606 S.W.3d 41
Tex. App.2020Background
- Fox Corporate Housing hired Misty Hawkins as a Senior Account Executive; she later signed a non-disclosure agreement and a two-year, 250-mile non-compete with non-solicitation terms.
- Fox alleges Hawkins was terminated and then took a sales role at competitor Express Corporate Housing, using Fox customer contacts and confidential information.
- Fox sued Hawkins for breach of the non-compete and non-disclosure agreements, sought injunctive relief and attorney’s fees, and alleged loss of business (about $3.5 million annually).
- Hawkins filed an early motion to dismiss under the Texas Citizens Participation Act (TCPA); the trial court denied the motion.
- On interlocutory appeal the First Court of Appeals affirmed, holding Fox established the TCPA’s commercial-speech exemption and thus the TCPA did not bar Fox’s suit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of the TCPA (motion to dismiss) | Fox: TCPA does not apply because this is commercial speech exempt from the TCPA | Hawkins: TCPA applies; her conduct is protected speech/association and requires dismissal | Held: Commercial-speech exemption applies; TCPA does not bar the suit; denial affirmed |
| Element 1 of commercial-speech exemption — was Hawkins "primarily engaged in the business" of selling services? | Fox: Hawkins, as a sales executive, is primarily engaged in selling the same services for Express | Hawkins: An individual employee is not a business and therefore cannot satisfy the element | Held: Satisfied — an employee performing similar sales services meets this element |
| Elements 2–4 — communications made in seller capacity, arising from a commercial transaction, and targeted to customers | Fox: Hawkins solicited Fox customers and used confidential/pricing info in her capacity as a seller at Express | Hawkins: Her communications are protected or not commercial in the relevant sense | Held: Satisfied — communications were made as a seller, arose from commercial transactions for the same services, and targeted actual/potential customers |
| Evidentiary objections to Fox’s affidavit and emails | Hawkins: Trial court erred by overruling objections to affidavit and exhibits | Fox: Court may rely on factual allegations in pleadings to meet its burden under the exemption | Held: Court declined to resolve the evidentiary objections because Fox’s pleadings alone suffice; affirmed on exemption ground |
Key Cases Cited
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA purpose and summary dismissal framework)
- Castleman v. Internet Money Ltd., 546 S.W.3d 684 (Tex. 2018) (elements of TCPA commercial-speech exemption)
- Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865 (Tex. App.—Austin 2018) (reliance on pleadings and TCPA record to satisfy exemption elements)
- Greer v. Abraham, 489 S.W.3d 440 (Tex. 2016) (a plaintiff’s pleadings can supply the factual basis needed under the TCPA)