate the Tennessee Consumer Protection Act of 1977.

4.That pursuant to Tenn. Code Ann. § 47-18-108(a)(1), (a)(4), and (a)(5), this Court temporarily and permanently enjoin and restrain TCPA Defendants from engaging in the aforementioned acts or practices which violate the Tennessee Consumer Protection Act of 1977.

5. That pursuant to Tenn. Code Ann. §47-18-108(b)(1), this Court make such orders or render such judgments as may be necessary to restore to any person who has suffered any ascertainable loss as defined in Tenn. Code Ann. § 47-18-102(1) including statutory interest and requiring that TCPA Defendants pay all costs of distributing and administering the same, including through the use of a receiver or third-party restitution administrator.

6. Excluding any amounts refunded to consumers, that this Court make such orders or render such judgments as may be necessary to disgorge the profits and ill-gotten gains TCPA Defendants realized by reason of the alleged violations of the TCPA.

7. That this Court adjudge and decree that TCPA Defendants pay civil penalties of not more than one thousand dollars ($1, 000.00) for each and every violation of the Tennessee Consumer Protection Act of 1977 to the State of Tennessee as provided by Tenn. Code Ann. § 47-18-108(b)(3).

8.That this Court enter judgment against TCPA Defendants and in favor of the State for the reasonable costs and expenses of the investigation and prosecution of Defendants' actions, including attorneys' fees and costs, expert and other witness fees, as provided by Tenn. Code Ann. § 47-18-108(a)(5) and (b)(4), and other state law.

9. That all of Defendant HRC Medical's, Defendant HRC Management Midwest's, and Defendant Bella Vita's contracts with consumers in Tennessee for BHRT and all of Midwest Restorative's, Bella Vita's, Legacy's, and BioLifecycle's renewal contracts with consumers in Tennessee be held void, unenforceable, and uncollectable.

10. That, pursuant to Tenn. Code Ann. § 47-18-108(b)(2), the court permanently revoke Defendant HRC Medical's incorporated status, Defendant HRC Management Midwest's ability to do business as a foreign limited liability company in Tennessee, and revoke Defendant Dan Hale's license to practice medicine as a doctor of osteopathy in the State of Tennessee.

11. That, pursuant to Tenn. Code Ann. § 48-24-301, the court judicially dissolve Defendant HRC Medical as a corporation, issue a decree of dissolution pursuant to Tenn. Code Ann. § 48-24-304(a), and then direct the winding up and liquidation of the corporation's business in accordance with state law.

12.That a receiver continue to be placed temporarily and permanently over Defendants HRC Medical, HRC Management Midwest, HRC Management, HRC Holdings, and the Cardinal Revocable Trust, to identify and marshal its assets and liabilities, to assume legal control over the entities, and to perform other tasks as set forth in the accompanying motion and proposed receivership order.

13. That a receiver continue to be placed temporarily over the personal assets of Defendants Don Hale, Dixie Hale individually and doing business as Southern Belle Consulting, Dan Hale, and Bonnie Hale to prevent asset dissipation, to identify and marshal their assets and liabilities, to perform other tasks as set forth in the accompanying motion and proposed receivership order, and to apply receivership assets towards any monetary judgment awarded to the State consistent with state law, including applicable personal exemptions.

14.That the transfers or obligations referenced above in paragraphs 814 to 1067 be voided under Term. Code Ann. § 66-3-308(a)(1).

15. That the Court continue its temporary injunction against Defendants Don Hale, Dan Hale, Dixie Hale, Bonnie Hale, HRC Medical, HRC Management Midwest, HRC Management, HRC Holdings, and the Cardinal Revocable Trust that prohibits further disposition of an asset transferred or other property and other relief as set forth in the accompanying motions and proposed receivership orders pursuant to Tenn. Code Ann. § 66-3-308(a)(3)(A), (B), and (C).

16.That the monetary, other assets, or other property that are found to have been transferred in violation of the UFTA be deemed to have been held in constructive trust for its rightful owner, including the HRC Medical receivership estate.

17. That a judgment be entered for the monetary, other assets, or other property that are found to have been transferred in violation of the UFTA with up to 10% prejudgment interest under Tenn. Code Ann. §§ 47-14-123 and 66-3-308(a)(3)(C).

18.That the monetary, other assets, or other property that are found to have been transferred in violation of the UFTA be returned to the HRC Medical receivership estate.

19.That, aside from any individual liability stemming from an individual's direct participation or control, the corporate statuses or statuses as limited liability companies for Defendants HRC Medical, HRC Management Midwest, Bella Vita, HRC Management, and HRC Holdings be disregarded for purposes of assigning liability to its members or shareholders for liability assigned to Defendants HRC Medical, HRC Management Midwest, Bella Vita.

         20. That the Cardinal Revocable Trust, which among other things:

was used as a mechanism for Defendant Dan Hale to fraudulently conceal his continued financial affiliation with Defendant HRC Medical;

was formed following inquiries from state regulatory agencies and news media;

is administered by Defendant Dan Hale's daughter; states that the Trust's spendthrift provisions do not apply to the Grantor;

gives Defendant Dan Hale the "absolute and uncontrolled right and power to act alone to take or omit to take any action with regard to sales, investments, retentions of assets, or any other matter or matters relating to the administration of the trust estate or the investment or reinvestment of property constituting the trust estate;"

and gives Defendant Dan Hale the right to revoke the trust agreement in its entirety during his lifetime, as well as the right to withdraw all or such part of the assets then constituting the trust estate and the right to amend, or modify the trust agreement;

be terminated, pursuant to Tenn. Code Ann. § 35-15-404, 35-15-410(a), and 35-15-505(a)(1) upon a finding that Defendant Dan Hale's purpose in forming the trust was to defraud creditors, and have its assets subject to any monetary liability obtained against Defendant Dan Hale.

         Separate answers to the Complaint were filed by Dan Hale and Bonnie Hale, individually and on behalf of HRC Medical Centers, Inc., and Don Hale and Dixie Hale. In due course, the parties engaged in extensive discovery and other pre-trial matters. One of those matters at issue on appeal is Defendants' Motion for Administrative Remand, which was filed on January 23, 2014, wherein the court was asked to have the action "remanded" to the Division of Health Related Boards of the Tennessee Department of Health ("Health Related Boards").[5] In due course, the State responded, and the motion was heard and denied.

         On December 18, 2014, the State filed a motion seeking partial summary judgment against HRC and Don Hale, Dan Hale, and Dixie Hale on the issue of those defendants' liability on the TCPA claims (the "Liability Motion."). In support of the motion, the State filed a Statement of Undisputed Material Facts, numerous discovery documents, and "papers, documents and/or electronically stored information received from" several media outlets. HRC and the Hale Defendants (Don, Dan, Bonnie, and Dixie) responded to the motion and Statement of Undisputed Material Facts, to which the State replied; HRC and the Hale Defendants filed a Sur-Reply and a Supplemental Reply.

         On May 1, 2015, HRC and the Hale Defendants filed a motion for summary judgment on the issue of liability. They argued that the State's evidence was insufficient to establish violations of the TCPA and that the State's attorneys did not fulfill their obligations under Tennessee Rule of Civil Procedure 11 in filing this action;[6] they supported the motion with numerous documents and a Statement of Undisputed Material Facts. The State filed a memorandum in response, accompanied by the affidavit of Dr. Ted Louis Anderson.

         Both motions were heard on June 3 and taken under advisement; on August 31, the court entered an order granting the State's motion in part and denying the motion of the Defendants.

         On March 2, 2017, the State moved for summary judgment on the issue of damages ("Damages Motion"), seeking "a consumer redress award of $18, 141, 750 to be lodged jointly and severally against Defendants HRC, Don Hale, Dan Hale, and Dixie Hale and a permanent injunction barring these Defendants from engaging in conduct the Court has already found to be unlawful," and a permanent injunction, enjoining HRC and the Hales from making certain representations about BHRT; the motion was supported by a Statement of Material Facts and multiple depositions.

         On March 16, 2017, HRC and the Hale Defendants moved for summary judgment on the issue of damages, arguing that the State could not prove the essential elements of its claim and seeking dismissal of all claims; specifically, they argued that (1) there was a lack of necessary expert proof, (2) they were not liable under the TCPA, and (3) the State had failed to mitigate damages, which precluded an award of damages. In support, they filed a Statement of Undisputed Material Facts; the State responded to the motion and Statement of Material Facts. The trial court heard argument on both motions and entered an order granting the State's motion and denying the Defendants' motion on July 17; the court entered judgment in the amount of $18, 141, 750 against HRC, Don Hale, Dan Hale and Dixie Hale, jointly and severally, and issued a permanent injunction barring those defendants "from engaging in conduct the Court has found unlawful." On December 7, the trial court entered an Agreed Order Directing the Entry of a Final Judgment on Certain Claims As To HRC, Dan Hale, Don Hale and Dixie Hale; the court certified the order as final in accordance with Tennessee Rule of Civil Procedure 54.02.[7], [8]

         Defendants appeal, stating numerous issues for our review, which we have restated as whether the court erred: in granting summary judgment to the State and awarding consumer restitution of $18, 141, 750 on the TCPA claim, and in denying Defendants' motion for summary judgment on that claim; in denying Defendants' motion to dismiss the TCPA claim for failure to comply with the pre-suit notice provisions of the Tennessee Healthcare Liability Act ("HCLA") and the TCPA; and in denying Defendants' motion to remand the case for consideration by Health Related Boards. Defendants also raise issues in regards to the timeliness and adequacy of the State's Rule 26 disclosures and the admissibility of the testimony of one of the State's expert witnesses, Dr. Ted Louis Anderson. We address the pre-suit notice and motion to remand issues first.

         Analysis

         I. Pre-Suit Notice Under the Health Care Liability Act

         HRC moved on two occasions to dismiss this action under Tennessee Rule of Civil Procedure 12.02, arguing that this is a health care liability action and that the State did not comply with the requirement of the HCLA, Tennessee Code Annotated 29-26-121(a)(1), that written notice of health care liability claims be sent to a health care provider sixty days before suit is filed; both motions were denied by the trial court.[9]HRC renews its argument on appeal. In reliance on the holding in Tucker v. Sierra Builders that the TCPA was enacted to provide "additional, supplementary state law remedies to consumers victimized by unfair or deceptive business acts or practices," the State argues that this action concerns deceptive business practices that violate the TCPA and is not a health care liability action. 180 S.W.3d 109, 115 (Tenn. Ct. App. 2005).

         This issue was raised by motion to dismiss for failure to state a claim for relief, filed pursuant to Tennessee Rule of Civil Procedure 12.02(6). The purpose of such a motion "is to test the sufficiency of the complaint." Gore v. Tenn. Dep't of Correction, 132 S.W.3d 369, 373 (Tenn. Ct. App. 2003) (quoting Willis v. Tenn. Dep't of Correction, 113 S.W.3d 706, 710 (Tenn. 2003)). In determining whether the pleadings state a claim upon which relief can be granted, only the legal sufficiency of the complaint is tested, not the strength of the plaintiff's proof. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997). We review the trial court's legal conclusions regarding the adequacy of the complaint de novo. Brown v. Tenn. Title Loans, Inc., 328 S.W.3d 850, 855 (Tenn. 2010); Stein, 945 S.W.2d at 716.

         The Complaint, spanning over 150 pages, set forth the nature of the action:

This civil law enforcement action is brought in the name of the State of Tennessee, in its sovereign capacity, by and through Robert E. Cooper, Jr., Attorney General and Reporter, pursuant to Tenn. Code Ann. § 47-18-108 of the Tennessee Consumer Protection Act of 1977, Tenn. Code Ann. § 47-18-101 et seq. to protect consumers and the integrity of the commercial marketplace in Tennessee. Further, pursuant to Tenn. Code Ann. § 48-24-301, the State seeks to judicially dissolve Defendant HRC Medical Centers, Inc. for transacting business in a persistently fraudulent manner.

         The factual allegations related generally to the types of medical treatments being performed by HRC and its related entities, and the advertising HRC employed; specifically, the State alleged that "Defendants advertise, sell, and administer a purportedly unique cocktail of 'bioidentical hormones." As to Don and Dan Hale, the Complaint made allegations related to their knowledge of the organizational structure and operations of HRC; their knowledge of hormones, hormone replacement therapy, and bio-identical hormone replacement therapy; and how HRC's bio-identical hormone replacement therapy was marketed, advertised, and sold.

         The Complaint set forth three causes of action. First, the State asserted that HRC had violated sections 47-18-104(a), (b)(5), (b)(8), (b)(22), and (b)(27)[10] of the TCPA by: engaging in various forms of deceptive advertising; making numerous express claims in its advertisement that either HRC knew to be false or HRC "made without adequate support to substantiate such claim at the time made"; using "fabricated quotes from purported studies about the purported benefits, efficacy, risks, and side effects of Defendant HRC Medical's BHRT"; not disclosing the risks of side effects or conveying the extent of the possible side effects of its BHRT treatment; using deceptive consumer testimonials in its advertising; and by accepting "advance payment from consumers through cash or financing and using a no refund provision . . . without "knowing whether [HRC]'s BHRT will be appropriate, or without knowing how the consumer will respond to the BHRT initially." The second and third causes of action were, respectively, for judicial dissolution pursuant to section 48-24-304[11] and for HRC's violation of the Uniform Fraudulent Transfer Act, section 66-3-301, et seq.

         In Proctor v. Chattanooga Orthopaedic Group, P.C., we held that the TCPA can apply to the entrepreneurial, commercial, or business aspects of a medical practice. 270 S.W.3d 56, 57, 61 (Tenn. Ct. App. 2008).[12] In that case, the defendants moved to dismiss the plaintiff's TCPA claims against a medical provider for failure to state a claim, and the trial court granted the motion, holding that the allegations of the complaint, which the court said "sounded in alleged deceptive business practices under the [TCPA]," did not state a claim for relief. Id. at 58. On appeal, the defendants argued that the TCPA "does not apply to the provision of medical services." Id. at 59. This court reversed the trial court, holding that medical malpractice and consumer protection claims are "wholly separate and distinct claims governed by separate statutory schemes." Id. at 60 (comparing Tenn. Code Ann. § 29-26-115, et seq. with Tenn. Code Ann. § 47-18-101, et seq). We concluded that Mr. Proctor had sufficiently pled his consumer protection claim based on his allegations that "[d]efendants had misled [him] in order to keep [his] business, and that [d]efendants charged for a more expensive procedure than the one actually performed." Id. (distinguishing those allegations that support a TCPA claim from the allegations that would support a medical malpractice claim: "Plaintiffs did not allege that Defendants had deviated from the acceptable standard of professional practice in either the decision to perform the surgery that was performed or in the manner in which the actual surgery was performed.").

         Consistent with our holding in Proctor, we agree with the trial court in this case that "the gravamen of the State's complaint lies in alleged deceptive business practices under the [TCPA], not in [health care liability]." The State's enforcement action does not meet the definition of "Health Care liability action" found in section 29-26-101(a)(1). The Complaint does not allege that HRC was negligent in providing BHRT treatment to any individual patient or BHRT patients as a group; neither, using the language in Proctor, does it allege that HRC "had deviated from the acceptable standard of professional practice in" in deciding to administer BHRT or "in the manner in which" the BHRT was administered. 270 S.W.3d at 60. The allegations of the Complaint are focused on the deceptiveness of HRC's business practices, which are part and parcel of the harm that the TCPA was enacted to remedy. Tenn. Code Ann. § 47-18-102 ("This part shall be liberally construed to promote the following policies: . . . (2) To protect consumers and legitimate business enterprises from those who engage in unfair or deceptive acts or practices in the conduct of any trade or commerce in part or wholly within this state . . . .").

         The basis of the TCPA action is that HRC advertised BHRT to its patients using false or incomplete information in violation of the TCPA, not that HRC failed to properly administer BHRT, thereby causing an injury; the allegations relate to advertising practices and state a claim for relief under the TCPA. As this case is not a healthcare liability action, the State was not obligated to send the pre-suit notice required by section 29-26-121(a)(1); consequently, the court did not err in denying HRC's motion to dismiss.

         II. Pre-Suit Notice Under the Consumer Protection Act[13]

         Tennessee Code Annotated section 47-18-108(a)(2) requires that the State give at least 10-days notice prior to instituting legal proceedings[14] under the TCPA unless it "determines in writing that the purposes of [the TCPA[15] will be substantially impaired by delay in instituting legal proceedings." The 10-day notice requirement is intended to give the recipient of the notice "an opportunity to present reasons why such proceedings should not be instituted." Id.

         HRC contends that "[t]he record contains not one word of explanation by the State as to why it chose to bypass the statutory requirement to give the Hales a chance to change any alleged inappropriate advertising."[16] However, the State alleged in the third paragraph of the Complaint that:

Pursuant to Tenn. Code Ann. § 47-18-108(a)(2), the Director of the Division of Consumer Affairs has determined that the purposes of the TCPA will be substantially impaired by a delay in instituting legal proceedings and has not provided Defendants with 10 days' notice of the State's intention to initiate legal proceedings against them.

         Further, in paragraph four of the Certification of Assistant Attorney General Brant Harrell in Support Of State's Ex Parte Motion for Temporary Restraining Order, which was filed with the complaint, Mr. Harrell stated:

The interests of justice require that the State's request be heard ex parte. Simply put, Defendants' misrepresentations and material omissions about their "bio-identical" hormone replacement therapy ("BHRT") place consumers' health in danger without their knowledge and leave consumers in the dark as to the true safety, risks, and side effects of BHRT. Because these risks or potential risks, which include endometrial cancer, breast cancer, and other serious health risks, to even one individual are so grave, the State has moved for a TRO without notice to Defendants in order to stop false, deceptive, and/or unsubstantiated claims and omissions before the time that a temporary injunction hearing can be held.

(citations omitted).[17]

         The requirement of the section 108(a)(2) is: (1) give 10-days notice before moving for a restraining order or injunction or (2) explain, in writing, why the purposes of the TCPA will be "substantially impaired" by delay; the State took the second route. In so doing, the State certified in paragraph three of the Complaint that "the purposes of the act would be substantially impaired by a delay in instituting legal proceedings"; this was supported by paragraph four of General Harrell's certification and the other exhibits, inter alia, documenting the advertisements that were the subject of the action and the potential harm to consumers arising from the advertisements. We do not second guess the State's determination to proceed in this fashion and, on the record presented, conclude that the State complied with the requirements of section 108(a)(2) and was not required to give notice prior to instituting the action.

         III. Exhaustion of Administrative Remedies

         On January 23, 2014, HRC filed a Motion for Administrative Remand in which it asked the trial court to remand the case to Health Related Boards for disposition, arguing that the State had failed to exhaust mandatory administrative remedies by not filing its claim under the TCPA with that agency. The trial court denied the motion, holding:

The Court cannot remand an action back to a forum that it never was in the first place-especially a forum that does not possess subject matter jurisdiction to adjudicate the underlying causes of action. Further, consistent with the TCPA, specifically Tenn. Code Ann. § 47-48-112 (2010 as amended), the Health-Related Boards' jurisdiction is not exclusive over the conduct set forth in the State's Complaint and does not preempt a claim brought by the State under the TCPA. The Court reaffirms its finding as set forth in its Memorandum Opinion Denying Defendant Dan Hale's Motion to Dismiss that the gravamen of the State's action is a properly-brought civil law enforcement action under the TCPA concerning Defendants' advertising, sales, and promotional practices.

         On appeal, HRC states the issue with respect to the trial court's ruling:

In evaluating the conduct of a Tennessee licensed clinic in effecting any medical practice or procedure, does the State have a statutory duty to present such issues of trivial versus substantial medical side effects, or other medical harm, first to the Tennessee Health Related Boards for review and action by its "screening panels, which are composed of licensed physicians."

         In its brief, HRC asserts that the State had a "statutory duty to present" the claims that were the subject of the suit to the "Tennessee Health Related Boards" before filing suit; however, HRC also states that "no statute absolutely requires that [the State submit its claims to the Health Related Boards]" and that submitting claims to the Health Related Boards is "not a mandatory requirement for the State or the trial court." As we understand the argument, HRC contends that trial court had the discretion to remand the suit to the Health Related Boards and abused that discretion by not doing so. An abuse of discretion occurs if a trial court causes an injustice to a party by "(1) applying an incorrect legal standard, (2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly erroneous assessment of the evidence." Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010).[18]

         HRC does not identify the source of authority for Health Related Boards to consider the TCPA claims in this suit, and acknowledges that there is no statutory mandate that required the trial court to "remand" this action to the Division. In the absence of such authority, we cannot conclude that the court applied an incorrect legal standard or reached an illogical or unreasonable decision. Further, as held previously, we agree that this suit is properly brought under the TCPA, and Health Related Boards has no function in that regard.

         IV. Motions for Summary Judgment

         We now address the rulings granting the State's and denying HRC's motions for summary judgment.

         A party is entitled to summary judgment only if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Tenn. R. Civ. P. 56.04. "To be material, a fact must be germane to the claim or defense on which the summary judgment is predicated." Green v. Green, 293 S.W.3d 493, 514 (Tenn. 2009) (citing Eskin v. Bartee, 262 S.W.3d 727, 732 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)). A disputed fact presents a genuine issue if "a reasonable jury could legitimately resolve that fact in favor of one side or the other." Perkins v. Metro. Gov't of Nashville, 380 S.W.3d 73, 80 (Tenn. 2012) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)).

         To assist the Court in determining whether any material facts are in dispute, the moving party must file "a separate concise statement of the material facts as to which the moving party contends there is no genuine issue for trial . . . Each fact shall be supported by a specific citation to the record." Tenn. R. Civ. P. 56.03. The party opposing summary judgment must then:

serve and file a response to each fact set forth by the movant either (i) agreeing that the fact is undisputed, (ii) agreeing that the fact is undisputed for purposes of ruling on the motion for summary judgment only, or (iii) demonstrating that the fact is disputed. Each disputed fact must be supported by specific citation to the record.

Tenn. R. Civ. P. 56.03.

         On appeal, we view the evidence in favor of the non-moving party by resolving all reasonable inferences in its favor and discarding all countervailing evidence. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003); Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002). We review the trial court's ruling on a motion for summary judgment de novo with no presumption of correctness. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015).

         A. The State's Motion for Summary Judgment on Liability/HRC's Motion for Summary Judgment

         The TCPA prohibits all "[u]nfair or deceptive acts or practices affecting the conduct of any trade or commerce" but leaves those terms undefined. Tenn. Code Ann. § 47-18-104(a).[19] Accordingly, we have concluded that "the standards to be used in determining whether a representation is 'unfair' or 'deceptive' under the TCPA are legal matters to be decided by the courts." Tucker, 180 S.W.3d at 116. Generally, to recover under the TCPA, "the plaintiff must prove: (1) that the defendant engaged in an unfair or deceptive act or practice declared unlawful by the TCPA and (2) that the defendant's conduct caused an '"ascertainable loss of money or property, real, personal, or mixed, or any other article, commodity, or thing of value wherever situated . . . .'" Id. at 115. (quoting Tenn. Code Ann. § 47-18-109(a)(1)).

         In its first motion for summary judgment (the "Liability Motion"), the State contended that HRC had violated the TCPA by publishing advertisements that contained false representations, unsubstantiated representations, and representations that omitted material facts. In its motion, HRC argued that the State's evidence was insufficient to establish a violation of the TCPA and "the State possessed no evidence at the time the lawsuit was filed which would minimally meet the requirements of [Tennessee] Rule [of Civil Procedure] 11."

         In the order disposing of the motions, the court partially granted the State's motion and denied HRC's motion. As to the State's motion, the court ruled that HRC had violated the TCPA in five ways:

(1) By advertising that BHRT was "completely" safe;
(2) By advertising BHRT had "no side effects";
(3) By advertising BHRT "could make a user's hormones identical to those he or she had when she was in her twenties or thirties";
(4) By advertising BHRT was manufactured at a compounding pharmacy that was approved by the U.S. Food and Drug Administration; and
(5) By omitting that it had material connections to individuals who provided testimonials in its advertisements.

         The court also granted the State summary judgment on the personal liability of Don Hale and Dan Hale, denied summary judgment as to the personal liability of Dixie Hale.

         Consistent with the standard applicable to the resolution of summary judgment motions, we review the record to determine first, whether there was a genuine issue of material fact which would preclude summary judgment and, if not, whether the State was entitled to judgment as a matter of law.

         In support of its motion, the State filed a Rule 56.03 Statement of Undisputed Material Facts consisting of 249 statements, [20] responses of HRC to discovery, and other materials provided by media outlets, including interviews with various employees of HRC; the State also relied upon numerous affidavits of customers of HRC which had been filed with the complaint in support of the application for injunctive relief. HRC responded to the State's Rule 56.03 statement, disputing seventeen facts either fully or partially; nine of the facts disputed by HRC were offered to show liability on a ground on which summary judgment was granted.[21] We first discuss these nine facts to determine whether any creates a genuine issue of material fact that would preclude summary judgment; the nine facts relate generally to three areas of advertising: that BHRT was completely safe (paragraphs 27, 28, and 31); that BHRT had no side effects (paragraphs 34 and 38); and that BHRT was manufactured in a FDA approved facility (paragraphs 112 through 115).

         1. Undisputed Facts

         a. BHRT was completely safe

         The State asserted the following facts in support of the allegation that HRC violated the TCPA by expressly claiming in its advertising that its BHRT treatment was completely safe.

Paragraph 27. There were possible side effects for Defendant HRC's BHRT for both men and women.
Paragraph 28. Possible side effects of Defendant HRC's BHRT in women include a deepening of the voice, dysfunctional uterine bleeding, hypertension, hair loss, clitoral hypertrophy, unwanted facial ...

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