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 
2

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.
3

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. 
4

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. 
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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, 
6

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,3and 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. 
7

(“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).
8

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).
9

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).
10

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”).
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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.”
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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 
13

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”).
14

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).
15

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 
16

interest” is alleged; rather, the allegations implicate private intereststhat 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.”).
17

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.