596 S.W.3d 457
Tex. App.2020Background
- WSP USA entities sued former employees (Gaskamp, Miller, Hunter, and Sinz) and Infinity MEP for alleged misappropriation of trade secrets, breach of fiduciary duty, tortious interference, unjust enrichment, civil conspiracy, and related claims after the employees left to join/create Infinity.
- Forensic analysis allegedly showed non‑WSP USB access, retrieval of “Potential Projects” and Revit files (proprietary design files) and off‑book work (ME Global) that WSP says were used to solicit clients and populate Infinity’s marketing.
- Appellants (Gaskamp, Miller, Hunter) moved to dismiss under the Texas Citizens’ Participation Act (TCPA), claiming the suit targeted their exercise of free association and free speech; they sought dismissal plus attorney’s fees and sanctions.
- WSP filed a Second Amended Petition after the TCPA motion: WSP USA was nonsuited; WSP Buildings and WSP Administration limited or adjusted claims and verified the amended pleading; WSP relied on the amended pleading in opposing the TCPA motion.
- Trial court denied the TCPA motion; appellants appealed. The court analyzed (1) whether the TCPA applied (right of association/free speech), (2) whether the commercial‑speech exemption removed certain claims from TCPA coverage, and (3) whether the TCPA motion was mooted by amendment/nonsuit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of TCPA (right of association) | Appellants: their communications in forming/pursuing Infinity were protected association activity | WSP: communications were private, tortious conspiracy/ trade‑secret misappropriation serving private interests, not public association | Held: No TCPA protection for association—"common interests" requires a public/community component; private conspiracy for pecuniary gain not covered |
| Applicability of TCPA (free speech) | Appellants: internal and some external communications (website postings, solicitations) were communications on matters of public concern | WSP: communications were private/commercial or otherwise not of public concern; marketing solicitations fall under commercial‑speech exemption | Held: Internal communications not public matters; marketing to clients is commercial and exempt from TCPA |
| Mootness by amendment/nonsuit | WSP: filing Second Amended Petition (nonsuiting WSP USA, narrowing claims) mooted TCPA motion based on First Amended Petition | Appellants: TCPA motion sought affirmative relief (dismissal with prejudice, fees); motion survives nonsuit/amendment | Held: TCPA motion was not moot—motion sought affirmative relief (fees/sanctions) that survives nonsuit/amendment |
| Attorney’s fees against nonsuiting plaintiff (WSP USA) | Appellants: WSP USA failed to respond to TCPA motion, so fees should be awarded against it | WSP: (implicit) nonsuit/ amendment relieved WSP USA; no fee liability without burden shifting | Held: No fees awarded—appellants did not prove TCPA applied to WSP USA’s claims, so burden never shifted to WSP USA to respond |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (establishes TCPA three‑step framework and evidentiary burdens)
- Youngkin v. Hines, 546 S.W.3d 675 (Tex. 2018) (statutory interpretation principles for TCPA)
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (commercial‑speech exemption elements under TCPA)
- ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895 (Tex. 2017) (analysis of private communications and public‑concern inquiry under TCPA)
- Kawcak v. Antero Res. Corp., 582 S.W.3d 566 (Tex. App.—Fort Worth 2019) ("common interests" requires more than private, self‑interested conspiracy)
- Dyer v. Medoc Health Servs., LLC, 573 S.W.3d 418 (Tex. App.—Dallas 2019) (TCPA does not protect private conspiratorial communications to misappropriate trade secrets)
- TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432 (Tex. 2011) (use of dictionary/plain meaning in statutory construction)
- Silguero v. CSL Plasma, Inc., 579 S.W.3d 53 (Tex. 2019) (dictionary usage to determine statutory meaning)
- State ex rel. Best v. Harper, 562 S.W.3d 1 (Tex. 2018) (TCPA construction and legislative intent principles)