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Mulcahy v. Cielo Property Group, LLC

Court of Appeals of Texas, Third District, Austin

September 13, 2019

Branigan Mulcahy, Cielo Property Group, LLC, Appellant//Cross-Appellant
Cielo Property Group, LLC, Branigan Mulcahy, Appellee//Cross-Appellee


          Before Chief Justice Rose, Justices Triana and Smith



         In this interlocutory appeal, appellant-cross-appellee Branigan Mulcahy and appellee-cross-appellant Cielo Property Group, LLC, challenge an order denying a motion to dismiss under the Texas Citizens Participation Act (TCPA), Tex. Civ. Prac. & Rem. Code § 27.005. We will affirm the district court's order.


         In 2014, Mulcahy began working jointly for G&A Partners and Cielo-which G&A refers to as one of its "clients"-as vice president of property acquisitions pursuant to an employment agreement executed by Mulcahy and G&A. As part of Mulcahy's compensation package, G&A and Cielo granted Mulcahy an interest in several properties under development through a series of LLC membership agreements. Cielo, on behalf of itself and G&A, terminated Mulcahy's employment in 2018, citing alleged "failure to perform, insubordination, and abrasiveness" as reasons for the termination. It then revoked Mulcahy's interest in the properties.

         Mulcahy subsequently obtained employment with an Austin-based group specializing in upscale hotel operations. At some point, Cielo learned that Mulcahy possessed a computer hard drive associated with his work on its behalf. Cielo demanded return of the hard drive, which Cielo alleges contains trade secrets and other confidential information. Mulcahy refused to return the hard drive, arguing that it contains sensitive personal information. He further averred that he had not accessed any trade secrets or other confidential company information to the extent any such information is saved to that drive. The drive is now in Mulcahy's counsel's possession under an order from this Court. See Mulcahy v. Cielo Prop. Grp., No. 03-19-00117-CV, 2019 WL 2384150, at *1 (Tex. App.-Austin June 6, 2019, order).

         Mulcahy sued Cielo and others for breach of contract, unjust enrichment, and employment discrimination, seeking to recover unpaid compensation and the property interests he had acquired in certain developments. Cielo responded with a general denial and a motion to compel arbitration, arguing that all Mulcahy's claims are subject to the arbitration clause in Mulcahy's employment agreement with G&A Partners. This Court reversed the district court's order denying the motion to compel and remanded the cause with instructions for the district court to send the claims to arbitration. See generally Cielo Prop. Grp. v. Mulcahy, No. 03-18-00587-CV, 2019 WL 3023312 (Tex. App.-Austin, July 11, 2019, no pet.) (mem. op.).

         In a separate cause of action in district court, Cielo sued Mulcahy for breach of contract, breach of fiduciary duty, and trade secret misappropriation, alleging that Mulcahy withheld the hard drive in violation of the terms of his employment agreement with G&A and in breach of his fiduciary obligation to Cielo. Cielo further alleged that Mulcahy might disclose confidential corporate information, including trade secrets. In its prayer for relief, Cielo sought to enjoin Mulcahy from maintaining possession of the hard drive and from disclosing any of its contents. Cielo also asked for disgorgement of any profits gained from use of the hard drive and for recovery of attorneys' fees and costs.

         Mulcahy answered with a general denial and a motion to dismiss under the TCPA, arguing that all claims arise from his exercise of the right to free speech and the right to petition the government. See Tex. Civ. Prac. & Rem. Code § 27.005 (requiring dismissal of claims arising from, related to, or in response to the exercise of certain constitutional rights). Neither party sought discovery on the motion. See id. §§ 27.003(c) (staying all discovery upon filing of motion to dismiss), .006(b) (allowing limited discovery on merits of motion upon party's request and showing of good cause). The district court denied the motion to dismiss and Mulcahy timely perfected this appeal. See id. § 51.014(12) (allowing accelerated interlocutory appeal from denial of TCPA motion to dismiss); Tex.R.App.P. 28.1 (governing accelerated appeals). Cielo timely perfected cross-appeal, arguing that the district court abused its discretion in denying Cielo's request for attorneys' fees and costs.


         Mulcahy contends the district court erred by denying the motion to dismiss, raising alternative arguments that: (1) the TCPA applies to Cielo's claims; (2) Cielo cannot make out a prima facie case for the elements of its claims; and (3) Cielo's claims do not fall into any statutory exception. He further argues that he would have been entitled to a mandatory award of attorneys' fees and costs if the court had correctly disposed of his motion. See Tex. Civ. Prac. & Rem. Code § 27.010(b). Cielo responds that even if the statute applies to its claims-a point it does not concede-it can make out a prima facie case for each element of the claims. See id. § 27.009(a)(1). Cielo does not contend that any exception applies.

         The TCPA allows a party to move for dismissal of any "legal action that is based on, related to, or in response to [that] party's exercise of the right of free speech, right to petition, or right of association." See id. § 27.003. Its purpose is to "encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government," while still "protect[ing] the rights of a person to file meritorious lawsuits for demonstrable injury." See id. § 27.002. "To effectuate the statute's purpose, the Legislature has provided a two-step procedure to expedite the dismissal of claims brought to intimidate or to silence a defendant's exercise of these First Amendment rights." ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) (citing Tex. Civ. Prac. & Rem. Code § 27.003) (per curiam). "Under the first step, a movant seeking to prevail on a motion to dismiss under the TCPA has the burden to 'show[ ] by a preponderance of the evidence that the [non-movant'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.'" Grant v. Pivot Tech. Sols., Ltd., 556 S.W.3d 865, 872 (Tex. App.-Austin 2018, pet. filed) (quoting Tex. Civ. Prac. & Rem. Code § 27.005(b)). In the second step, if the court "determines that the movant has met his burden to show that the TCPA applies, 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.'" Id. at 872-73 (quoting Tex. Civ. Prac. & Rem. Code § 27.005(c)). We review the disposition of a TCPA motion to dismiss under a de novo standard of review. Serafine v. Blunt, 466 S.W.3d, 352, 357 (Tex. App-Austin 2015, no pet.).

         This dispute requires us to determine whether the "exercise of the right to free speech" includes the allegations underlying Cielo's claims such that the district court erred in failing to dismiss the claims. "In determining whether a legal action should be dismissed under this chapter, the court shall consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based." See Tex. Civ. Prac. & Rem. Code § 27.006. Here, the evidence of record includes: G&A's formal offer of employment to Mulcahy, the employment agreement executed by G&A and Mulcahy, G&A's alternate dispute resolution agreement, an image of the website of Mulcahy's subsequent employer, and two demand letters sent to that employer requesting that the employer assist in the return of the disputed hard drive. Mulcahy also filed a declaration describing his employment with Cielo, and Cielo principal Robert W. Dillard, III, filed a declaration explaining the importance of the "proprietary business information" that might be stored on the hard drive.

         Even assuming all this evidence is properly considered when disposing of a TCPA motion to dismiss, see id., that evidence does not satisfy Mulcahy's statutory burden to show that these claims arise from or relate to the exercise of his right to free speech, see Grant, 556 S.W.3d at 872. The "exercise of the right of free speech" includes any "communication made in connection with a matter of public concern." Tex. Civ. Prac. & Rem. Code § 27.001(7). "'Communication' includes 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). "'Matters of public concern' include issues related to "community well-being," or "goods products or services in the market." Id. § 27.001(3). Here, the complained-of conduct is not any oral statement or written or digital document. Instead, Cielo complains that Mulcahy is wrongfully maintaining possession of a hard drive and the data saved on that hard drive in violation of his employment contract and his alleged fiduciary duties to his former employer. See Plaintiff's Verified Original Petition for Temporary and Permanent Injunctive Relief at ΒΆ 22 ("Mulcahy's continued ...

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