Opinion issued January 28, 2020




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-19-00394-CV
                          ———————————
                       MISTY HAWKINS, Appellant
                                      V.
               FOX CORPORATE HOUSING, LLC, Appellee


                  On Appeal from the 295th District Court
                           Harris County, Texas
                     Trial Court Case No. 2019-15485


                                OPINION

      Fox Corporate Housing, LLC sued its former employee, Misty Hawkins, for

breach of a non-compete and a non-disclosure agreement, injunctive relief, and

attorney’s fees. Hawkins answered and moved to dismiss under the Texas Citizens
Participation Act (the “TCPA”)1, and the trial court denied her motion. In five

issues, Hawkins challenges the trial court’s order denying her motion to dismiss.

We affirm.

                                   Background

      Fox Corporate Housing, LLC (“Fox”) is a provider of short-term, fully-

furnished rental properties. In August 2017, Fox hired Misty Hawkins as a Senior

Account Executive. Hawkins was responsible for converting leads into sales,

managing customer relationships, and processing lease paperwork.

The Non-disclosure and Non-compete Agreements and the Alleged Misconduct

      About a year after Fox hired her, Hawkins executed a non-disclosure

agreement. Under the terms of the non-disclosure agreement, Fox would allow

Hawkins access to “confidential and trade secret information,” and Hawkins

agreed to “treat all such information as confidential and to take all necessary

precautions against disclosure of such information to third parties during and after

the term of” the agreement. The non-disclosure agreement defined trade secrets as

“[c]ustomer lists, pricing data, sources of supply, financial data and marketing,

1
      See TEX. CIV. PRAC. & REM. CODE §§ 27.001–27.011. The Texas Legislature
      amended certain provisions of the TCPA in 2019. Act of May 17, 2019, 86th Leg.,
      R.S., ch. 378, §§ 1–9, § 12, sec. 27.001, 27.003, 27.005–.007, 27.0075, 27.009–
      .010 (to be codified at TEX. CIV. PRAC. & REM. CODE §§ 27.001, 27.003, 27.005–
      .007, 27.0075, 27.009–.010). The amendments became effective September 1,
      2019. Id. at § 11. Because suit was filed before the effective date of the
      amendments, this case is governed by the statute as it existed before the
      amendments. See id. All our citations and analysis are to the TCPA as it existed
      prior to September 1, 2019.
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production, or merchandising systems or plans,” among other things. About a

month later, Hawkins executed a non-compete agreement. The non-compete

agreement precluded Hawkins from working with any of Fox’s competitors within

a 250-mile radius of Harris and Montgomery counties for a period of two years

during and after the term of her employment. The non-compete agreement also

included a non-solicitation provision, requiring that Hawkins not, among other

things, “directly or indirectly . . . [s]olicit, entice, or hire away any employee or

contractor of [Fox] for the purpose of an employment opportunity that is in

competition with [Fox].”

      Fox terminated Hawkins the following day for “employment-related issues.”

One month later, Fox received an e-mail sent to Hawkins’s old Fox e-mail address.

The e-mail was in response to Hawkins’s earlier reply on behalf of Fox’s

competitor, Express Corporate Housing, LLC (“Express”). Fox determined that

Hawkins was working at Express in violation of her non-compete and non-

disclosure agreements.

      On March 1, 2019, Fox sued Hawkins for breach of a non-compete and a

non-disclosure agreement, injunctive relief, and attorney’s fees. Fox alleged that

Hawkins breached the non-compete and non-disclosure agreements by accepting a

position with Express and soliciting Fox’s customers. Fox also alleged that




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Hawkins’s misconduct caused it to lose business opportunities totaling “$3.5

million annually.”

The TCPA motion to dismiss proceedings

      Hawkins answered Fox’s suit and moved to dismiss it under the TCPA. Fox

opposed Hawkins’s motion, arguing that the TCPA was inapplicable, that the

commercial-speech exemption applied, and that Fox established by clear and

specific evidence a prima facie case for each essential element of its claims.

      After a hearing on Hawkins’s motion, she filed a post-submission brief,

citing case law in support of her arguments for lack of consideration for the non-

compete and confidentiality agreements. Subsequently, the trial court ruled on

Hawkins’s evidentiary objections regarding the affidavit and e-mails attached to

Fox’s response to Hawkins’s TCPA motion and denied her motion to dismiss.2

This interlocutory appeal followed.

                              Hawkins’s TCPA Motion

A.    Applicable law and standard of review

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

“based on, relates to, or is in response to a party’s exercise of the right of free


2
      On appeal, Hawkins asserts that the trial court erred by overruling her objections
      to Fox’s affidavit of its managing director, T. Leach, and to e-mails attached to the
      affidavit. We do not consider Hawkins’s challenge to her evidentiary objections
      because it is sufficient for Fox to rely on the factual allegations in its pleadings to
      meet its burden. See TEX. CIV. PRAC. & REM. CODE § 27.006; Greer v. Abraham,
      489 S.W.3d 440, 446 (Tex. 2016).
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speech, right to petition, or right of association.” TEX. CIV. PRAC. & REM. CODE §

27.003(a); Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, No. 18-0656, 2019

WL 6971659, at *2 (Tex. Dec. 20, 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)

(citing TEX. CIV. PRAC. & REM. CODE § 27.002); see KTRK Television, Inc. v.

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

denied). A party’s TCPA motion must be filed in the early stages of litigation

before the parties engage in significant discovery. See In re Lipsky, 460 S.W.3d at

589 (recognizing that the TCPA “endorses a summary process, requiring judicial

review of the pleadings and limited evidence, typically within 150 days following

service”). As such, the statute itself contemplates that the amount and quality of

evidence available at the time the motion is filed will be less than that available at

trial on the merits or even at the summary-judgment stage. Porter-Garcia v. Travis

Law Firm, P.C., 564 S.W.3d 75, 84 (Tex. App.—Houston [1st Dist.] 2018, pet.

denied) (explaining that parties are not required “to marshal all of their evidence at

the motion to dismiss stage”).

      The defendant-movant bears the initial burden of showing by a

preponderance of evidence that the conduct that forms the basis of the claim

against her is protected by the TCPA—that is to say, that the suit is based on,


                                          5
relates to, or is in response to the movant’s exercise of her right to free speech,

association, or petition. TEX. CIV. PRAC. & REM. CODE § 27.005(b); S & S

Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018). If the

defendant meets this burden, then the burden shifts to the plaintiff-nonmovant to

establish “by clear and specific evidence a prima facie case for each essential

element of the claim in question.” Id. § 27.005(c). Dismissal of the case is required

if the plaintiff-nonmovant fails to meet its burden or if the defendant-movant

“establishes by a preponderance of the evidence each essential element of a valid

defense to the [plaintiff’s] claim.” Id. § 27.005(d); Baumgart v. Archer, 581

S.W.3d 819, 825 (Tex. App.—Houston [1st Dist.] 2019, pet. filed). In conducting

our review, we consider the pleadings and evidence in a light favorable to the

plaintiff-nonmovant. Deuell v. Tex. Right to Life Comm., Inc., 508 S.W.3d 679,

685 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

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

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). We interpret the

TCPA in accordance with its express statutory language. See Jordan v. Hall, 510

S.W.3d 194, 197 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (citing Galbraith

Eng’g Consultants, Inc. v. Pochucha, 290 S.W.3d 863, 867 (Tex. 2009)). When

construing the TCPA, as with any other statute, our objective is to give effect to the


                                          6
legislative intent, looking first to the statute’s plain language. Lippincott v.

Whisenhunt, 462 S.W.3d 507, 509 (Tex. 2015) (per curiam).

B.    The Commercial-Speech Exemption Applies

      Section 27.010 exempts certain types of legal actions from the TCPA. See

TEX. CIV. PRAC. & REM. CODE § 27.010. For instance, as asserted in this case, the

commercial-speech exemption excludes certain commercial speech from the

TCPA’s protections. See id. § 27.010(b). The party asserting the commercial-

speech exemption bears the burden to prove by a preponderance of the evidence

that it applies. Id. § 27.010(b). There are four elements to the commercial-speech

exemption:

      (1) the defendant was primarily engaged in the business of selling or
      leasing goods or services;

      (2) the defendant made the communication on which the claim is
      based in its capacity as a seller or lessor of those goods and services;

      (3) the communication at issue arose out of a commercial transaction
      involving the kind of goods or services that the defendant provides;
      and

      (4) the intended audience of the communication was actual or
      potential customers of the defendant for the defendant’s kind of goods
      or services.

Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam).

We consider the pleadings and the TCPA record to determine whether a party has

met its burden on the commercial-speech exemption’s elements. See Grant v. Pivot


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Tech. Sols., Ltd., 556 S.W.3d 865, 889 (Tex. App.—Austin 2018, pet. filed); Giri

v. Estep, No. 03-17-00759-CV, 2018 WL 2074652, at *4 (Tex. App.—Austin May

4, 2018, pet. denied) (mem. op.). We may rely on the factual allegations in a

plaintiff’s petition, alone, to meet the elements. See Grant, 556 S.W.3d at 889. We

now analyze each element in turn.

      1.    Hawkins was primarily engaged in the business of selling services

      Hawkins argues that Fox failed to establish the first element of the

commercial-speech exemption because Hawkins herself is not a business entity

and she made no “statements or engaged in conduct for her customers.” In

response, Fox contends that the exemption applies to individual persons and urges

the Court to rely on the plain text of the exemption, which provides that the

“TCPA does not apply to a legal action brought against a person.” TEX. CIV. PRAC.

& REM. CODE § 27.010(b). In support of its position, Fox relies on Rose v. Science

Machine & Welding, Inc., No. 03-18-00721-CV, 2019 WL 2588512 (Tex. App.—

Austin June 25, 2019, no pet.) (mem. op.).

      In Rose, Scientific Machine & Welding, Inc. sued its former employee,

Kevin Rose, for breach of contract and trade-secret misappropriation after he

started working for one of its customers. Id. at *1. Rose filed a TCPA motion to

dismiss, and the trial court denied the motion. Id. Rose appealed, arguing that the

trial court erred in denying his TCPA motion because Scientific failed to prove that


                                         8
the commercial-speech exemption applied. Id. The court concluded that when an

employee resigns from a company and then performs or seeks to perform “similar

services for his former employer’s customers,” then he continues “to be primarily

engaged in that type of business for the purposes of the TCPA’s commercial-

speech exemption.” Id. at *5.

      In its trial court pleadings, Fox alleged that, when Fox terminated her

employment, Hawkins allegedly performed or sought to perform similar services

for one of her former employer’s major competitors. Fox specifically pleaded that

“Hawkins was a Senior Account Executive . . . responsible for converting leads

into sales, managing customer relationships, and processing lease paperwork.” Fox

further pleaded that Fox’s customers attempted to contact Hawkins using her

former Fox e-mail address to convert a lead into a sale when Fox’s customer asked

Hawkins to “find three houses in the Northeast area.” And, in her role at Express

as a “sales executive” or a “national leasing associate,” Hawkins is “currently

servicing customers that she misappropriated from Fox.” Express is “one of Fox’s

chief competitors.”

      According to the pleadings and TCPA record evidence, Hawkins was

responsible for providing a service of locating short-term, fully-furnished rental

properties at Fox and now provides a similar service at Express. There is no

requirement that Hawkins be “the actual business itself” before Fox can claim the


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commercial-speech exemption. See Hieber v. Percheron Holdings, LLC, No. 14-

19-00505-CV, 2019 WL 6001153, at *4 (Tex. App.—Houston [14th Dist.] Nov.

14, 2019, no pet. h.) (explaining that the commercial-speech “exemption can apply

even though the movant is just an employee”); Rose, 2019 WL 2588512, at *5

(“Notably, the exemption’s plain text requires the defendant to be primarily

engaged in the business of selling goods or services, not primarily engaged in the

act of selling.”). In reviewing the allegations in the parties’ pleadings and record

evidence in a light favorable to Fox, we conclude that Hawkins was primarily

engaged in the business of selling or leasing goods or services.

      2.     Hawkins made communications in her capacity as a seller of
             services

      We review the context of the statements to determine whether the challenged

statements propose a commercial transaction. Rose, 2019 WL 2588512, at *5. Fox

alleged that Hawkins’s solicitation of Fox’s former customers resulted in a loss of

two customers valued at about $3.5 million annually. Fox relies on its former

customer’s e-mail to Hawkins and contends that these “two former customers are

leasing properties from Hawkins at Express and no longer do business with Fox.”

In other words, Fox contends that Hawkins unlawfully used its client data to

communicate with and solicit clients and she disclosed its “pricing material” in her

capacity as a competing sales executive at Express. And, because of this alleged

use and disclosure of Fox’s confidential information, Fox’s former customers have

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since ended their business relationship with Fox and have now contracted with its

competitor.

      Based on the record evidence and the allegations in the parties’ pleadings,

we conclude that Hawkins made the communications on which Fox’s claims are

based in her capacity as a seller of goods or services. See Giri, 2018 WL 2074652,

at *4 (concluding that second element of the commercial-speech exemption was

met where evidence showed appellant sent e-mail to his past customers

acknowledging their prior use of his pathology services); Epperson v. Mueller, No.

01-15-00231-CV, 2016 WL 4253978, at *10–11 (Tex. App.—Houston [1st Dist.]

Aug. 11, 2016, no pet.) (mem. op.) (determining that statements made by

defendant-seller of collectible memorabilia about authenticity of competitor’s

goods were made in the course of promoting defendant’s authenticity services).

Hawkins made statements to Fox’s former customers in an attempt to promote

Express, according to Fox’s allegations. See Staff Care, Inc. v. Eskridge

Enterprises, LLC, No. 05-18-00732-CV, 2019 WL 2121116, at *8 (Tex. App.—

Dallas May 15, 2019, no pet.) (mem. op.) (determining that the second element of

the commercial-speech exemption was met where pleadings showed that “Staff

Care pursued business for itself and stood to profit from it” when it told “its

physicians and potential physicians they were not permitted to leave or work with

Eskridge”).


                                       11
      3.     The communication arose out of a commercial transaction
             involving the kind of services that Hawkins provides

      The third element requires Fox to show that the statement or conduct at issue

arose out of a commercial transaction involving the kind of services that Hawkins

provides. Fox asserted two breach-of-contract claims against Hawkins for: (1)

working for a competitor in breach of the non-compete agreement; and (2)

soliciting Fox’s customers and using Fox’s confidential information. These claims

arose out of sales services Hawkins provides at Express, including locating short-

term, fully-furnished rental properties. We conclude that Fox’s pleadings and

evidence establish the third element of the commercial-speech exemption. See

Morrison v. Profanchik, 578 S.W.3d 676, 683 (Tex. App.—Austin 2019, no pet.)

(“A defendant’s online review of a competitor’s sale and installation of the same

product sold and installed by the defendant is a statement that meets” the third

element of the commercial-speech exemption); Callison v. C&C Pers., LLC, No.

09-19-00014-CV, 2019 WL 3022548, at *6 (Tex. App.—Beaumont July 11, 2019,

pet. denied) (mem. op.) (“Utilizing confidential or proprietary information from a

previous employer while working for a new employer to target and secure the same

customers satisfies this element.”).




                                        12
        4.    The intended audience of the communication was actual
              customers of Hawkins for Hawkins’s kind of services

        The final element of the commercial-speech exemption requires Fox to show

that the intended audience of Hawkins’s statements and conduct was an actual or

potential customer for the kind of services that Hawkins provides. As addressed

above, Fox has alleged through its pleadings and evidence that Hawkins has

targeted and poached at least two of its former customers who no longer do

business with Fox. Specifically, Fox alleged that Hawkins is “currently servicing

customers that she misappropriated from Fox.” We hold that Fox met its burden to

establish the fourth element of the commercial-speech exemption.

        Viewing the pleadings and TCPA record evidence in a light favorable to

Fox, we conclude that Fox established by a preponderance of the evidence that its

lawsuit is exempt from the TCPA under the commercial-speech exemption. See

Grant, 556 S.W.3d at 889. Because the trial court’s ruling may be affirmed on this

basis, we need not address the parties’ remaining arguments. See TEX. R. APP. P.

47.1.




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                                    Conclusion

      Having concluded that the TCPA’s commercial-speech exemption applies,

we affirm the trial court’s order denying the motion to dismiss.




                                              Sarah Beth Landau
                                              Justice

Panel consists of Chief Justice Radack and Justices Landau and Hightower.




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