Cliff Santellana and Gulf-Tex Roofing & Services, LLC D/B/A Gulf-Tex Roofing & Services v. Centimark Corporation
01-18-00632-CV
| Tex. App. | Apr 2, 2019Background
- Santellana was CentiMark’s Director of Sales/Services (2012–2016) and signed an employment agreement with confidentiality and non‑solicitation covenants and a contractual choice‑of‑law and exclusive forum clause (Western District of Pennsylvania or Allegheny County, PA).
- Santellana left CentiMark and soon co‑founded Gulf‑Tex, a competitor; Gulf‑Tex and Santellana solicited and obtained business from some former CentiMark customers.
- CentiMark sued Santellana and Gulf‑Tex for misappropriation of trade secrets, tortious interference, unfair competition, conversion, conspiracy, and breach of the employment agreement.
- Santellana and Gulf‑Tex moved to dismiss under the Texas Citizens Participation Act (TCPA) and also asserted the contract’s venue/forum clause; the trial court denied the TCPA motion without stating the basis.
- On appeal, defendants challenged (1) the forum/venue choice‑of‑law clause and (2) the denial of the TCPA motion, arguing they met the TCPA’s initial burden and CentiMark failed to present clear and specific evidence of each claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court should have dismissed or transferred based on the contract’s forum/venue clause | CentiMark did not specifically argue this on appeal (focus was merits) | Santellana/Gulf‑Tex contended the clause required dismissal/transfer to Pennsylvania | Dismissed for want of jurisdiction on appeal; error not preserved and venue objection waived for failure to timely move to transfer |
| Whether the TCPA applies to CentiMark’s claims (initial burden) | CentiMark argued TCPA did not apply because of the commercial‑speech exemption | Santellana/Gulf‑Tex argued their actions implicated rights protected by TCPA (speech/association) and they met initial burden | Appellate court declined to reach merits because defendants failed to challenge an independent ground (commercial‑speech exemption) in opening brief; issue overruled |
| Whether CentiMark met its burden to show prima facie case under TCPA burden‑shifting | CentiMark asserted it produced clear and specific evidence for each claim | Defendants argued CentiMark failed to establish prima facie proof of essential elements | Court affirmed denial of TCPA motion—because defendants did not adequately challenge the commercial‑speech exemption as an independent basis for denial |
| Whether the commercial‑speech exemption (Tex. Civ. Prac. & Rem. Code §27.010(b)) bars TCPA relief | CentiMark argued the exemption applied because claims arise from commercial transaction and intended audience were actual/potential customers | Defendants argued TCPA still applies; attempted to rebut exemption in reply brief | Court treated the exemption as an unchallenged independent ground supporting denial; defendants waived meaningful challenge by not addressing it in opening brief; denial affirmed |
Key Cases Cited
- In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 2008) (interlocutory review limits for venue rulings)
- Vela v. Manning, 314 S.W.3d 693 (Tex. App.—Dallas 2010) (preservation rules for venue objections)
- Serafine v. Blunt, 466 S.W.3d 352 (Tex. App.—Austin 2015) (describing TCPA as anti‑SLAPP statute)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (legislative purpose of TCPA)
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA burden‑shifting framework)
- Dolcefino v. Cypress Creek EMS, 540 S.W.3d 194 (Tex. App.—Houston [1st Dist.] 2017) (procedural aspects of TCPA dismissal practice)
- Britton v. Tex. Dep’t of Criminal Justice, 95 S.W.3d 676 (Tex. App.—Houston [1st Dist.] 2002) (appellate rule requiring attack on all independent grounds supporting adverse ruling)
- Elite Auto Body LLC v. Autocraft Bodywerks, Inc., 520 S.W.3d 191 (Tex. App.—Austin 2017) (discussion of commercial‑speech exemption and waiver issues)