ANNA ABATECOLA, ROBERT ABATECOLA, HI-TECH CONCRETE PUMPING SERVICES PCD, LLC AND ABATECOLA LEASING, Appellants
2 SAVAGES CONCRETE PUMPING, LLC AND JOSEPH LOWRY, INDIVIDUALLY, Appellees
Appeal from the 212th District Court Galveston County, Texas
Trial Court Cause No. 17-CV-0186
consists of Justices Brett Busby, Brown, and Jewell.
W. Brown Justice
an interlocutory appeal from the trial court's order
denying a motion to dismiss based on the Texas Citizens'
Participation Act ("TCPA"). Tex. Civ. Prac. &
Rem. Code Ann. §§ 27.001-.011 (West 2017). We
affirm the trial court's denial of the motion to dismiss
with regard to tortious interference claims based on
continued employment and interference with customers. We
conclude the trial court erred by denying the motion to
dismiss 2 Savages' tortious interference claim based on
hiring, by denying the motion to dismiss as moot with regard
to nonsuited claims, and by ordering an award of
attorney's fees and costs.
Lowry and Chad MacDonald created a concrete pumping company
known as 2 Savages Concrete Pumping LLC ("2
Savages") in August 2016. In October 2016, MacDonald
entered into a Company Agreement with Lowry which contained
non-competition, non-solicitation, and non-disclosure
provisions. 2 Savages and Lowry broadly refer to these
restrictive covenants collectively as "the Non-Compete
Contract" or "the Non-Compete Agreement."
early February 2017, the business relationship between Lowry
and MacDonald "unraveled," and on February 14,
2017, Lowry and 2 Savages filed suit against MacDonald. In
the original petition, Lowry and 2 Savages asserted claims
against MacDonald for breach of fiduciary duty, breach of
contract, libel, theft, and negligent misrepresentation.
March 13, 2017, Hi-Tech Concrete Pumping Services PCD, LLC
("HiTech") hired Chad MacDonald as a pump operator.
Soon thereafter, Lowry noticed that "several of 2
Savages usual customers began having their jobs handled by
HiTech." 2 Savages and Lowry amended their petition to
include tortious interference causes of action against
Hi-Tech; its owners, Anna and Robert Abatecola; and Abatecola
Leasing, an entity that buys equipment and leases it to
Hi-Tech (collectively, "the Hi-Tech Parties"). 2
Savages and Lowry asserted the Hi-Tech Parties tortiously
interfered with the restrictive covenants in the Company
Agreement and 2 Savages' agreements with its customers.
The allegations against the Hi-Tech Parties were limited to
four paragraphs. After referencing and quoting some of the
restrictive covenants, the first amended petition stated:
On or about March 14, 2017, the undersigned sent a Cease and
Desist letter to Defendant, Hi-Tech Concrete Pumping Company,
Inc. advising them of the "Non-Compete" contract
between Plaintiffs and Defendant, Chad MacDonald. [The
Hi-Tech Parties] were warned about their interference with
Plaintiffs [sic] customers and contracts and that they were
encouraging, abetting and enabling the violation of the
Upon information and belief, [the Hi-Tech Parties] hired
Defendant, Chad MacDonald to work for them after being
informed of the Non-Compete Agreement they continued to
employ Chad MacDonald in violation of the Agreement and to
enrich themselves. In doing so, [the Hi-Tech Parties]
interfered with 2 Savages [sic] contractual agreement with
Chad MacDonald (i.e. Non-Compete contract) and interfered
with 2 Savages [sic] contractual agreement with its
Specifically, [the Hi-Tech Parties] have conspired with
Defendant Chad MacDonald to violate and interfere with the
Non-Compete Contract between himself and 2 Savages. As a
result, Plaintiffs have lost business income and will
continue to lose business income until the Court orders all
Defendants to cease from such activity.
Hi-Tech Parties filed a motion to dismiss the claims against
them under the TCPA. The motion asserted that the TCPA
applied to the tortious interference claims because the
claims were based on, related to, or were in response to the
HiTech Parties' exercise of their right to association
and right to free speech. The motion argued that 2 Savages
and Lowry could not meet their burden under the TCPA, and
therefore, the tortious interference claims should be
dismissed with prejudice, and the Hi-Tech Parties should
recover attorney's fees, court costs, and expenses. The
affidavit of Robert Abatecola was attached in support of the
affidavit, Robert described Hi-Tech as a "family owned
concrete pumping company," "one of the largest
concrete pumping services in the greater Houston area,"
and a competitor of 2 Savages. With regard to Chad MacDonald,
Robert admitted, "We communicated with MacDonald as a
potential employee and as an employee in furtherance of
Hi-Tech's concrete pumping business." With regard to
customers, Robert admitted, "We communicated with
customers on jobs that MacDonald worked in furtherance of
Hi-Tech's services of providing concrete pumping and
pumping operators." Robert also pointed out,
"MacDonald resigned two-weeks [after his hire] on March
3, 2017, 2 Savages and Lowry amended their petition a second
time, removing the Abatecolas and Abatecola
Leasing as defendants. In addition to removing these
defendants, the second amended petition slightly clarified
the middle paragraph of the tortious interference allegations
Upon information and belief, Defendant Hi-Tech hired
Defendant MacDonald to work for it and--after being informed
of the Non-Compete Agreement--they continued to employ Chad
MacDonald in violation of the Agreement and to enrich
themselves. In doing so, Defendant Hi-Tech has interfered
with 2 Savages [sic] contractual agreement with its
same day, 2 Savages and Lowry filed a nonsuit, dismissing
their claims against the Abatecolas and Abatecola Leasing
without prejudice. Also on the same day, 2 Savages and Lowry
filed their response to the Hi-Tech Parties' motion to
dismiss. As the claims against the Abatecolas and Abatecola
Leasing had been nonsuited, the response only asked the trial
court to deny Hi-Tech's motion to dismiss.
response argued that the TCPA did not apply to proprietary
information, trade secrets, non-compete agreements, or
commercial activity. The response alternatively argued that 2
Savages and Lowry could meet their burden under the TCPA. The
response requested recovery of attorney's fees and costs.
Joseph Lowry's affidavit was attached in support of the
affidavit, Lowry identified Hi-Tech as a "direct
competitor of 2 Savages." Lowry asserted that even after
he had informed the Abatecolas and HiTech of MacDonald's
restrictive covenants, Hi-Tech continued to employ MacDonald,
"steal" 2 Savages' customers, use 2
Savages' proprietary data against it, and
"attack" 2 Savages' business. Lowry described 2
Savages' business losses:
Immediately after Chad MacDonald was hired [by Hi-Tech], I
noticed that several of 2 Savages [sic] usual customers began
having their jobs handled by Hi-Tech after Chad MacDonald
went over there. Customers (and job values) that I believe
were now having their concrete poured by Hi-Tech were: KWM
Houston ($2, 000.00), Lamson Construction ($1, 800.00),
Merryland Houston ($2, 500.000 [sic] and Olivan Construction
($11, 500.00). I personally spoke with the franchise owner of
the Galveston Double Tree Hospitality Hotel who informed me
that Hi-Tech poured their concrete job, which I had valued at
2 Savages lost tens of thousands of dollars in jobs over the
next few weeks. Those customers have not returned and may
never return. 2 Savages has been severely damaged by
Hi-Tech's interference with the valid, binding Agreement.
. . .
The effect of Hi-Tech's misappropriation of 2
Savages' data was so immediate and strong that I knew
about Chad MacDonald's hiring and damage to the business,
literally, within 24 hours.
also averred in his affidavit that Hi-Tech tortiously
interfered by using its relationship with MacDonald to
approach and hire away other 2 Savages personnel in violation
of MacDonald's restrictive covenants. Further, while
MacDonald was employed by Hi-Tech, "it had him going
online and attacking my business, approaching my customers,
disparaging my business." Lowry contends, "Hi-Tech
pumped [MacDonald] for confidential proprietary information
about my customers, pricing, and jobs" and "[e]ven
though Hi-Tech has terminated Chad MacDonald, it is still
damaging 2 Savages' business by using the proprietary
information it stole."
5, 2017, Lowry filed a nonsuit on his claims against Hi-Tech.
The only remaining claims asserted against the Hi-Tech
Parties in the second amended petition were 2 Savages'
tortious interference claims against Hi-Tech.
6, 2017, the Hi-Tech Parties filed a reply in support of
their motion to dismiss. The Hi-Tech Parties argued that the
nonsuited parties maintained a right to recover
attorney's fees and a dismissal with prejudice pursuant
to the TCPA.
7, 2017, the trial court signed two orders nonsuiting,
without prejudice, the claims asserted against the Abatecolas
and Abatecola Leasing, as well as Lowry's claim against
some additional briefing and hearings, the trial court signed
an order denying the Hi-Tech Parties' motion to dismiss
on August 4, 2017. In the order, the court found that the
Abatecolas and Abatecola Leasing "have been non-suited
and dismissed without prejudice from this case, and that
Defendant [Hi-Tech] is the sole moving defendant in this
motion to dismiss under the Texas Citizens Participation
Act." Consequently, the court only ruled on the merits
of the motion to dismiss as it pertained to claims against
Hi-Tech. In support of its denial, the court made the
The Court . . . finds Plaintiff sued Defendant Chad MacDonald
for violating, and Defendant [Hi-Tech] for tortuously [sic]
interfering with, a written Non-Disclosure, Trade Secrets,
and Non-Competition Agreement.
The Court further finds that the allegations in
Plaintiff's live pleadings are for contractual
protection of proprietary information and trade secrets,
and are therefore not subject to TCPA application.
The Court further finds that the Non-Disclosure, Trade
Secrets, and Non-Competition Agreement sued upon by
Plaintiffs herein is not subject to TCPA application.
The Court further finds that the [TCPA] does not apply to
commercial activity, as described in Tex. Civ. Prac. &
Rem. Code § 27.010(b), which states it does not apply
to: "a legal action brought against a person primarily
engaged in the business of selling . . . goods or services,
if the statement or conduct arises out of the sale of goods
or services, . . . or a commercial transaction in which the
intended audience is an actual or potential buyer of
The Court further finds that the Defendant, [Hi-Tech], knew
or should have known of the exclusion under the TCPA
(described herein), and awards attorney fees, expenses and
court costs to Plaintiffs for their defense of this motion.
Plaintiffs are ORDERED to submit evidence of reasonable
attorney fees, expenses and court costs by affidavit within
days from the date of this order.
Savages and Lowry's attorney submitted an affidavit and
request for attorney's fees, the Hi-Tech Parties objected
to the request for attorney's fees, arguing, among other
things, that there had been no finding that the motion to
dismiss had been frivolous or solely intended for delay. This
interlocutory appeal followed.
Hi-Tech Parties bring five issues on appeal. They assert the
trial court erred by: (1) finding that the TCPA did not
apply; (2) denying the motion to dismiss "on the basis
that [2 Savages] met [its] burden to prove that the
commercial speech exemption applied"; (3) holding
Hi-Tech liable for attorney's fees and costs based on an
incorrect standard; (4) denying the motion to dismiss because
2 Savages did not prove a prima facie case of the elements of
its claims, as required by the TCPA; and (5) denying, by
operation of law, the motion to dismiss as it applied to
TCPA Framework and Standard of Review
TCPA, codified in chapter 27 of the Civil Practice and
Remedies Code, protects citizens from retaliatory lawsuits
that seek to silence or intimidate them on matters of public
concern. In re Lipsky, 460 S.W.3d 579, 586 (Tex.
2015) (orig. proceeding); see generally Tex. Civ.
Prac. & Rem. Code Ann. §§ 27.001-.011. The
statute is an anti-SLAPP law, with "SLAPP" being
the acronym for "Strategic Lawsuits Against Public
Participation." See Fawcett v. Grosu, 498
S.W.3d 650, 654 (Tex. App.-Houston [14th Dist.] 2016, pet.
denied). The purpose of the statute is 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 at 589; see also Tex.
Civ. Prac. & Rem. Code Ann. § 27.002. However, the
TCPA is broadly worded, and as a result, it has been very
Texas courts' brief history of applying the broadly
worded TCPA has not limited application of the Act's
protections to weighty issues of great public concern. The
dismissal mechanism of the statute has been applied in cases
for fraud and barratry, a suit for contamination of a water
well, a dispute between neighbors over a fence, defamation
claims arising from an employment dispute, a snarl of
competing claims arising from discussions among horse
breeders on social media, and a host of other types of
Long Canyon Phase II & III Homeowners Assoc., Inc. v.
Cashion, 517 S.W.3d 212, 216-17 (Tex. App.-Austin 2017,
no pet.) (citations omitted).
TCPA provides a two-step process to expedite the dismissal of
a "legal action" that is "based on, relates
to, or is in response to a party's exercise of the right
of free speech, right to petition, or right of
association." Tex. Civ. Prac. & Rem. Code Ann.
§ 27.003(a). First, the movant seeking dismissal under
the TCPA must "show[ ] by a preponderance of the
evidence that the [nonmovant's] legal action is based on,
relates to, or is in response to the [movant]'s exercise
of: (1) the right of free speech; (2) the right to petition;
or (3) the right of association." Id. §
27.005(b). Second, if the movant makes that showing, the
burden shifts to the nonmovant to "establish[ ] by clear
and specific evidence a prima facie case for each essential
element of the claim in question" to avoid
dismissal. Id. § 27.005(c).
TCPA exempts certain types of legal actions from its
application. See id. § 27.010. In this case,
the only pertinent exemption is the "commercial
speech" exemption found in section 27.010(b). Section
This chapter does not apply to a legal action brought against
a person primarily engaged in the business of selling or
leasing goods or services, if the statement or conduct arises
out of the sale or lease of goods, services, or an insurance
product, insurance services, or a commercial transaction in
which the intended audience is an actual or potential buyer
Id. The nonmovant bears the burden of proving the
statutory exemption. Deaver v. Desai, 483 S.W.3d
668, 673 (Tex. App.-Houston [14th Dist.] 2015, no pet.).
"evidence" the trial court "shall
consider" in "determining whether a legal action
should be dismissed" under the TCPA expressly includes
"the pleadings and supporting and opposing affidavits
stating the facts on which the liability or defense is
based." Tex. Civ. Prac. & Rem. Code Ann. §
27.006(a). "The TCPA contemplates primary reliance on
such proof." Lona Hills Ranch, LLC v. Creative Oil
& Gas Operating, LLC, __ S.W.3d __, No.
03-17-00743-CV, 2018 WL 1868054, at *3 (Tex. App.-Austin Apr.
19, 2018, no pet.) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 27.006(a) and Hersh v. Tatum, 526 S.W.3d
462, 467 (Tex. 2017) ("The basis of a legal action is
not determined by the defendant's admissions or denials
but by the plaintiff's allegations . . . . When it is
clear from the plaintiff's pleadings that the action is
covered by the Act, the defendant need show no more.")
(internal footnotes omitted)).
review de novo whether claims are covered by the TCPA.
Deaver, 483 S.W.3d at 672. We also review de novo
issues of statutory construction. ExxonMobil Pipeline Co.
v. Coleman, 512 S.W.3d 895, 899 (Tex. 2017) (per