Justice Tracy Christopher
HOUSTON – On Nov. 14, the 14th Court of Appeals determined an employer’s lawsuit is exempt from the Texas Citizens Participation Act and affirmed a lower court’s ruling that denied an employee’s motion to dismiss the suit against him.
Percheron Holdings LLC and Percheron Professional Services LLC sued Jeffrey Hieber over allegations Hieber breached a non-compete and non-solicitation agreement. Hieber filed a motion to dismiss via the TCPA. The 190th District Court in Harris County denied the motion without stating its reasons, and the appeals court affirmed.
Justice Tracy Christopher determined that Percheron presented enough evidence to show that Hieber was performing the same job responsibilities at his new position with a Percheron competitor, LJA Surveying. Percheron also alleged that Hieber poached Percheron’s customers and took them over to LJA.
"... Percheron established through its pleadings and its evidence that, since joining LJA, Hieber has targeted one of Percheron’s existing customers, and he has marketed the same type of surveying services to that customer as he did when he worked for Percheron," Christopher wrote. "Viewing the evidence in the light most favorable to Percheron, we conclude that the evidence establishes by a preponderance of the evidence that Percheron’s legal action is exempt under the TCPA’s commercial speech exemption."
The ruling states Hieber began his employment with Percheron in 2007, was selected to participate in an incentive plan in 2014, and was named vice president of business development in 2015. In 2018, Hieber issued a two-week notice. While he said he was not going to work for a competitor, Percheron discovered that Hieber signed an agreement to become vice president of project development for LJA. The plaintiffs also allege they learned Hieber backed LJA Surveying Inc. at industry events where he once represented Percheron. Percheron told LJA about the non-compete agreement, and LJA said that Hieber represented the company before he was hired, and that he wasn’t under a non-compete agreement.
Percheron ultimately sued Hieber for breach of the non-compete and non-solicitation agreement. He filed a motion to dismiss via the TCPA, which was denied.
Justices Ken Wise and Meagan Hassan concurred.