Affirmed and Opinion Filed September 26, 2023

In the

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-01374-CV

QUALITY CLEANING PLUS, INC., Appellant

V.

PREFERRED STAFF, LLC, Appellee

On Appeal from the 134th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-22-08606

MEMORANDUM OPINION

Before Justices Carlyle, Smith, and Kennedy

Opinion by Justice Carlyle

In this interlocutory appeal, Quality Cleaning Plus, Inc. (QCP) challenges the 

trial court’s order denying its TCPA1 motion to dismiss a July 28, 2022 lawsuit filed 

by Preferred Staff, LLC (Preferred). We affirm in this memorandum opinion. See

TEX. R. APP. P. 47.4. 

Background

 

1 The Texas Citizens Participation Act, TEX. CIV. PRAC. & REM. CODE §§ 27.001–.011 (“Actions 

Involving the Exercise of Certain Constitutional Rights”). Because the legal action at issue here was filed 

after September 1, 2019, the TCPA’s 2019 amendments apply in this case. See Act of May 17, 2019, 86th 

Leg., R.S., ch. 378, 2019 Tex. Sess. Law Serv. 684 (codified at TEX. CIV. PRAC. & REM. CODE §§ 27.001, 

.003, .005–.007, .0075, .009–.010).
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Preferred’s live petition states it is “a staffing and search firm that services 

hotels, motels and other hospitality providers by providing permanent and temporary 

placements of employees and support teams.” It provides its employees with 

“confidential resources,” including “an extensive database detailing confidential 

business information,” and requires its employees to sign non-disclosure and noncompete agreements.

According to the petition, (1) former Preferred employee Richard Cardona 

“spent almost one (1) year of his employment plotting his departure from Preferred 

and joining Quality Cleaning Plus to directly compete against Preferred”; (2) “it 

appears that Cardona operated the competing business of Quality Cleaning Plus out 

of Preferred’s office”; (3) defendants QCP and Cardona “without authorization or 

consent, have wrongfully accessed, used, disclosed, and/or maintained possession of 

trade secrets and/or other confidential and proprietary information belonging to 

Plaintiff”; and (4) QCP and Cardona “worked together to take evasive maneuvers to 

prevent Preferred from tracking both the clients with whom [Cardona] 

communicated about available jobs and the prospective candidates whom he 

solicited for those positions.” 

Preferred asserted causes of action against QCP and Cardona for 

(1) “misappropriation of confidential information and trade secrets and violation of 

the Texas Uniform Trade Secrets Act,” (2) conversion regarding trade secrets and 

confidential and proprietary information, (3) “tortious interference with existing and 
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prospective contractual relationships,” (4) unjust enrichment, and (5) civil 

conspiracy. Preferred also asserted claims against Cardona for breach of contract 

and “breach of the duty of loyalty and fiduciary duties” and a claim against QCP for 

“aiding and abetting.”

QCP and Cardona filed separate general denial answers and asserted various 

affirmative defenses. Additionally, QCP filed a timely TCPA motion to dismiss “all 

of the claims brought by Plaintiff.” The dismissal motion asserted:

The claims against Cardona implicate and form the basis for the claims 

against QCP, Inc. . . . .

. . . Plaintiff’s suit is based on, relates to, and/or is in response to 

the exercise of the right of association because it is based on Cardona 

associating with QCP, Inc., for the alleged purpose (according to 

Plaintiff) of taking business away from Plaintiff. . . . Such allegations 

directly implicate the TCPA, and Plaintiff cannot introduce clear and 

specific evidence of each element of its claims.

. . . .

. . . The Petition also accuses QCP, Inc., of using information, 

which would include information about a good, product, or service 

being offered in the marketplace. . . . Such allegations implicate the 

right of free speech under the TCPA.

In its response to the motion to dismiss, Preferred contended (1) “Defendants 

have not exercised any constitutional rights which are protected by the TCPA”; 

(2) its legal action is exempt from TCPA dismissal; (3) it “nonetheless has presented 

a prima facie case”; and (4) “QCP has not submitted any evidence to the Court in 

support of any of its affirmative defenses.” Preferred’s response included evidentiary 

attachments.
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At the hearing on the TCPA motion to dismiss, QCP argued that the act “does 

carve out certain exceptions that would make a TCPA motion inapplicable in certain 

situations” and “that may be the case for the Defendant Cardona,” but “the TCPA, 

it specifically is applicable for competitors; that is, a competitor cannot seek to use 

a lawsuit to stifle competition.” QCP’s counsel also stated:

Exemption 5, a legal action arising from an officer/director, 

employee/employer or independent contractor relationship, we don’t 

dispute that. What we dispute is that QCP, Inc., was any of those things. 

That QCP was never in an officer or director relationship with 

Preferred, they were never in an employer/employee relationship with 

Preferred, and they were never in an independent contractor 

relationship. And so because of that, the TCPA does apply to the claims 

brought against QCP.

Preferred argued the TCPA is inapplicable pursuant to (1) section 

27.010(a)(2)’s “commercial speech exemption”; (2) section 27.010(a)(5)’s 

“covenant not to compete exemption” because this is a legal action “arising from” 

an employee-employer relationship and seeking the relief described in that section; 

and (3) this Court’s holding in Dyer v. Medoc Health Services, LLC2and subsequent 

cases that the TCPA generally does not apply to private communications in business 

disputes lacking public relevance beyond the private parties’ pecuniary interests. 

 

2 573 S.W.3d 418 (Tex. App.—Dallas 2019, pet. denied); see also McLane Champions, LLC v. Houston 

Baseball Partners LLC, 671 S.W.3d 907, 919–20 & n.11 (Tex. 2023) (citing Dyer with approval and stating 

that construing pre-2019 TCPA term “common interest” to “include a public component” is “congruent 

with the statute as a whole”).
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Preferred also argued that though further analysis was thus unnecessary, it had 

established a prima facie case for its claims.3 

The trial court signed an order denying QCP’s TCPA motion to dismiss “in 

all respects” without stating the basis for its ruling.4

Standard of review and applicable law

“The TCPA was designed to protect both a defendant’s rights of speech, 

petition, and association and a claimant’s right to pursue valid legal claims for 

injuries the defendant caused.” Montelongo v. Abrea, 622 S.W.3d 290, 299 (Tex. 

2021); see TEX. CIV. PRAC. & REM. CODE § 27.002. Generally, “[i]f a legal action is 

based on or is in response to a party’s exercise of the right of free speech, right to 

petition, or right of association5. . . , that party may file a motion to dismiss the legal 

action” and the trial court “shall” dismiss it unless the party bringing the legal action 

“establishes by clear and specific evidence a prima facie case for each essential 

 

3 Though Cardona’s counsel attended the hearing and the trial court offered him the opportunity to be 

heard, he declined that opportunity and responded, “This is not my motion, so I was just standing by 

watching.” Cardona did not file a notice of appeal and has not filed a brief in this Court.

4 The order also provided that Preferred “may, if it so elects, file a motion to recover its costs and 

attorney’s fees and set same to be heard.” A week later, Preferred filed a motion for TCPA attorney’s fees. 

That motion was pending when this appeal was filed. See TEX. CIV. PRAC. & REM. CODE § 51.014(b) 

(providing for stay of trial court proceedings pending resolution of TCPA interlocutory appeal).

5

“‘Exercise of the right of association’ means to join together to collectively express, promote, pursue, 

or defend common interests relating to a governmental proceeding or a matter of public concern.” TEX.

CIV. PRAC. & REM. CODE § 27.001(2). “‘Exercise of the right of free speech’ means a communication made 

in connection with a matter of public concern.” Id. § 27.001(3). “‘Matter of public concern’ means a 

statement or activity regarding: (A) a public official, public figure, or other person who has drawn 

substantial public attention due to the person’s official acts, fame, notoriety, or celebrity; (B) a matter of 

political, social, or other interest to the community; or (C) a subject of concern to the public.” Id. 

§ 27.001(7).
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element of the claim in question.” TEX. CIV. PRAC. & REM. CODE §§ 27.003(a), 

27.005. 

But TCPA section 27.010(a) describes multiple exemptions to the act. 

Pursuant to section 27.010(a)(2), the TCPA does not apply to: 

(2) a legal action brought against a person primarily engaged in 

the business of selling or leasing goods or services, if the 

statement or conduct arises out of the sale or lease of goods, 

services, . . . or a commercial transaction in which the intended 

audience is an actual or potential buyer or customer[.]

Additionally, the act’s 2019 amendments added an exemption for:

(5) a legal action arising from an officer-director, employeeemployer, or independent contractor relationship that:

(A) seeks recovery for misappropriation of trade secrets or 

corporate opportunities; or

(B) seeks to enforce a non-disparagement agreement or a 

covenant not to compete[.] 

Id. § 27.010(a)(5). The TCPA nonmovant bears the burden of proving a statutory 

exemption. See Kirkstall Rd. Enters., Inc. v. Jones, 523 S.W.3d 251, 253 (Tex. 

App.—Dallas 2017, no pet.) (citing Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 282 

(Tex. App.—Dallas 2015, pet. denied)). 

Whether the TCPA applies to a legal action is an issue of statutory 

interpretation we review de novo. Temple v. Cortez Law Firm, PLLC, 657 S.W.3d 

337, 341–42 (Tex. App.—Dallas 2022, no pet.). This Court may consider an 

exemption before addressing the movant’s burden to show TCPA applicability. Id. 

at 346 (citing TEX. R. APP. P. 47.1). 
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Analysis

QCP asserts (1) “[t]he issue presented in this appeal is whether the trial court 

erred in denying Appellant’s Motion to Dismiss under the [TCPA] based on 

Plaintiff’s claims of tortious interference with contract, misappropriation of trade 

secrets, and breach of contract,” and (2) “[s]pecifically, the issues presented are 

whether Appellant’s actions are protected under the TCPA, whether Appellee has 

provided clear and specific evidence to support their claims.” QCP contends:

Appellee’s suit is based on, relates to, and/or is in response to the 

exercise of the right of association because it is based on Cardona 

associating with Appellant for the alleged purpose of taking business 

away from Appellee. Appellee’s suit is also based on, relates to, and/or 

is in response to Appellant’s exercise of the right of free speech because 

it is based on Appellant’s alleged use and disclosure of information. 

Such allegations directly implicate the TCPA, and Appellee failed to 

introduce clear and specific evidence of each element of its claims.

Preferred responds that it should prevail on appeal due to, among other things, 

QCP’s “[f]ailure to argue an issue necessary to win [this] appeal.” Preferred 

contends QCP “assumes” the TCPA applies despite Preferred’s assertions in the trial 

court that the TCPA is inapplicable based on two statutory exemptions—sections 

27.010(a)(2) and 27.010(a)(5)—and this Court’s holdings in Dyer and subsequent 

cases regarding private communications in business disputes. 

“When a separate and independent ground that supports a ruling is not 

challenged on appeal, we must affirm the lower court’s ruling.” In re Ruff Mgmt. 

Trust, No. 05-21-00937-CV, 2023 WL 4446297, at *2 (Tex. App.—Dallas July 11, 
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2023, no pet.) (mem. op.). Here, Preferred argued in the trial court that the TCPA is 

inapplicable on several bases, each of which constituted an independent ground that 

could support the trial court’s ruling. See TEX. CIV. PRAC. & REM. CODE 

§§ 27.010(a)(2), 27.010(a)(5); Dyer, 573 S.W.3d at 427–28; see also Baylor Scott & 

White v. Project Rose MSO, LLC, 633 S.W.3d 263, 285–86 (Tex. App.—Tyler 2021, 

pet. denied) (concluding that “arising from” in § 27.010(a)(5) means “to originate; 

to stem from,” and rejecting argument that party against whom the “arising from an 

independent contractor relationship” exemption applies must be a party to the 

contract involved). QCP did not address or mention any of these bases in its appellate 

brief. Because QCP failed to challenge every independent basis supporting the trial 

court’s ruling, we must affirm that ruling. Ruff Mgmt. Trust, 2023 WL 4446297, at 

*2; Duncan v. Acius Grp., LP, No. 05-18-01432-CV, 2019 WL 4392507, at *6 (Tex. 

App.—Dallas Sept. 13, 2019, no pet.) (mem. op.); Morrison v. Profanchik, No. 05-

17-00680-CV, 2018 WL 4090635, at *4 (Tex. App.—Dallas Aug. 28, 2018, pet. 

denied) (mem. op.). 

The Court has considered Preferred’s request for sanctions on the basis that 

this appeal is frivolous, but at this time declines to order sanctions. See TEX. R. APP.

P. 45. We have considered the parties’ relative positions and their legal merit. We 

have considered QCP’s meager briefing before this Court. We have considered 

QCP’s counsel’s performance during oral argument, including a representation that 

this was counsel’s first appellate proceeding. At this time, based on our analysis of 
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all factors appearing in the “record, briefs, or other papers filed” in this court, we 

will not order sanctions. See id.

Separately, the trial court’s ability to grant sanctions to Preferred remains 

pending in the trial court as the case moves forward. See TEX. CIV. PRAC. & REM.

CODE § 27.009(b). And, neither we nor the trial court may be the last word on 

sanctions; should this appeal proceed before the Texas Supreme Court, that court

may undertake a separate inquiry to determine “that a direct appeal or a petition for 

review is frivolous” and may award “just damages.” See TEX. R. APP. P. 62.

We affirm the trial court’s order denying QCP’s TCPA motion to dismiss. 

221374f.p05

Smith, J., concurring

/Cory L. Carlyle/

CORY L. CARLYLE

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

QUALITY CLEANING PLUS, 

INC., Appellant

No. 05-22-01374-CV V.

PREFERRED STAFF, LLC, 

Appellee

On Appeal from the 134th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DC-22-08606.

Opinion delivered by Justice Carlyle. 

Justices Smith and Kennedy 

participating.

In accordance with this Court’s opinion of this date, the order of the trial court 

is AFFIRMED.

It is ORDERED that appellee PREFERRED STAFF, LLC recover its costs 

of this appeal from appellant QUALITY CLEANING PLUS, INC.

Judgment entered this 26th day of September, 2023.