Martin Lara, Sr.; Martin Lara, Jr.; and Coast to Coast Insurance Services, LLC v. Streamline Insurance Services, LLC; and Streamline Insurance Services, Inc.

Summary

On rehearing, the Texas Court of Appeals, Third District, withdrew and substituted its prior opinion concerning a Texas Citizens Participation Act motion to dismiss claims for knowing participation in breach of fiduciary duty and tortious interference with employment contracts. The court held that the commercial-speech exemption applied to certain claims against Coast to Coast Insurance Services, LLC involving communications with actual or potential insurance customers, but did not apply to claims against the individual defendants or claims concerning procurement of office space. The court also declined to consider an unpreserved argument that the Covenants Not to Compete Act preempted the TCPA.

Holdings

1. Streamline's allegations that appellants communicated with Molina and Martinez while pursuing a competing insurance business implicated appellants' exercise of the TCPA-defined right of association.
2. The commercial-speech exemption applied to Streamline's claims against Coast to Coast to the extent those claims were based on communications by Molina and Coast to Coast's employee Martinez with actual or potential customers to secure Coast to Coast insurance sales.
3. The commercial-speech exemption did not apply to Coast to Coast's claim-related conduct concerning Molina's assistance in procuring New Mexico office space because that conduct did not involve communications with actual or prospective customers.
4. The commercial-speech exemption did not apply to Streamline's claims against Lara, Sr. and Lara, Jr. individually.
5. Streamline waived its argument that the Covenants Not to Compete Act preempted the TCPA because it did not present that argument to the district court with respect to appellants or their claims.
6. Streamline failed to establish by clear and specific evidence a prima facie case that the Laras knowingly participated in any alleged breach by Molina, or that Coast to Coast knowingly participated in the alleged breach involving procurement of New Mexico office space.
7. Streamline failed to establish by clear and specific evidence a prima facie case for tortious interference against the Laras individually. The claim against Coast to Coast remained exempt from TCPA dismissal to the extent it was based on customer-solicitation communications covered by the commercial-speech exemption.

Questions Presented

1. Whether Streamline's claims were based on, related to, or in response to appellants' exercise of the TCPA-protected right of association.
2. Whether the TCPA's commercial-speech exemption applied to Streamline's claims against Coast to Coast and the Laras.
3. Whether Streamline preserved its argument that the Covenants Not to Compete Act preempted the TCPA.
4. Whether Streamline established by clear and specific evidence a prima facie case for knowing participation in breach of fiduciary duty.
5. Whether Streamline established by clear and specific evidence a prima facie case for tortious interference with contract.
6. Whether appellants established the affirmative defense of justification by a preponderance of the evidence.

Disposition

reversed_and_remanded