591 S.W.3d 208
Tex. App.2019Background
- Percheron Holdings and Percheron Professional Services (collectively Percheron) sued former VP Jeffrey Hieber for breach of a Unit Grant Agreement that included two‑year (or while units held) non‑compete and non‑solicit covenants.
- Hieber worked in business development and, after resigning in 2018, joined LJA Surveying as VP of Project Development, a direct competitor in surveying services.
- Percheron alleges Hieber solicited Percheron customers and participated in LJA bids, causing at least one customer to award a project to LJA instead of Percheron.
- Hieber moved to dismiss under the Texas Citizens Participation Act (TCPA), arguing the suit targeted his exercise of free speech/association; Percheron opposed and also argued the TCPA was inapplicable because of the commercial‑speech exemption and that the TCPA is preempted by the Texas Covenant Not To Compete Act.
- The trial court denied Hieber’s TCPA motion; on interlocutory appeal the Fourteenth Court of Appeals affirmed, holding Percheron established the TCPA commercial‑speech exemption.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hieber met the TCPA movant’s initial burden | Percheron urged the court to assume Hieber met it for analysis | Hieber argued Percheron’s suit was based on his exercise of free speech/association | Court assumed for argument Hieber met the initial burden and moved to nonmovant’s proof for disposition |
| Whether Percheron established a prima facie claim for breach | Percheron asserted its pleadings/evidence established all elements | Hieber contended claims lacked required factual support | Court did not resolve because exemption was dispositive |
| Whether Percheron’s suit is exempt from the TCPA under the commercial‑speech exemption | Percheron argued it met all four Castleman elements: (1) Hieber engaged in selling services, (2) conduct/statements arose in seller capacity, (3) arose out of commercial transaction for surveying services, (4) intended audience were Percheron customers | Hieber argued he did not “sell” anything, was merely an employee, and his attendance at events/employment decisions are not seller‑capacity commercial speech | Held: Court found by preponderance Percheron proved all four elements and the TCPA exemption applies; denial of dismissal affirmed |
| Whether the TCPA is preempted by the Texas Covenant Not To Compete Act | Percheron contended the TCPA is preempted | Hieber relied on TCPA defenses/dismissal | Court did not reach preemption because commercial‑speech exemption resolved the appeal |
Key Cases Cited
- Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370 (Tex. 2019) (scope of de novo review and burdens under the TCPA)
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (defines elements of TCPA commercial‑speech exemption)
- Hersh v. Tatum, 526 S.W.3d 462 (Tex. 2017) (pleadings and affidavits treated as evidence for TCPA burden analysis)