Opinion issued March 23, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-22-00097-CV
———————————
ADIEL WHILLY TIEDJOP, GREGORY JETHUR NGUENANG, AND
EILEEN ACUNA VELASQUEZ, Appellants
V.
THE VOLLEYBALL SCHOOL LLC, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2021-47777
MEMORANDUM OPINION
Appellants—Adiel Whilly Tiedjop, Gregory Jethur Nguenang, and Eileen
Acuna Velasquez—filed a motion under the Texas Citizens Participation Act
(TCPA) to dismiss the breach-of-contract claims filed against them by appellee The
Volleyball School LLC. See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011.1
Appellants asserted that the TCPA required dismissal of the breach-of-contract
claims because The Volleyball School had filed the claims “in response to”
Appellants’ right to petition. See id. § 27.005(b). The trial court signed an order
denying the motion, and Appellants filed this interlocutory appeal challenging it.2
Because they did not demonstrate that the breach-of-contract claims were
filed “in response to” their right to petition, Appellants failed to meet their threshold
burden to show that the TCPA applied to those claims. Accordingly, the trial court
did not err in denying Appellants’ TCPA motion to dismiss, and we affirm the order.
Background
On August 5, 2021, The Volleyball School filed suit against Appellants. In its
original petition, The Volleyball School described itself as “a volleyball training
company that offers unique training programs to volleyball players at every level of
the game.” It stated that it “has a unique business model” because it “was the first
‘school’ of its kind” to focus on the development of volleyball players “as opposed
to [offering] league play” at volleyball clubs. The Volleyball School’s “programs
1
In 2019, the Texas Legislature amended the TCPA. The amendments became
effective September 1, 2019. Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 11–
12, 2019 Tex. Sess. Law Serv. 684, 687. Because this suit was filed after that date,
all citations to the TCPA refer to the amended statute.
2
See TEX. CIV. PRAC. & REM. CODE § 51.014(a)(12) (permitting interlocutory appeal
of order denying TCPA motion to dismiss).
2
were developed with countless hours of planning, development, and customer
feedback.” The Volleyball School started in 2017, and by 2019, it “had achieved
monthly attendance of more than 1,000 students,” possessing “an extensive customer
list, including demographic data that allowed it to plan targeted expansion.”
Appellants worked as coaches at The Volleyball School. The Volleyball
School alleged that, through their positions with the school, Appellants had access
to its customer list and “to the internal lesson plans behind The Volleyball School’s
unique services.” The Volleyball School claimed that, while they were still working
there, Appellants “began secretly plotting to start a competing school with the
information developed by The Volleyball School.”
The Volleyball School alleged that it had learned that Appellants were
“launching” their own volleyball school named StepByStep Volleyball School,
LLC. The Volleyball School asserted that StepByStep “appears to be a carbon copy
of the business model that [Appellants] were given access to while they were
coaching with The Volleyball School.” It claimed that Appellants were “using The
Volleyball School’s customers lists and other confidential information.” And it
alleged that Appellants were “attempting to capitalize on the recognition The
Volleyball Ball School ha[d] obtained in the Houston area by mirroring its logo,
3
selecting a similar name, and creating a deceptively similar website.” The Volleyball
School also included StepByStep as a defendant.3
In its original petition, The Volleyball School asserted common-law causes of
action against Appellants for breach of fiduciary duty, unfair competition by
misappropriation, and conspiracy. It also sued Appellants for violating the Texas
Uniform Trade Secrets Act (TUTSA).4 The Volleyball School sued StepByStep for
unfair competition by misappropriation, conspiracy, and violating TUTSA.
On November 11, 2021, Appellants and StepByStep filed a motion for partial
summary judgment regarding The Volleyball School’s breach of fiduciary duty,
unfair competition by misappropriation, and conspiracy causes of action. In the
motion, Appellants and StepByStep asserted that those causes of action should be
dismissed because they were preempted by TUTSA.
On December 6, 2021, The Volleyball School filed a response to the motion
for partial summary judgment. That same day, it amended its petition, adding a
breach-of-contract claim against each of the three Appellants (but not StepByStep).
The Volleyball School alleged that it had separate contracts with Appellants
Nguenang, Vasquez, and Tiedjop and that each contract contained a non-compete
provision. More particularly, The Volleyball School claimed that Nguenang’s and
3
StepByStep is not a party in this interlocutory appeal.
4
See TEX. CIV. PRAC. & REM. CODE §§ 134A.001–.008.
4
Vasquez’s contracts prohibited them from contacting or providing “any volleyball
related services” to The Volleyball School’s customers “for 12 months after
termination.” The Volleyball School alleged that Tiedjop had agreed that The
Volleyball School’s customer information was the school’s property and that the
information would remain confidential. It alleged that Tiedjop had also agreed not
“[to] solicit or engage in any business activity with [its] customers or vendors” for
one year after he left.
The Volleyball School claimed that it had performed under the contracts by,
among other things, paying Appellants for their coaching services. It alleged that
Nguenang and Vasquez had breached their contracts “by providing volleyball related
services to The Volleyball School’s customers within 12 months after [their]
termination.” It also alleged that Tiedjop had breached his contract “by soliciting
and/or engaging in business activities with the volleyball school’s customers and/or
vendors” and “by taking and using confidential property of The Volleyball School.”
The Volleyball School asserted that Appellants’ breaches of contract had caused it
to incur damages.
On December 14, 2021, the trial court signed an order granting Appellants’
and StepByStep’s motion for partial summary judgment. The order dismissed The
Volleyball School’s breach of fiduciary duty, unfair competition by
misappropriation, and conspiracy causes of action because they were preempted by
5
TUTSA. At that point, the TUTSA claims against Appellants and StepByStep and
the breach-of-contract claims against Appellants remained pending.
A week later, Appellants and StepByStep filed a motion to dismiss The
Volleyball School’s breach-of-contract claims against Appellants under the TCPA.
The TUTSA claims were not included in the motion. Appellants and StepByStep
asserted that the breach-of-contract claims should be dismissed under the TCPA
because the claims were filed in response to the exercise of Appellants’ right of
petition. Specifically, they claimed that the filing of their motion for partial summary
judgment qualified as an exercise of their right of petition and that The Volleyball
School’s breach-of-contract claims were in response to the motion.
The Volleyball School contended that Appellants and StepByStep had not met
their burden to show that the TCPA applied to its breach-of-contract claims. It also
argued that its breach-of-contract claims were statutorily exempted under the TCPA.
Finally, The Volleyball School asserted that, even if the TCPA applied, it had offered
sufficient prima facie proof of its breach-of-contract claims to defeat the TCPA
motion to dismiss.
Following a hearing, the trial court signed an order denying the TCPA motion
to dismiss The Volleyball School’s breach-of-contract claims. Appellants now
appeal that ruling in two issues. StepByStep did not appeal.
6
Denial of TCPA Motion
In their first issue, Appellants challenge the trial court’s denial of their motion
to dismiss The Volleyball School’s breach-of-contract claims under the TCPA.
A. Statutory Framework & Standard of Review
The TCPA protects citizens who associate, petition, or speak on matters of
public concern from retaliatory lawsuits that seek to intimidate or silence them. See
TEX. CIV. PRAC. & REM. CODE § 27.002. That protection comes in the form of a
“special motion to dismiss . . . for any suit that appears to stifle the defendant’s
exercise of those rights.” Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018)
(internal quotation marks omitted).
Review of a TCPA motion to dismiss is a three-step process. See Montelongo
v. Abrea, 622 S.W.3d 290, 296 (Tex. 2021). In the first step, the movant must show
that the TCPA applies. See TEX. CIV. PRAC. & REM. CODE § 27.005(b). To meet this
burden, a movant must demonstrate that the legal action is based on or is in response
to the movant’s exercise of one of the rights listed in section 27.005(b), including
the right of petition. See id. §§ 27.003(a), 27.005(b)(1)(A).
If the first step is met—that is, the movant shows that the TCPA applies—
then the burden shifts to the non-movant under the second step to establish “by clear
and specific evidence a prima facie case for each essential element” of his claim. Id.
§ 27.005(c). Under the third step—even if the non-movant satisfies the second
7
step—the court will nonetheless dismiss the legal action “if the moving party
establishes an affirmative defense or other grounds on which the moving party is
entitled to judgment as a matter of law.” Id. § 27.005(d).
We review de novo the denial of a TCPA motion to dismiss. Holcomb v.
Waller Cnty., 546 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.] 2018, pet.
denied). We likewise interpret the TCPA and decide whether it applies to a legal
action de novo. See Youngkin, 546 S.W.3d at 680. When determining “whether a
legal action is subject to or should be dismissed under [the TCPA], the court shall
consider the pleadings, evidence a court could consider under Rule 166a, Texas
Rules of Civil Procedure, and supporting and opposing affidavits stating the facts on
which the liability or defense is based.” TEX. CIV. PRAC. & REM. CODE § 27.006(a).
We view the pleadings and evidence in the light most favorable to the nonmovant.
Kassab v. Pohl, 612 S.W.3d 571, 577 (Tex. App.—Houston [1st Dist.] 2020, pet.
denied).
B. TCPA’s Applicability
To meet their burden under the first step, Appellants asserted that The
Volleyball School’s breach-of-contract claims were a legal action in response to
Appellants’ exercise of the right of petition, namely, their motion for partial
summary judgment. See TEX. CIV. PRAC. & REM. CODE § 27.005(b)(1)(B). The
TCPA defines a “legal action” to include “a cause of action,” id. § 27.001(6), and an
8
“exercise of the right to petition” to include “a communication in or pertaining
to . . . a judicial proceeding,” id. § 27.001(4)(A)(i). “Communication” is defined, in
part, as “the making or submitting of a statement or document in any form or
medium, including oral, visual, written, audiovisual, or electronic.” Id. § 27.001(1).
Given these definitions, the parties do not dispute that The Volleyball School’s
breach-of-contract cause of action against Appellants was a “legal action” or that
Appellants exercised their right of petition by filing the motion for partial summary
judgment. Instead, the parties dispute whether Appellants met their TCPA burden of
demonstrating that The Volleyball School’s breach-of-contract claims against them
were in response to their motion for partial summary judgment.5 See TEX. CIV. PRAC.
& REM. CODE § 27.005(b)(1)(B).
Appellants contend that The Volleyball School’s breach-of-contract claims
were in response to Appellants’ motion for partial summary judgment because they
were filed subsequently to the filing of the motion for partial summary judgment on
the same day that The Volleyball School filed its response to the motion. We note
that we rejected a similar argument in Pierce v. Stocks, No. 01-18-00990-CV, 2019
5
As mentioned, a movant may show that the TCPA applies by demonstrating that
“the legal action is based on or is in response to” its exercise of the right of petition.
TEX. CIV. PRAC. & REM. CODE § 27.005(b)(1)(B) (emphasis added). Here,
Appellants relied on the “response to” language to demonstrate the TCPA’s
applicability to The Volleyball School’s breach-of-contract claims. In their reply
brief, Appellants state, “To be clear, the Appellants do not rely on the ‘based on’
language of the TCPA.”
9
WL 3418513, at *5 (Tex. App.—Houston [1st Dist.] July 30, 2019, no pet.) (mem.
op.).
In Pierce, Stocks, a surgeon, sued Pierce, the former chief operating officer
of Stock’s medical practice group, for fraud and breach of fiduciary duty. See id. *1.
Stocks filed the lawsuit about one month after Pierce had sued Stock’s medical
practice in federal court for age, disability, and gender discrimination. See id. Pierce
filed a TCPA motion to dismiss Stock’s lawsuit, arguing that the lawsuit violated
her exercise of right of petition because it was in response to her federal lawsuit
against Stock’s clinic. Id.
On appeal, we affirmed the trial court’s denial of Pierce’s TCPA motion. Id.
at *5. We rejected Pierce’s argument that Stock’s lawsuit “was in response to her
federal lawsuit because it was asserted subsequently in time,” recognizing that
“[t]here are myriad reasons for deciding if and when to bring a legal action against
a person.” Id. (quoting Beving v. Beadles, 563 S.W.3d 399, 408 (Tex. App.—Fort
Worth 2018, pet. denied)). We explained that “[m]erely arguing post hoc ergo
propter hoc will not satisfy” a movant’s burden to demonstrate that the legal action
was filed in response to the movant’s exercise of her right of petition.6 Id. We stated
that was particularly true in Pierce because Stocks’s lawsuit was “premised on
6
Post hoc, ergo propter hoc means “after this, therefore because of this.” See Post
hoc, Black’s Law Dictionary (11th ed. 2019).
10
conduct that occurred well before Pierce filed her federal lawsuit.” Id. The same is
true here. The Volleyball School’s breach-of-contract claims are premised on
conduct that occurred well before Appellants filed the motion for partial summary
judgment.
As touched on by Pierce, this Court has recognized that “[t]he party seeking
dismissal must demonstrate that the legal action is ‘factually predicated’ on conduct
that falls within the scope of the right of free speech, right of association, or right to
petition as statutorily defined.”7 Jetall Companies, Inc. v. Sonder USA Inc., No. 01-
21-00378-CV, 2022 WL 17684340, at *15 (Tex. App.—Houston [1st Dist.] Dec. 15,
2022, no pet.) (mem. op.); see Porter-Garcia v. Travis Law Firm, P.C., 564 S.W.3d
75, 85 (Tex. App.—Houston [1st Dist.] 2018, pet. denied) (“The TCPA’s ‘is based
on, relates to, or is in response to’ language captures, at a minimum, a ‘legal action’
that is factually predicated upon or relates to8 alleged conduct that would fall within
7
Other appellate courts have recognized this principle as well. See, e.g., Enter. Crude
GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283, 296 (Tex. App.—Houston [14th
Dist.] 2020, no pet.) (stating that TCPA “at least” requires legal action to be
factually predicated on TCPA-protected right); Dyer v. Medoc Health Servs., LLC,
573 S.W.3d 418, 429 (Tex. App.—Dallas 2019, pet. denied) (“In order to trigger
the TCPA’s protection, the legal action must be factually predicated on the alleged
conduct that falls within the scope of the TCPA’s definition of exercise of the right
of free speech, petition, or association.”) (cleaned up)).
8
In its 2019 amendments, the legislature removed the phrase “relates to” from the
TCPA. See Act of May 17, 2019, 86th Leg., R.S., ch. 378, §§ 2–3, 2019 Tex. Sess.
Law Serv. 684, 685 (reflecting removal of phrase “relates to” in TCPA sections
27.003(a) and 27.005(b)).
11
the TCPA’s definition of exercise of the right to petition.”). Here, The Volleyball
School’s amended petition shows that its breach-of-contract claims were not
factually predicated on Appellants’ motion for partial summary judgment. See Hersh
v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (stating that plaintiff’s petition is “the
best and all-sufficient evidence of the nature of the action”).
As discussed, to support it breach-of-contract claims, The Volleyball School
relied on facts that all pre-dated the filing of Appellants’ motion for partial summary
judgment. Specifically, in its amended petition, The Volleyball School alleged that
it had separate contracts with Appellants Nguenang, Vasquez, and Tiedjop. It
claimed that Nguenang’s and Vasquez’s contracts prohibited them from contacting
or providing “any volleyball related services” to The Volleyball School’s customers
for 12 months after their termination. And it alleged that Tiedjop had agreed that the
school’s customer information was its confidential property and would remain so. It
claimed that Tiedjop had also agreed not to solicit the school’s customers or vendors
for one year after his departure. The Volleyball School asserted that Appellants had
breached these provisions of the contracts causing it damages.
On appeal, Appellants argue that The Volleyball School filed its amended
petition adding the breach-of-contract claims because it was “faced with the
dismissal of a majority of [its] claims against Appellants” by way of their partial
summary-judgment motion. But, as we recognized in Pierce, there are many factors
12
affecting if or when a plaintiff files a claim against another party. See Pierce, 2019
WL 3418513, at *5. And, most importantly, The Volleyball School’s amended
petition reflects that its breach-of-contract claims were not factually predicated on
Appellants’ filing of the motion for partial summary judgment.
In its amended petition, The Volleyball School did not mention Appellants’
motion for partial summary judgment to support its breach-of-contract claims or
otherwise reference the motion. Instead, the breach-of-contract claims were factually
predicated on Appellants’ conduct or communications occurring before Appellants
exercised their right of petition, that is, before they filed their motion for partial
summary judgment. Thus, we conclude that Appellants did not meet their threshold
burden to demonstrate that the TCPA applied to The Volleyball School’s breach-of-
contract claims. See TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 27.005(b)(1)(A);
see also Pierce, 2019 WL 3418513, at *5; Willow Creek Golf Club, Inc. v. Willow
Creek Mgmt., Inc., No. 14-21-00727-CV, 2023 WL 166836, at *6 (Tex. App.—
Houston [14th Dist.] Jan. 12, 2023, no pet.) (mem. op.) (“The TCPA does not apply
. . . to the parts of [Tenant’s breach-of-contract] claims factually predicated on
Landlord’s conduct or communications occurring before Landlord exercised its right
to petition by filing the forcible detainer lawsuit.”); Beving, 563 S.W.3d at 408
(rejecting argument that third-party petition was based on defendant’s affidavit and
13
deposition testimony because causes of action in third-party petition arose out of
facts occurring well before her affidavit and deposition).
We hold that the trial court did not err in denying Appellants’ TCPA motion
to dismiss. We overrule Appellants’ first issue, which is dispositive of the appeal.9
Conclusion
We affirm the trial court’s order denying Appellants’ motion to dismiss The
Volleyball School’s breach-of-contract claims under the TCPA.
Richard Hightower
Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.
9
Because they failed to meet their threshold TCPA burden, we need not reach
Appellants’ other first-issue arguments in which they assert that The Volleyball
School did not meet its TCPA burden. Nor need we reach Appellants’ second issue,
challenging an evidentiary ruling. See TEX. R. APP. P. 47.1.
14
Adiel Whilly Tiedjop, Gregory Jethur Nguenang and Eileen Acuna Velasquez v. the Volleyball School LLC
Combined Opinion