Opinion issued August 18, 2020




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                             ————————————

                              NO. 01-19-00236-CV
                           ———————————
                        LISA RODRIGUEZ, Appellant
                                        V.
          UNIVERSAL SURGICAL ASSISTANTS, INC., Appellee


                   On Appeal from the 458th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 18-DCV-258012


                         MEMORANDUM OPINION

      In this interlocutory appeal,1 appellant, Lisa Rodriguez, challenges the trial

court’s denial of her motion to dismiss the claims of appellee, Universal Surgical



1
      See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.008, 51.014(a)(12).
Assistance, Inc. (“Universal Surgical”), under the Texas Citizen’s Participation Act

(“TCPA”).2 In two issues, Rodriguez contends that the trial court erred in denying

her motion to dismiss.

      We affirm.

                                      Background

      In its petition and request for temporary restraining order, Universal Surgical,

a provider of third-party medical billing services, alleged that it developed and

maintains proprietary methodology and processes for medical billing that it taught

to Rodriguez, a former employee.

      Rodriguez began her employment with Universal Surgical as manager of its

Universal Surgical billing department in April 2014. She signed a Non-Competition

Agreement with Universal Surgical that prohibited her from “directly or indirectly

engag[ing] in any business” within a sixty-mile radius of Houston, Texas that

competes with Universal Surgical “[f]or a period of [two] years after the effective




2
      See id. §§ 27.001–.011. The Texas Legislature amended the TCPA in June 2019,
      but the amendments apply only to an action filed on or after September 1, 2019. See
      Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 1–12, 2019 TEX. SESS. LAW SERV.
      684 (current version at TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011). The
      2019 amendments, which, among other things, provided clarification for the
      TCPA’s application, do not apply here. Because the former version of the TCPA
      applies to this case, all citations to the statute herein are to the TCPA as it existed
      before September 1, 2019.

                                             2
date of th[e] [a]greement . . . .”3    During her employment, Universal Surgical

instructed Rodriguez on how to use its billing methods and processes, and it provided

her with password-protected access to its proprietary information.

      Rodriguez ended her employment with Universal Surgical on December 3,

2018. Immediately thereafter, she went to work for American Surgical Professionals

in Fort Bend County, Texas—a competing company with its own medical billing

department. Two weeks after leaving Universal Surgical, Rodriguez contacted

Rachelle Shaw, a Universal Surgical employee who had worked under Rodriguez’s

supervision. Rodriguez told Shaw that she had left a notebook in her former office

and asked her to deliver it to her. Before sending the notebook, Shaw looked at its

contents and found that the notebook did not contain Rodriguez’s personal

information; rather, it contained information about Universal Surgical’s billing

systems. Shaw returned the notebook to the office and reported Rodriguez’s request

to Universal Surgical.4

      Universal Surgical brought claims against Rodriguez for violations of the

Texas Uniform Trade Secret Act, breach of the contract, tortious interference with

existing contractual relations, conspiracy, breach of fiduciary duty, and a declaratory




3
      Universal Surgical attached a copy of the Non-Competition Agreement to its
      petition.
4
      Universal Surgical attached the declaration of Shaw to its petition.

                                            3
judgment. Universal Surgical sought damages, declaratory and injunctive relief, and

attorney’s fees.

      Rodriguez answered and moved to dismiss Universal Surgical’s claims

against her under the TCPA,5 arguing that Universal Surgical’s claims should be

dismissed because they are based on, or related to, Rodriguez’s exercise of the right

of association and the right of free speech. After Universal Surgical responded, the

trial court denied Rodriguez’s motion.

                                  Standard of Review

      We review de novo a trial court’s ruling on a TCPA motion to dismiss. See

Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d

345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied). In making this

determination, we view the pleadings and evidence in a light most favorable to the

nonmovant. Schimmel v. McGregor, 438 S.W.3d 847, 855–56 (Tex. App.—Houston

[1st Dist.] 2014, pet. denied).

                              TCPA Motion to Dismiss

      In her first issue, Rodriguez argues that the trial court erred in denying her

motion to dismiss Universal Surgical’s claims against her because she met her

burden to show that the claims against her are based on, or related to, her exercise

of the right of association and the right of free speech.

5
      See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a).

                                           4
      Under the TCPA, a defendant may move to dismiss a “legal action” that is

“based on, relate[d] to, or . . . in response to a party’s exercise of the right of free

speech, right to petition, or right of association.” TEX. CIV. PRAC. & REM. CODE

ANN. § 27.003(a); Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d

127, 131 (Tex. 2019). “The TCPA’s purpose is to identify and summarily dispose

of lawsuits designed only to chill First Amendment rights, not to dismiss meritorious

lawsuits.” In re Lipsky, 460 S.W.3d 579, 589 (Tex. 2015); see KTRK Tel., Inc. v.

Robinson, 409 S.W.3d 682, 688 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

      The TCPA requires that a trial court deciding a motion to dismiss “shall

consider the pleadings and supporting and opposing affidavits” filed by the parties.

See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). The statute provides a

three-step process to determine whether a lawsuit or claim should be dismissed.

Creative Oil & Gas, 591 S.W.3d at 132; see also TEX. CIV. PRAC. & REM. CODE

ANN. §§ 27.003 (“Motion to Dismiss”), 27.005 (“Ruling”).

      Under the first step, a movant must show by a preponderance of the evidence

that the TCPA applies. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b). The

TCPA applies if the nonmovant’s “legal action”—defined as “a lawsuit, cause of

action, petition, complaint, cross-claim, or counterclaim or any other judicial

pleading or filing that requests legal or equitable relief”—is based on, related to, or




                                           5
in response to the movant’s exercise of (1) the right of free speech, (2) the right to

petition, or (3) the right of association. Id.; In re Lipsky, 460 S.W.3d at 586–87.

      If the movant shows that the TCPA applies, then the burden shifts to the

nonmovant under the second step to establish by “clear and specific evidence a prima

facie case for each essential element” of its claim. TEX. CIV. PRAC. & REM. CODE

ANN. § 27.005(c); In re Lipsky, 460 S.W.3d at 587. If the movant meets the first

step, but the nonmovant does not meet the required showing of a prima facie case,

the trial court must dismiss the nonmovant’s claim. See TEX. CIV. PRAC. & REM.

CODE ANN. § 27.005. Under the third step, even if the nonmovant satisfies the

second step, the court will nonetheless dismiss the claim if the movant proves by a

preponderance of the evidence the essential elements of a valid defense to the

[nonmovant’s] claim.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d); Youngkin

v. Hines, 546 S.W.3d 675, 681 (Tex. 2018).

      A nonmovant can avoid the TCPA’s burden-shifting requirements by showing

that one of the Act’s several exemptions applies. See TEX. CIV. PRAC. & REM. CODE

ANN. § 27.010.

      According to Universal Surgical’s petition, Rodriguez misappropriated its

confidential and proprietary information and solicited its employees to benefit her

new employer. Since Rodriguez filed her appellant’s brief, this Court held en banc

that the associational rights protected by the TCPA are public in nature and thus do


                                          6
not include acts in furtherance of private business interests like the ones between

Rodriguez and her new employer. See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457,

475–76 (Tex. App.—Houston [1st Dist.] 2020, pet. filed) (en banc) (op. on reh’g);

see also Nat’l Signs, Inc. v. Graff, No. 01-18-00662-CV, 2020 WL 2026321, at *3–

4 (Tex. App.—Houston [1st Dist.] Apr. 8, 2020, no pet.) (mem. op.).

      To the extent that Rodriguez also asserts that Universal Surgical’s claims were

based on her exercise of her right of free speech, that claim also fails. The TCPA

defines “exercise of the right of free speech” as “a communication made in

connection with a matter of public concern.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.001(3). Rodriguez’s communications with her employer were not “made in

connection with a matter of public concern” because they had “no potential impact

on the wider community or a public audience of potential buyers and sellers,” having

“no public relevance beyond the pecuniary interests of the private parties.”

Gaskamp, 596 S.W.3d at 477. We thus conclude that Rodriguez did not meet her

burden of showing, by a preponderance of the evidence, that Universal Surgical’s

claims are based on, related to, or in response to the exercise of her right of

association or her right of free speech. We hold that the trial court did not err in

denying Rodriguez’s motion to dismiss.




                                         7
      We overrule Rodriguez’s first issue.6

                                      Conclusion

      We affirm the trial court’s order denying Rodriguez’s TCPA motion to

dismiss.




                                         Julie Countiss
                                         Justice

Panel consists of Chief Justice Radack and Justices Lloyd and Countiss.




6
      Because Rodriguez’s first issue is dispositive, we need not address her second issue.
      See TEX. R. APP. P. 47.1.

                                            8
