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Hieber v. Percheron Holdings, LLC

Court of Appeals of Texas, Fourteenth District

November 14, 2019


          On Appeal from the 190th District Court Harris County, Texas Trial Court Cause No. 2019-09794

          Panel consists of Justices Christopher, Wise, and Hassan.



         In this contract case, an employer sued a former employee, alleging breach of a non-compete and non-solicitation agreement. The employee moved to dismiss the suit under the Texas Citizens Participation Act ("TCPA"). After the trial court denied the motion, the employee filed this interlocutory appeal, challenging the trial court's ruling. Because we conclude that the employer's suit is exempt from the TCPA, we affirm the trial court's order denying the motion to dismiss.


         The plaintiffs in this case are two related entities, which we collectively identify as "Percheron." Percheron has offices in more than a dozen states, and it offers specialized expertise in land, right of way, surveying, and environmental services. Percheron markets these services to various industries, including oil and gas, utilities, and transportation.

         The defendant is Jeffrey Hieber, who initially worked as an independent contractor for Percheron's predecessor. In 2007, Hieber became employed by Percheron itself, where he held the title of Regional Director of Field Services. In that role, Hieber was responsible for coordinating field services projects within Percheron's south central region.

         In 2014, Percheron selected Hieber to participate in an incentive plan, which was designed to retain employees who contributed to the growth and profitability of the company. Hieber entered into that plan by executing a Unit Grant Agreement. Pursuant to that agreement, Percheron awarded Hieber 40, 000 Incentive Units, which were Class B common shares that were set to vest over a period of four years. In exchange for those Incentive Units, Hieber agreed to be bound by certain non-compete and non-solicitation provisions, which stated in material part that he would not work for any of Percheron's competitors, and that he would not induce any of Percheron's customers to cease doing business with Percheron. The agreement further stated that Hieber would be bound by these provisions for two years after he left his employment with Percheron, or for as long as he held any Incentive Units, whichever period was longer.

         In 2015, Percheron promoted Hieber to Vice President of Business Development. In this more senior role, Hieber became responsible for securing contracts and projects throughout the continental United States, not just within Percheron's south central region. He also became responsible for developing new business relationships with companies and individuals, and for representing Percheron at industry meetings and social functions, where he was expected to spread awareness of the full range of services offered by Percheron. As a condition of his promotion, Hieber was required to forfeit half of his Incentive Units, which had not yet vested. He retained the remaining half, however, because they had already vested.

         In 2018, Hieber gave Percheron his two weeks' notice of his intent to resign. Even though he specifically represented to Percheron that he was not leaving to join a competitor, Hieber had already signed an agreement to become the Vice President of Project Development for LJA Surveying, Inc., which provides the same services within the same industries and for the same types of customers as Percheron.

         Within weeks of Hieber's resignation, Percheron learned that Hieber was representing LJA at the same industry events where he had formerly appeared on behalf of Percheron. When Percheron advised LJA about Hieber's non-compete agreement, LJA responded that Hieber had represented prior to his hiring that he was not subject to a non-compete agreement.

         Percheron also learned that, after he joined LJA, Hieber was corresponding with one of Percheron's existing customers. Percheron had anticipated that it would secure a new project with this customer, but the customer ultimately awarded the project to LJA instead.

         Based on the foregoing, Percheron sued Hieber for breach of the non-compete and non-solicitation agreement. Hieber filed an answer that generally denied the allegations against him. He also moved to dismiss Percheron's suit under the TCPA.

         Percheron filed a lengthy response and asserted three independent reasons for denying the motion to dismiss. First, Percheron argued that the pleadings and evidence established a prima facie case for every essential element of its breach of contract claim. Second, Percheron argued that its legal action fell within the ambit of the TCPA's commercial speech ...

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