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Santellana v. Centimark Corp.

Court of Appeals of Texas, First District

April 2, 2019

CLIFF SANTELLANA AND GULF-TEX ROOFING & SERVICES, LLC D/B/A GULF-TEX ROOFING & SERVICES, Appellants
v.
CENTIMARK CORPORATION, Appellee

          On Appeal from the 80th District Court Harris County, Texas Trial Court Case No. 2018-10648

          Panel consists of Justices Lloyd, Kelly, and Hightower.

          MEMORANDUM OPINION

          RUSSELL LLOYD JUSTICE

         This is an appeal from the trial court's denial of a motion to dismiss pursuant to the Texas Citizens Participation Act (TCPA). In three issues, appellants Cliff Santellana (Santellana) and Gulf-Tex Roofing & Services, LLC d/b/a Gulf-Tex Roofing & Services (Gulf-Tex) argue that the trial court erred by denying their motion to dismiss appellee CentiMark Corporation's (CentiMark) claims against them because: (1) the underlying employment contract contains a "mandatory forum/venue/law selection clause," (2) Santellana and Gulf-Tex met their initial burden to prove that the TCPA applied to CentiMark's causes of action, and (3) CentiMark did not meet its burden to bring forth clear and specific evidence establishing a prima facie case for each element of its claims.

         We dismiss Santellana's and Gulf-Tex's forum and venue challenges for want of jurisdiction and affirm the trial court's order denying the motion to dismiss.

         Background

         Santellana served as CentiMark's Director of Sales/Services from approximately June 2012 to October 2016. As a condition of his employment by CentiMark, Santellana executed an employment agreement in which he agreed, among other things, "to hold and safeguard all of CentiMark's Confidential Information in trust and confidence for CentiMark" and not "misappropriate, disclose, or use or make available to any person or any entity for use" CentiMark's confidential information. Paragraph 4.05 of the Employment Agreement also prohibited Santellana from, directly or indirectly, soliciting the trade of, trading with, contacting for business purposes, or accepting business from any customer or prospective customer of CentiMark, other than for the benefit of CentiMark. The Employment Agreement also contains a choice of law provision and provides that jurisdiction and venue of "any action or proceeding arising out of, or relating to, this Agreement (whether such action arises under contract, tort, equity or otherwise) . . . shall be exclusively vested in the United States District Court for the Western District of Pennsylvania or the Court of Common Pleas of Allegheny County, Pennsylvania."

         Santellana resigned as CentiMark's Director of Sales/Services in September 2016 (effective October 2016). Less than three months later, Santellana and Alan Mann incorporated Gulf-Tex, a commercial roofing services provider that directly competes with CentiMark. Santellana is Gulf-Tex's managing partner. Santellana and Gulf-Tex solicited roofing business from and submitted proposals/bids/quotes to some of CentiMark's customers. They also accepted business from at least two of these customers.

         CentiMark subsequently sued Santellana and Gulf-Tex for misappropriation of trade secrets, tortious interference, unfair competition, conversion, and conspiracy and it asserted a separate claim against Santellana for breach of the Employment Agreement.

         Santellana and Gulf-Tex filed a timely motion to dismiss pursuant to the TCPA. CentiMark responded and argued that Santellana and Gulf-Tex failed to prove that CentiMark's claims were "based on, relate[] to, or [were] in response to" Santellana's and Gulf-Tex's exercise of the rights of free speech or association, and that even if they had met their burden, Santellana and Gulf-Tex could not prevail on their motion because CentiMark made a prima facie case for each essential element of its claims. CentiMark further contended that Santellana and Gulf-Tex could not prevail on their motion for another reason--the TCPA did not apply to CentiMark's claims based on the statute's commercial speech exemption.

         After a hearing, the trial court denied the motion to dismiss without stating the basis for its ruling.

         Forum Selection and Venue

         In their first issue, Santellana and Gulf-Tex argue that "[h]ad the contractual language regarding forum/venue/[choice of] law selection been honored by the trial court this case should have been dismissed for that reason alone."

         Neither the denial of a motion to transfer venue nor the denial of a motion to dismiss based on a forum-selection clause, standing alone, is reviewable by interlocutory appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(a); see also In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding) ("Once a trial court has ruled on proper venue, that decision cannot be the subject of interlocutory appeal."). Although we have jurisdiction over interlocutory appeals from the denial of a motion to dismiss under the TCPA, and Santellana and Gulf-Tex included forum and venue arguments in their motion to dismiss, Santellana's and Gulf-Tex's improper forum and venue arguments are separate and independent grounds for ...


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