Opinion issued April 20, 2021
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-19-00674-CV ——————————— RUTH AWAH, Appellant V. SYNERGENX PHYSICIAN SERVICES, PLLC, Appellee
On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2019-36587
MEMORANDUM OPINION
Appellee SynergenX Physician Services, PLLC (“SynergenX”) sued
appellant Ruth Awah for conduct related to the alleged misappropriation of
SynergenX’s trade secrets and confidential information. Awah moved to dismiss under the Texas Citizens Participation Act (“TCPA”),1 but the trial court denied her
motion. In this interlocutory appeal, Awah contends the trial court erred by refusing
to dismiss SynergenX’s claims under the TCPA.
We affirm.
Background
In May 2019, SynergenX, a company offering “full-service health and
wellness care,” including hormone replacement therapy, weight loss management,
and general wellness treatment, filed suit against Awah, a former employee.
SynergenX claimed that Awah violated the terms of a confidentiality and
non-compete agreement “by improperly accessing the SynergenX system, by
removing and disclosing confidential information of SynergenX, and by soliciting
patients of SynergenX for her competing business.” SynergenX sought injunctive
relief and monetary damages against Awah.
In its petition, SynergenX alleged that it hired Awah as a “service provider”
on April 24, 2017, and that she provided “medical services to SynergenX patients at
its clinic located in Sugar Land” until she voluntarily terminated her employment on
February 1, 2019. SynergenX alleged that, as a service provider, Awah had access
1 See TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011. The Legislature amended the TCPA in June 2019, but the amendments apply only to an action filed on or after September 1, 2019. Because this suit was filed in May 2019, the 2019 amendments to the TCPA do not apply. The TCPA as it existed before September 1, 2019 is referenced in this memorandum opinion. 2 to SynergenX’s confidential information and trade secrets, including “inventions and
know how, pricing policies, market research and analysis, information regarding
current a[nd] prospective patients, information regarding SynergenX employees,
financial data and information, [and] business plans and processes.”
To protect this confidential and proprietary information, SynergenX alleges
that it entered into a Confidentiality, Non-Disclosure & Non-Competition
Agreement (the “Agreement”) with Awah “for the specific purpose of protecting
SynergenX’s trade secrets and confidential information.”2 Under the terms of the
Agreement, SynergenX agreed to provide Awah with its confidential and proprietary
information in exchange for Awah’s non-disclosure obligations and non-compete
covenants. Specifically, the Agreement prohibited Awah from disclosing the
confidential information to third parties, using the confidential information for the
benefit of anyone other than SynergenX, and removing the confidential information
from SynergenX’s premises. It also required Awah to return all confidential
2 In its response to Awah’s motion to dismiss and its First Amended Petition, filed on August 1, 2019, SynergenX notes that Awah actually entered into two non-compete agreements. The first was signed by Awah on April 27, 2017 and coincided with her new employment with SynergenX. The second had an effective date of January 1, 2018 and, according to SynergenX, forms the basis of its allegations and Awah’s motion to dismiss. Because SynergenX’s allegations in both its original petition and first amended petition are based off alleged violations of the January 1, 2018 agreement, all references to “the Agreement” in this opinion are to the January 1, 2018 agreement. 3 information to SynergenX upon the termination of her employment. For 12 months
following the termination of her employment, Awah was not permitted to:
(i) solicit (or assist another in soliciting) and Covered Account or Prospective Account for business involving products or services that are competitive with those offered by [SynergenX] at any time in the 24-month period preceding termination of [Awah’s] employment with [SynergenX]; or (ii) communicate with (or assist another in communicating with) any Covered Account or Prospective Account for the purpose of causing that Covered Account or Prospective Account to terminate or diminish its business relationship or prospective business relationship with [SynergenX].
The Agreement defined “Covered Account or Prospective Account” to include “any
patient to whom [SynergenX] has sold its products or services” or “any other patient
with whom [Awah] had contact on behalf of [SynergenX] in the 24-month period
preceding termination of [Awah’s] employment with [SynergenX].”
The Agreement also provided that Awah would not, for a period of two years
following the termination of her employment, “solicit or induce . . . any person
employed by . . . [SynergenX] . . . to terminate his/her employment or agency or
independent contractor relationship with [SynergenX].” Finally, the Agreement
prohibited Awah from “work[ing] for a business that provides male or female
hormone replacement therapy or health and wellness services within a 10[-]mile
radius from any location worked in for [SynergenX]” for the 12-month period
following her termination.
4 On January 2, 2019, Awah tendered her resignation to the Chief Executive
Officer of SynergenX, Wayne Wilson, citing the need to “attend to some family and
personal needs” and stating that her last day would be February 2, 2019. SynergenX
alleged that, in fact, Awah “was in the process of opening a competing business,
offering the same types [of] hormone replacement therapies, weight management,
and other patient services as SynergenX.” SynergenX alleged that Awah’s
competing business, AndroGenX, had a similar name and company logo to
SynergenX.
SynergenX acknowledged in its petition that AndroGenX’s office was located
more than ten miles from the SynergenX facility where Awah worked, so she did
not violate of the Agreement by simply establishing a competing business.
According to SynergenX, however, Awah’s other actions before and after she left
SynergenX violated the confidentiality and non-solicitation provisions of the
Agreement.
Specifically, SynergenX alleged that it required providers to complete their
follow-up clinic notes within 72 hours after seeing a patient. Additionally, as a
departing provider, Awah was permitted 72 hours of access to the SynergenX
Electronic Medical Records (“EMR”) system after her last day of employment so
that she could access patient records and complete her clinic notes. Although Awah
originally indicated that her last day with SynergenX would be February 2, 2019,
5 she notified SynergenX on February 1 that she would not be in the following day.
According to SynergenX, Awah saw her last patient on February 1 and therefore she
was required to enter and sign her last patient notes by February 4. However, she did
not complete her last patient record until February 6. Additionally, Awah changed
her network password on February 5, before it was set to expire,3 and continued to
access the network until February 11. Between February 6 and 11, Awah “made
1,153 actions on the EMR system,” “logged over 10 hours after she had completed
and signed her last patient note,” and “printed documents regarding two SynergenX
patients whose notes she had completed the previous week.”
SynergenX alleged that “Awah’s purpose in improperly accessing patient
record[s] became clear within a few weeks of her departure from SynergenX, when
patients reported to employees of the Sugar Land clinic that Awah was soliciting
them as patients for her new clinic.” Because “Awah’s only source of patient contact
information was SynergenX’s patient records,” SynergenX alleged that “her actions
in removing this information and soliciting SynergenX’s patients violates the terms
of the Agreement.” Based on these allegations, SynergenX sued Awah for violations
of the Texas Uniform Trade Secrets Act (“TUTSA”), breach of contract, breach of
fiduciary duty, and for violations of the Harmful Access by Computer Act
3 According to SynergenX, because Awah notified it that her last day was to be February 2, 2019, her account and access to the SynergenX network was set to expire on February 5. 6 (“HACA”) and sought monetary damages and a temporary restraining order and
injunction.4
On June 27, 2019, Awah moved to dismiss the suit under the TCPA. Awah
contended that the TCPA applied to SynergenX’s claims against her because each
of the causes of action implicated her rights to free speech and association as they
“are based on, relate to, or were filed in response to [Awah’s] communications and
association, including her alleged acts which involve accessing, disclosing, and
using confidential information and trade secrets for solicitation of patients for
AndroGenX.”
The trial court denied Awah’s motion, and she appealed.
Dismissal under the TCPA
In one issue, Awah contends that the trial court erred by denying her motion
to dismiss under the TCPA because (1) she met her burden to show that the TCPA
applies to SynergenX’s claims, (2) the commercial-speech exemption does not
apply, (3) the preempted claims for breach of fiduciary duty and HACA must be
dismissed with prejudice, (4) SynergenX cannot show clear and specific evidence of
4 After Awah moved to dismiss the petition under the TCPA, but before the trial court ruled on her motion, SynergenX filed a First Amended Petition. In the amended petition, SynergenX nonsuited its breach of fiduciary and HACA claims, leaving only its TUTSA and breach of contract claims against Awah. We still consider the entirety of Awah’s TCPA motion to dismiss because it constitutes a request for affirmative relief that survives nonsuit. See Gaskamp v. WSP USA, Inc., 596 S.W.3d 457, 468–69 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (en banc). 7 each element of its causes of action, (5) she established a defense to the breach of
contract claim, and (6) remand is required to determine her attorney’s fees and costs.
We disagree with Awah’s initial contention that she has demonstrated the threshold
requirement of the TCPA’s applicability in this case. Because this is dispositive of
Awah’s appeal, we do not reach Awah’s remaining arguments.
A. Standard of Review
We review de novo the denial of a TCPA motion to dismiss. Better Bus.
Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied). In making this determination, the
court views the pleadings and evidence in the light most favorable to the nonmovant.
Schimmel v. McGregor, 438 S.W.3d 847, 855–56 (Tex. App.—Houston [1st Dist.]
2014, pet. denied). Whether the TCPA applies is an issue of statutory interpretation
that we also review de novo. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018).
B. Applicable Law
The TCPA “is a bulwark against retaliatory lawsuits meant to intimidate or
silence citizens on matters of public concern.” Dallas Morning News, Inc. v. Hall,
579 S.W.3d 370, 376 (Tex. 2019). It is intended “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 584, 589 (Tex. 2015) (orig. proceeding).
8 A party invoking the TCPA’s protections by filing a motion to dismiss first
must show by a preponderance of the evidence that the TCPA applies. TEX. CIV.
PRAC. & REM. CODE §§ 27.003, 27.005(b). The version of the TCPA that applies
here mandates the dismissal of a “legal action” that is “based on, relates to, or is in
response to the [moving] party’s exercise of (1) the right of free speech; (2) the right
to petition; or (3) the right of association.” Id. § 27.005(b); In re Lipsky, 460 S.W.3d
at 586–87. A “legal action” can consist of an entire lawsuit. Creative Oil & Gas,
LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 131 (Tex. 2019).
Once the movant shows that the TCPA applies, the burden shifts to the
nonmovant to establish “by clear and specific evidence a prima facie case for each
essential element” of its claim. TEX. CIV. PRAC. & REM. CODE § 27.005(c). The
nonmovant can avoid this burden-shifting requirement by demonstrating that one of
the TCPA’s exceptions applies, such as the commercial-speech exemption. Id.
§ 27.010(b).
If the trial court dismisses the legal action under the TCPA, the court “shall
award” to the moving party: (1) court costs, reasonable attorney’s fees, and other
expenses incurred in defending against the legal action as justice and equity may
require; and (2) sanctions against the party who brought the legal action as the court
determines sufficient to deter the party who brought the legal action from bringing
similar actions described in this chapter. Id. § 27.009(a).
9 In her first argument, Awah asserts that she satisfied her initial burden to
show, by a preponderance of the evidence, that SynergenX’s claims are based on,
related to, or are in response to her exercise of her right to association and her right
to free speech.5 Applying this Court’s en banc decision in Gaskamp v. WSP USA,
Inc., 596 S.W.3d 457, 476 (Tex. App.—Houston [1st Dist.] 2020, pet. dism’d) (en
banc), we disagree.6
C. Exercise of Right of Free Speech
Awah argues that the TCPA applies to SynergenX’s lawsuit because it is
based on, related to, or is in response to her exercise of the right of free speech. The
5 Awah does not argue that SynergenX’s claims are based on, related to, or are in response to Awah’s right to petition. 6 SynergenX does not contest Awah’s contention on appeal that she met her initial burden of showing that SynergenX’s claims are a “legal action” that is “based on, relates to, or is in response to a party’s exercise of the right of free speech [or] the right of association,” instead arguing only that the commercial-speech exemption applies or, alternatively, that it met its prima facie burden as to each of its claims. TEX. CIV. PRAC. & REM. CODE § 27.005(b). That, however, does not prevent this Court from addressing the issue as raised by Awah. Indeed, it is irrelevant that SynergenX has failed to address this argument in its appellate brief since it is the appellant’s burden to demonstrate grounds for reversal on appeal and our job, as the reviewing court, to independently determine those grounds and whether the TCPA applies. See Richardson-Eagle, Inc. v. William M. Mercer, Inc., 213 S.W.3d 469, 478 n.6 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“It is irrelevant, however, that [appellee] failed to address the DTPA claims in its brief, as an appellee need not raise cross-points or even file a brief to have this Court consider what was presented to the trial court; the burden rests on the appellant to establish grounds for reversal.”); Sullivan v. Booker, 877 S.W.2d 370, 373 (Tex. App.— Houston [1st Dist.] 1994, writ denied) (rejecting appellant’s argument that appellee waived any argument on issues to which they failed to respond on appeal because “[a]ppellee’s failure to respond to appellants does not entitle appellants to a reversal”). 10 TCPA defines the “exercise of the right to free speech” as “a communication made
in connection with a matter of public concern.” Id. § 27.001(3). At the time this suit
was filed, a “matter of public concern” included an issue related to: “(A) health or
safety; (B) environmental, economic, or community well-being; (C) the government;
(D) a public official or public figure; or (E) a good, product, or service in the
marketplace.” Id. § 27.001(7).
Specifically, Awah argues that SynergenX’s lawsuit implicates her exercise
of the right to free speech because it is based on Awah’s communications “with
AndroGenX in order to start a ‘competing’ business” and “with one patient in order
to solicit the patient for treatment at AndroGenX.” In support of her argument that
her alleged communications with AndroGenX implicate the right to free speech,
Awah points to SynergenX’s allegations that:
• Awah misappropriated SynergenX’s proprietary information in order to establish and profit from her new, competing business, AndroGenX;
• This proprietary information, including protocols, procedures, and practices, “is a roadmap for [Awah’s] new, competing business, AndroGenX,” which Awah improperly accessed via SynergenX’s EMR and “use[d] the improperly obtained information for AndroGenX”; and
• “As a result of her use and disclosure of SynergenX’s trade secrets, [Awah] was able to access information which SynergenX spent money acquiring. [Awah] was thus able to start her new, competing business without the expense incurred by SynergenX because instead of using funds to obtain her own trade secrets, she simply took SynergenX’s information and used it for the advancement of AndroGenX.”
11 In support of her argument that her alleged communications with a patient
implicate the right to free speech, Awah points to SynergenX’s allegations that:
• “[W]ithin a few weeks of Awah’s departure, a current patient of SynergenX’s Sugar Land clinic reported that Awah was soliciting him/her as a patient for her new clinic”; and
• Awah “solicited that patient for treatment at Awah’s new business, AndroGenX.”
In light of recent decisions from the Texas Supreme Court and this Court, we
disagree that these communications implicate the right to free speech. See Creative
Oil & Gas, 591 S.W.3d at 137; Gaskamp, 596 S.W.3d at 476.
The Texas Supreme Court explained in Creative Oil & Gas, a decision issued
after Awah filed her motion to dismiss, that “not every communication related
somehow to one of the broad categories set out in section 27.001(7) always regards
a matter of public concern.” 591 S.W.3d at 137. The term “a good, product, or
service in the marketplace” must be interpreted considering the common meaning of
a “matter of public concern,” which does not include “purely private matters.”
Id. at 135. Therefore, a communication regarding “a good, product, or service in the
marketplace” does not constitute a “matter of public concern” unless the
communication has “some relevance to a public audience of potential buyers or
sellers.” Id.7
7 See also Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 136 (Tex. 2019) (record did not indicate “that the dispute had any relevance to the 12 Relying in part on Creative Oil & Gas, this Court held in Gaskamp, which
also was decided after Awah moved to dismiss, that communications between
former employees related to the employees’ alleged misappropriation, sharing, and
use of the plaintiff’s confidential information did not constitute an exercise of their
free-speech rights because these communications “had no potential impact on the
wider community or a public audience of potential buyers or sellers. In short, the
communications had no public relevance beyond the pecuniary interests of the
private parties.” 596 S.W.3d at 477.
This Court therefore concluded in Gaskamp that communications made by the
plaintiff’s former employees in soliciting and procuring business from a third party
did not constitute an exercise of the employees’ free-speech rights because those
communications did not have any “relevance to a public audience of buyers or sellers
but instead were limited to ‘the pecuniary interests of the private parties involved.’”
Id. at 479 (quoting Creative Oil & Gas, 591 S.W.3d at 136).
The same is true here. Awah’s alleged communications with AndroGenX, and
her alleged solicitation of SynergenX’s patients, are related to her alleged
misappropriation, sharing, and communication of SynergenX’s confidential
information in an attempt to develop and promote a competing business venture,
broader marketplace or otherwise could reasonably be characterized as involving public concerns”). 13 allegedly in violation of the Agreement. Just like the communications that were
alleged in Gaskamp, these communications “do not have relevance to a public
audience of buyers or sellers but instead were limited to ‘the pecuniary interests of
the private parties involved.” Id.8 As such, these communications do not involve “a
matter of public concern.” TEX. CIV. PRAC. & REM. CODE § 27.001(7)(E) (regarding
“a good, product, or service in the marketplace”).
Accordingly, we conclude that Awah did not meet her burden of showing by
a preponderance of the evidence that SynergenX’s claims are based on, related to,
or are in response to an exercise of the right of free speech.
D. Exercise of Right of Association
Along similar lines, Awah contends the same allegations detailed above also
implicate the exercise of the right of association. When this suit was filed, the TCPA
defined the “exercise of the right of association” as “a communication between
8 See also Griffith Techs., Inc. v. Packers Plus Energy Servs., (USA), Inc., No. 01-18-00674-CV, 2020 WL 4354713, at *6 (Tex. App.—Houston [1st Dist.] July 30, 2020, no pet.) (mem. op.) (concluding that plaintiffs’ communications regarding development and promotion of competing business enterprise did not have any public relevance “beyond the pecuniary interest of the private parties” and, thus, defendants’ counterclaims were not related to plaintiffs’ exercise of right of free speech); Newpark Mats & Integrated Servs., LLC v. Cahoon Enters., LLC, 605 S.W.3d 671, 681–82 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (concluding that dispute at issue was private business dispute between two companies that was not relevant to broader marketplace and, therefore, communications concerning dispute did not implicate matter of public concern and TCPA did not apply). 14 individuals who join together to collectively express, promote, pursue, or defend
common interests.” Id. § 27.001(2).
However, in Gaskamp, this Court concluded that “with respect to the
pre-amendment version of the TCPA, the proper definition of ‘common’ in the
phrase ‘common interests’ [as used in “exercise of the right of association”] is ‘of or
relating to a community at large: public.’” 596 S.W.3d at 476. In Gaskamp, the
plaintiff alleged that former employees had jointly formed a new business venture,
misappropriated trade secrets, and conspired to commit related torts to enrich
themselves. See id.
Because the Gaskamp allegations “involved misappropriating . . . trade secrets
and conspiring to commit related torts, benefit[ing] only the five alleged tortfeasors,”
and the nonmovant’s pleading did not allege any “public or community interests,”
the Court held that the movants did not meet their burden of showing, by a
preponderance of the evidence, that the nonmovant’s suit was based on, related to,
or was in response to the movants’ exercise of the right of association. Id.
The same is true here. SynergenX’s claims are all based on Awah’s alleged
misappropriation of SynergenX’s confidential information, and the sharing and
communication of that confidential information with AndroGenX in an attempt to
develop and promote a competing business enterprise. No “public or community
15 interest” is alleged; rather, the allegations implicate private interests that benefit only
the private parties involved in the intended business venture. See id.9
Accordingly, we conclude that Awah also did not meet her burden of showing
by a preponderance of the evidence that SynergenX’s claims are based on, related
to, or are in response to an exercise of the right of association.
Based on this conclusion—and our conclusion that Awah did not meet her
burden of showing by a preponderance of the evidence that SynergenX’s claims are
based on, related to, or are in response to an exercise of the right of free speech—
we hold that the TCPA does not apply and the trial court did not err in denying
Awah’s motion to dismiss. We need not address Awah’s additional arguments. TEX.
R. APP. P. 47.1.
9 See also Griffith Techs., Inc., 2020 WL 4354713, at *5 (holding counterclaims were not related to exercise of right of association because claims were based on parties’ joint conduct in developing and promoting a competing business enterprise); Newpark Mats & Integrated Srvs., LLC, 605 S.W.3d at 680 (“Newpark’s association (internally and externally) to express, promote, and pursue a common interest, namely, to form a competing business, is not a public or community interest; it is a private interest that benefits only the private parties involved in the intended business venture.”). 16 Conclusion
We affirm the trial court’s order denying Awah’s motions to dismiss under
the TCPA.
Amparo Guerra Justice
Panel consists of Justices Countiss, Rivas-Molloy, and Guerra.