Opinion issued November 24, 2020
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-19-00116-CV
———————————
BILLY HELVESTON, RELIABLE BUSINESS RESOURCE, LLC, KEVIN
NGUYEN, ROBERT BOWERS, AND ALBA EDM, INC., Appellants
V.
BSL INDUSTRIES INC. AND PACIFIC MANUFACTURING INC.,
Appellees
On Appeal from the 269th District Court
Harris County, Texas
Trial Court Case No. 2018-56648
MEMORANDUM OPINION
BSL Industries Inc. (“BSL”) and Pacific Manufacturing Inc. (“Pacific”)
(collectively, “appellees”) sued former employees, Billy Helveston, Kevin Nguyen,
and Robert Bowers, and two competitors, Reliable Business Resources, LLC
(“RBR”) and Alba EDM, Inc. (“Alba”) (collectively, “appellants”), for conduct
related to the alleged misappropriation of appellees’ trade secrets and confidential
information. Appellants moved to dismiss the claims under the Texas Citizens
Participation Act (“TCPA”),1 but the trial court denied their motions. In this
interlocutory appeal, appellants contend the trial court erred by refusing to dismiss
appellees’ claims under the TCPA.
We affirm.
Background
Appellees are self-described “affiliated corporations that manufacture
component parts for the oil, gas[,] and aerospace industries.” In August 2018,
appellees sued three former employees—Helveston, Nguyen, and Bowers. They
also sued RBR, a limited liability company and former supplier of BSL, and Alba, a
limited liability company formed by Bowers.
Appellees alleged that BSL hired Bowers as its President in April 2015 and
that, pursuant to his employment agreement, Bowers “agreed to confidentiality with
regard to BSL’s confidential and proprietary information, including but not limited
1
See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. The Legislature amended the
TCPA in June 2019, but the amendments apply only to an action filed on or after
September 1, 2019. Because this suit was filed in August 2018, the 2019
amendments to the TCPA do not apply. The TCPA as it existed before
September 1, 2019 is referenced in this memorandum opinion.
2
to information relating to [BSL and Pacific’s] customers, suppliers, component part
pricing, manufacturing processes, marketing strategies, and pricing for the ultimate
purchase of BSL products.” Bowers also agreed to a non-compete provision
providing that, for a specified time after the end of his employment, he would not
compete with BSL.
Appellees further alleged in their suit that Nguyen, who was hired by BSL in
June 2017, and Helveston, who was hired as Pacific’s general manager in October
2017, signed similar confidentiality and non-compete agreements to those signed by
Bowers. Likewise, RBR, a “major supplier of BSL,” entered into a confidential
disclosure agreement prohibiting RBR from competing with BSL for its customers
for two years following BSL’s last purchase from RBR.
According to BSL and Pacific, Bowers, while president of BSL and with the
assistance of Nguyen, diverted an estimated $700,000 of funds belonging to BSL.
Allegedly, Bowers and Nguyen used the diverted funds to develop and purchase
materials for Alba, a company formed by Bowers when he worked for BSL. While
he was still an employee of BSL, Bowers received compensation from Alba.
Appellees asserted that “Bowers, through Alba EDM, directly and wrongfully
competed with BSL for customers and by selling the same component parts as sold
by BSL.” And, “Bowers conspired with Helveston and Nguyen to destroy BSL and
Pacific” by “entering into contracts on their behalf to sell products at extremely low
3
prices, and ordering equipment on behalf of BSL and/or Pacific, but diverting the
delivery of such equipment and property to Alba.”
On March 19, 2018, Bowers announced his resignation from BSL. That same
day, Bowers signed agreements on behalf of appellees purporting to release RBR
and Helveston from “their respective agreements with BSL and Pacific,” including
the non-disclosure and non-compete provisions.
Although Nguyen continued to work for BSL following Bowers’ resignation,
appellees alleged in their lawsuit that Nguyen was secretly working with the other
appellants “to wrongfully convert BSL property and equipment, including BSL’s
confidential and proprietary information, and . . . facilitate RBR and Alba EDM
competing with BSL and Pacific.” Helveston, who resigned from Pacific in 2018,
went to work for RBR and allegedly began soliciting Pacific’s customers.
Appellees claimed that this wrongful conduct destroyed their business
reputations and forced them to cease operations. Appellees pleaded various claims
against appellants, including breach of contract, breach of fiduciary duty, aiding and
abetting breach of fiduciary duty, tortious interference with prospective business
relations, tortious interference with existing contracts, fraud, conspiracy,
misappropriation of trade secrets, business disparagement, and conversion.
Appellants moved to dismiss appellees’ claims under the TCPA, arguing that
that the claims were related to appellants’ exercise of the rights of association and
4
free speech.2 Appellees responded that appellants failed to meet their burden to
show that the TCPA applies in this case and, even if they had, there was sufficient
evidence of the claims to avoid dismissal. The trial court denied appellants’ motions
to dismiss.
Dismissal under the TCPA
Appellants argue that the trial court erred by denying their TCPA motions to
dismiss because (1) they satisfied their initial burden to show that the TCPA applies
and (2) appellees failed to establish by clear and specific evidence a prima facie case
of each essential element of their claims. RBR also argues, as subsidiary issues, that
it established valid defenses to appellees’ claims and that the commercial-speech
exemption is inapplicable.3
2
Appellants also moved to strike portions of the evidence that appellees offered in
support of their responses to the TCPA motions to dismiss. Although the trial court
denied the motions to strike filed by RBR, Nguyen, Bowers, and Alba, the trial court
did not enter an order on Helveston’s motion to strike.
3
Bowers, Nguyen, and Alba further complain about the trial court’s order denying
their motion to strike. But the trial court’s orders denying appellants’ motions to
dismiss state that the trial court considered the motions, the responses, the pleadings
on file, and the argument of counsel—they do not state that the trial court considered
any of the parties’ evidence. Moreover, apart from one sentence noting that their
“objections and motions are comprehensive and clearly state the grounds the
evidence should not be admitted,” Bowers, Nguyen, and Alba make no argument
and cite to no authority in their brief to support their complaint. See Sturm v. Phil
Arms Ministries, Inc., No. 14-99-01086-CV, 2001 WL 333228, at *6 (Tex. App.—
Houston [14th Dist.] 2001, no pet.) (mem. op.) (appellant waived complaint when
it provided no argument and no authority in support in its brief).
5
A. Standard of Review
We review the denial of a TCPA motion to dismiss de novo. Better Bus.
Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). Whether the TCPA applies is an issue
of statutory interpretation that we also review de novo. Youngkin v. Hines, 546
S.W.3d 675, 680 (Tex. 2018).
B. Applicable Law
The TCPA “is a bulwark against retaliatory lawsuits meant to intimidate or
silence citizens on matters of public concern.” Dallas Morning News, Inc. v. Hall,
579 S.W.3d 370, 376 (Tex. 2019). It is intended “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 584, 589 (Tex. 2015) (orig. proceeding).
A party invoking the TCPA’s protections by filing a motion to dismiss must
show by a preponderance of the evidence that the TCPA applies. See TEX. CIV. PRAC.
& REM. CODE §§ 27.003(a), 27.005(b). The version of the TCPA that applies here
mandates the dismissal of a “legal action” that is “based on, relates to, or is in
response to the party’s exercise of (1) the right of free speech; (2) the right to
petition; or (3) the right of association.” Id. § 27.005(b); see also In re Lipsky, 460
S.W.3d at 586–87. A “legal action” can consist of an entire lawsuit. Id. § 27.001(6);
6
see also Creative Oil and Gas, LLC v. Lona Hills Ranch LLC, 591 S.W.3d 127, 131
(Tex. 2019).
Once this initial showing is made, the burden shifts to the non-movant to
establish “by clear and specific evidence a prima facie case for each essential
element of the claim in question.” TEX. CIV. PRAC. & REM. CODE § 27.005(c). The
non-movant can avoid the burden-shifting requirement by showing that one of the
TCPA’s exceptions applies, such as the commercial-speech exemption. See id.
§ 27.010(b).
Here, appellants maintain that they satisfied their initial burden to show that
the TCPA applies because they proved by a preponderance of the evidence that
appellees’ claims are based on, relate to, or are in response to appellants’ exercise of
the rights of association and free speech.4 In light of this Court’s decision in
Gaskamp v. WSP USA, Inc., 596 S.W.3d 457 (Tex. App.—Houston [1st Dist.] 2020,
pet. dism’d) (en banc), we disagree.5
4
Appellants do not argue that appellees’ claims are based on, related to, or are in
response to the appellants’ right to petition.
5
Appellees do not contest appellants’ contention on appeal that they met their initial
burden of showing that appellees’ claims are a “legal action” that is “based on,
relates to, or is in response to a party’s exercise of the right of free speech [or] the
right of association.” TEX. CIV. PRAC. & REM. CODE § 27.005(b). That, however,
does not prevent this Court from addressing the issue as raised by appellants.
Indeed, it is irrelevant that appellees have failed to address this argument in their
brief. It is appellants’ burden to demonstrate the grounds for reversal on appeal, and
our job as the reviewing court is to independently determine those grounds and
whether the TCPA applies here. See Richardson-Eagle, Inc. v. William M. Mercer,
7
C. Right of Association
When this suit was filed, the TCPA defined the “exercise of the right of
association” as “a communication between individuals who join together to
collectively express, promote, pursue, or defend common interests.” TEX. CIV. PRAC.
& REM. CODE § 27.001(2) (emphasis added). In their motions to dismiss, appellants
asserted that appellees’ claims are based on, related to, or are in response to
appellants’ alleged communications about a common interest—competing against
appellees in the marketplace. Specifically, appellants pointed to appellees’
allegations that the appellants:
• “violated their agreements with [appellees] by competing with [appellees]
and by using and disclosing [appellees’] confidential and proprietary
information”;
• “gave themselves and each other substantial assistance and encouragement
in committing various breaches of duty, with knowledge that the individual
[appellants’] conduct were breaches of duty and with the intent of assisting
and encouraging the other [appellants] to commit the breaches”;
• “abused their positions of trust by disclosing and using [appellees’]
confidential trade secret information to illegally aid [appellants] both
individually and/or jointly”;
Inc., 213 S.W.3d 469, 478 n.6 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)
(“It is irrelevant, however, that [appellee] failed to address the DTPA claims in its
brief, as an appellee need not raise cross-points or even file a brief to have this Court
consider what was presented to the trial court; the burden rests on the appellant to
establish grounds for reversal.”); Sullivan v. Booker, 877 S.W.2d 370, 373 (Tex.
App.—Houston [1st Dist.] 1994, writ denied) (rejecting appellant’s argument that
appellee waived any argument on issues on which they failed to respond on appeal
because “[a]ppellee’s failure to respond to appellants does not entitle appellants to
a reversal”).
8
• “conspired to breach their contracts with [appellees] and to breach Bowers
and Helveston’s fiduciary duties to [appellees] by planning to and having
Bowers attempt to release Helveston and RBR from their obligations to
[appellees]”;
• “conspired to divert business and customers from [appellees] to RBR in
violation of their respective agreements with [appellees]”;
• “engaged in this conspiracy in an attempt to divert all of [appellees’]
customers to competing business”; and
• “misappropriated [appellees’] trade secrets.”
According to appellants, these alleged communications implicated their right of
association.
In Gaskamp, this Court concluded that “with respect to the pre-amendment
version of the TCPA, the proper definition of ‘common’ in the phrase ‘common
interests’ [as used to define the exercise of the right of association] is ‘of or relating
to a community at large: public.’” Gaskamp, 596 S.W.3d at 476. There, the plaintiff
alleged that former employees had jointly formed a new business venture,
misappropriated trade secrets, and conspired to commit related torts to enrich
themselves. See id.
Because the allegations in Gaskamp “involved misappropriating . . . trade
secrets and conspiring to commit related torts, benefit[ing] only the five alleged
tortfeasors,” and the plaintiff’s pleading did not allege any “public or community
interests,” the Court held that the defendants did not meet their burden of showing,
9
by a preponderance of the evidence, that the plaintiff’s suit was based on, related to,
or was in response to the defendants’ exercise of the right of association. Id.
The same is true in this case. Appellees’ claims are all based on Bowers’,
Nguyen’s, and Helveston’s alleged misappropriation of confidential information,
and the sharing and communication of that confidential information with RBR and
Alba, in an attempt to develop and promote a competing business enterprise. No
“public or community interest” is alleged; rather, the allegations implicate private
interests that benefit only the private parties involved in the intended business
venture. See id.6
As such, we conclude that appellants did not meet their burden of showing by
a preponderance of the evidence that BSL and Pacific’s claims are based on, related
to, or are in response to an exercise of appellants’ right of association.
D. Right of Free Speech
In their motions to dismiss, appellants also argued that appellees’ claims were
based on the exercise of their right to free speech. The definition of “exercise of the
6
See also Griffith Techs., Inc. v. Packers Plus Energy Services, (USA), Inc.,
No. 01-18-00674-CV, 2020 WL 4354713, at *5 (Tex. App.—Houston [1st Dist.]
July 30, 2020, no pet.) (mem. op.) (holding counterclaims were not related to
exercise of right of association because claims were based on parties’ joint conduct
in developing and promoting competing business enterprise); Newpark Mats &
Integrated Services, LLC v. Cahoon Enterprises, LLC, 605 S.W.3d 671, 680 (Tex.
App.—Houston [1st Dist.] 2020, no pet.) (“Newpark’s association (internally and
externally) to express, promote, and pursue a common interest, namely, to form a
competing business, is not a public or community interest; it is a private interest that
benefits only the private parties involved in the intended business venture.”).
10
right to free speech” is “a communication made in connection with a matter of public
concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(3) (emphasis added). At the time
this suit was filed, the statutory definition of a “matter of public concern” included
“an issue related to: (A) health or safety; (B) environmental, economic, or
community well-being; (C) the government; (D) a public official or public figure; or
(E) a good, product, or service in the marketplace.” TEX. CIV. PRAC. & REM. CODE
§ 27.001(7) (emphasis added).
Appellants argued that appellees’ allegations implicate their right to free
speech because they alleged that appellants engaged in various communications
among each other, as well as with various third-party clients and vendors, about a
“good, product, or service in the marketplace.” In support, appellants pointed to
appellees’ allegations that:
• Appellants “compet[ed with] and solicit[ed] BSL customers”;
• Appellants “us[ed] and disclos[ed] BSL’s confidential and proprietary
information”;
• “RBR aided and abetted Helveston in breaching his fiduciary duty to
Pacific by having Helveston supply RBR with Pacific’s confidential
information, and by having him solicit Pacific’s customers on RBR’s
behalf”;
• Appellants redirected “opportunities to RBR and Alba EDM by making
representations to and impermissibly soliciting prospective
clients/customers of [appellees], with the intent that [appellees’] further
business relationships with these clients would not occur”;
11
• Appellants “knowingly and intentionally misrepresented their intentions
and scheme to wrongfully use and divert [appellees’] confidential
information, supplies and materials to compete with [appellees]”;
• Appellants “falsely represented to [appellees] that they were going to be
loyal employees of [appellees] and that [appellants] would do nothing to
interfere with [appellees’] business”; and
• Appellants “published false and disparaging information about [appellees]
to [appellees’] customers, clients[,] and others.”
But this Court also addressed, and rejected, similar arguments in Gaskamp,
where we concluded:
Contrary to [defendants’] reading of the statute, “not every
communication related somehow to one of the broad categories set out
in section 27.001(7) always regards a matter of public concern.” “The
words ‘good, product, or service in the marketplace’ . . . do not
paradoxically enlarge the concept of ‘matters of public concern’ to
include matters of purely private concern.” “[T]he ‘in the marketplace’
modifier suggests that the communication must have some relevance to
a public audience of potential buyers or sellers.” Although the Supreme
Court of Texas has “previously held that private communications are
sometimes covered by the TCPA[,] . . . [t]hese prior cases involved
environmental, health, or safety concerns that had public relevance
beyond the pecuniary interests of the private parties involved.”
596 S.W.3d at 476 (quoting and citing Creative Oil & Gas, 591 S.W.3d at 137).
Accordingly, Gaskamp determined that communications between former
employees related to the employees’ alleged conduct of misappropriating, sharing,
and using the plaintiff’s trade secrets and conspiring with one another in furtherance
of their tortious actions did not constitute an exercise of their free-speech rights
because these communications “had no potential impact on the wider community or
a public audience of potential buyers or sellers. In short, the communications had
12
no public relevance beyond the pecuniary interests of the private parties.” Id. at 477;
see also Creative Oil & Gas, 591 S.W.3d at 137 (“A private contract dispute
affecting only the fortunes of the private parties involved is simply not a ‘matter of
public concern’ under any tenable understanding of those words.”).
This Court also held in Gaskamp that communications made by the plaintiff’s
former employees in soliciting and procuring business from a third party did not
constitute an exercise of the employees’ free-speech rights because those
communications did not have any “relevance to a public audience of buyers or sellers
but instead were limited to ‘the pecuniary interests of the private parties involved.’”
596 S.W.3d at 479 (quoting Creative Oil & Gas, 591 S.W.3d at 136).
The same is true here. Appellants’ alleged communications amongst
themselves, and with third-party customers and vendors, are related to their alleged
misappropriation, sharing, and communication of appellees’ confidential
information in an attempt to develop and promote a competing business venture.
Like the alleged communications in Gaskamp, these communications “do not have
relevance to a public audience of buyers or sellers but instead were limited to ‘the
pecuniary interests of the private parties involved.’” Id.; see also Griffith Techs.,
Inc., 2020 WL 4354713, at *6 (concluding that plaintiffs’ communications regarding
development and promotion of competing business enterprise did not have any
public relevance “beyond the pecuniary interest of the private parties” and, thus,
13
defendants’ counterclaims were not related to plaintiffs’ exercise of right of free
speech). As such, these communications do not involve “a matter of public
concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(7)(E).
Accordingly, we conclude that appellants also did not meet their initial burden
of showing by a preponderance of the evidence that appellees’ claims are based on,
related to, or are in response to an exercise of appellants’ right of free speech.7 As a
result, appellants failed to demonstrate that the TCPA applies.
Conclusion
Because neither the exercise of the right of association nor the exercise of the
right of free speech is implicated here, the trial court did not err by denying
appellants’ TCPA motions to dismiss. We affirm the trial court’s orders.
Terry Adams
Justice
Panel consists of Chief Justice Radack and Justices Hightower and Adams.
7
Because we conclude that the TCPA does not apply, we need not address appellants’
additional arguments regarding the statute. See, e.g., Sullivan v. Tex. Ethics
Comm’n, 551 S.W.3d 848, 856 n.6 (Tex. App.—Austin 2018, pet. denied)
(“Because we hold that the TCPA does not apply, we do not reach the second step
in the TCPA analysis of whether [the non-movant] met its burden to prove a prima
facia case.”); see also TEX. R. APP. P. 47.1.
14