OPINION
Appellant, Cuidado Casero Home Health of El Paso Inc., appeals from a grant of a summary judgment in favor of Appellees, Ayuda Home Health Care Services LLC (“Ayuda Home Health”), Edwing A. Martinez, Lizette Martinez, Jesus R. Rodriguez, and Olga L. Rodriguez. Appellant raises four issues on appeal. We affirm in part and reverse and remand in part.
BACKGROUND
Appellant is a home health care agency that provides home health care, hospice care, and primary care to patients in the city of El Paso. Appellees Edwing A. Martinez, Lizette Martinez, Jesus R. Rodriguez, and Olga L. Rodriguez are former
That same month, Appellant sued Appel-lees for misappropriation of trade secrets, breach of contract, breach of fiduciary duty, tortious interference, conversion, and disgorgement. In particular, Appellant’s claims asserted that Appellees misappropriated Appellant’s confidential and proprietary information for their own commercial use in the form of client lists, supplier lists, client contact information, policy and procedure and employee manuals, and procedure forms. Appellant alleged that Appellees had induced Appellant’s clients to transfer to Ayuda Home Health and, as a result, Appellant suffered lost profits.
In part, Appellees answered the suit with a general denial and asserted counterclaims against Appellant. In December 2010, Appellee Olga L. Rodriguez moved for summary judgment on no-evidence and traditional grounds as to all of Appellant’s claims. The other Appellees jointly filed a motion for summary judgment in March 2011 asserting no-evidence and traditional grounds.
DISCUSSION
Appellant raises four issues for our consideration, each alleging that the trial court erred in granting Appellees’ summary judgment motions.
Standard of Review
We review a trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
A no-evidence motion for summary judgment is essentially a pretrial
However, less than a scintilla of evidence exists when the evidence is so weak that it does no more than create a surmise or a suspicion of a fact. Id. A fact question exists when the summary judgment record contains inconsistent or conflicting summary judgment proof. Rankin v. Union Pac. R. Co.,
A party seeking a traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Diversicare Gen. Partner., Inc. v. Rubio,
UNCHALLENGED RULINGS
As an initial matter, Appellees point out that although Appellant has challenged the summary judgment in its entirety, Appellant does not challenge the summary judgment as to its tortious interference claim on appeal. Therefore, Ap-pellees assert that the grounds raised to defeat Appellant’s claim must be presumed to be valid. Appellant concedes that is has not challenged the summary judgment on its claim for tortious interference. Where the trial court’s order does not state the basis for granting summary judgment, appellant must show that none of the grounds proposed support the judgment granted. Harris v. Ebby Holliday Real Estate, Inc.,
For the same reasons, Appellees also contend that the validity of the grounds raised as to Appellant’s request for disgorgement must also be true. However, disgorgement is not a cause of action, but an equitable remedy applied to breaches of fiduciary duty. See Meridien Hotels, Inc. v. LHO Fin. P’ship I, L.P.,
MISAPPROPRIATION OF TRADE SECRETS
In Issue One, Appellant argues that the trial court erred by granting Ap-pellees’ no-evidence motions for summary judgment on its misappropriation-of-trade-secrets claim because the evidence was sufficient to demonstrate each element of the claim. The elements of a misappropriation-of-trade-secrets claim are: (1) the existence and ownership of a trade secret; (2) the breach of a confidential relationship or improper discovery of a trade secret; (3) use or disclosure of the trade secret; and (4) damages to the owner. Rusty’s Weigh Scales & Serv., Inc. v. North Tex. Scales, Inc.,
Appellant specifically claimed damages in the form of lost profits. A party can recover lost profits only if they are proven with reasonable certainty based upon objective facts, figures, or data from which the amount can be ascertained. See Rusty’s Weigh Scales & Serv., Inc.,
In response to Olga L. Rodriguez’ no-evidence summary judgment challenge to the damages element, Appellant relied on its own response to a supplemental request for disclosure as evidence of damages. Specifically, Appellant pointed to its supplemental response which sets out the amount and calculation method of its damages. Appellant’s supplemental response stated:
In calculating the amount of lost profits, Plaintiff seeks the value of lost revenue proximately caused by Defendants in the amount of $1,085,925. This amount is based upon the business infringement on Plaintiff caused by Defendants’ action and loss of patient revenue. In calculating the amount of disgorgement, Plaintiff will aggregate the wages, monies, income, and other compensation and benefits received by Defendants relating all transaction conducted from the inception of any business engaged in competition with Plaintiffs business. The amount received by Defendant to be disgorged to Plaintiff is believed to be approximately $500,000.
On appeal, Appellant cites to the evidence presented in response to the other Appellees’ motion for summary judgment, and not to any evidence it produced in response to Rodriguez’ motion for summary judgment. However, on appeal, we may look only to proper summary judgment evidence. See Tex.R. Civ. P. 166a(c), (d). The evidence raised by Appellant in response to another party’s motion for summary judgment is not proper evidence to be considered when reviewing a separate and independent motion for summary judgment. See Saenz v. S. Union Gas Co.,
In its reply brief, Appellant argues that its summary judgment evidence raises a fact issue on the element of damages. Appellant relies on Enterprise Leasing Co. of Houston v. Barrios,
Our review of all the evidence presented by Rodriguez’ motion and Appellant’s response to that motion, in the light most favorable to Appellant, leads us to conclude that the evidence is not sufficient to raise a fact issue on damages. In fact, Appellant’s response provides a numerical value of the lost revenue sought by Appellant, and sets out the basis for that to be Appellees’ alleged business infringement and loss of patient revenue. Appellant also gives the amount it seeks to disgorge from Appellees and sets out the method it will employ in calculating the disgorgement amount. However, there is no discussion of how the amounts cited were arrived at, nor any calculations or information on what they were based. The response is void of any methodology employed in arriving at either the lost revenue or the disgorgement amount. Lost profits must be non-speculative and corroborated. Rusty’s Weigh Scales &
The Other No-Evidence Motion for Summary Judgment
Appellant argues that its response presented sufficient evidence of damages for the misappropriation-of-trade-secrets claim because it set out evidence of lost patient contracts and lost profits. Specifically, Appellant presented the affidavit testimony of Melissa Avila,
Appellant also provided deposition testimony excerpts from Robert McLemore, Appellant’s Director of Nursing at the time of Appellee’s resignation in 2009, and Shirley Perkins, who acted as Appellant’s Director of Services during the same time period. McLemore testified that there was a “rash of discharges” when Appellees resigned which reduced the patient census. McLemore estimated that Appellant’s patient census dropped by thirty patients. Similarly, Perkins testified that Appellant’s patient count dropped after February 2009.
On appeal, Appellees maintain that Avila’s affidavit provides only a bare assertion that Appellant lost profits and as such argue that Appellant failed to present any evidence of damages. Relying on Frank B. Hall & Co. v. Beach, Inc.,
In Frank B. Hall & Co. v. Beach, Inc.,
Unlike the cases relied upon by Appellant, Avila’s affidavit testimony did not state that she had firsthand knowledge of Appellant’s financial data. Furthermore, her calculation of lost profits was not based on a review of invoices, but on a review of patient charts. Her affidavit testimony did not quantify the percentage of costs and profit and did not explain or provide any outline of the methodology used to calculate Appellant’s lost profits. Additionally, there was no testimony from Avila indicating that the thirty patients who were alleged to have been lost due to Appellees’ actions would have remained with Appellant. The evidence showed that the patients were not under any contract with Appellant and were free to choose which agency to use for their care. Avila’s testimony also did not show how much profit Appellant would have made on each individual patient.
Lost profits must be non-speculative and corroborated. Rusty’s Weigh Scales & Serv., Inc.,
Because Appellant failed to present evidence of damages, the trial court properly granted summary judgment in favor of Appellees on Appellant’s claim for misappropriation of trade secrets. See Holt Atherton Indus., Inc.,
CONVERSION, BREACH OF CONTRACT, AND BREACH OF FIDUCIARY DUTY
In Issues Two through Four, Appellant contends that the summary judgment in favor of Appellees must be reversed because disputed issues of fact exist as to its claims for conversion, breach of contract, and breach of fiduciary duty.
Appellee Olga Rodriguez’ No-Evidence Motion for Summary Judgment
Conversion
In Issue Two, Appellant asserts that its conversion claim is based on Rodriguez’
Conversion is the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner’s rights. Vibbert v. PAR, Inc.,
In her no-evidence motion for summary judgment, Rodriguez asserted that Appellant’s claim for conversion failed despite Appellant’s allegation that she exercised dominion and control over its property, because Appellant failed to offer any evidence that Rodriguez had converted a single item of Appellant’s property. In response to Rodriguez’ motion, Appellant argued that it had produced sufficient evidence to support its conversion claim based on its misappropriation-of-trade-secrets argument and because, during discovery, Rodriguez produced documents evidencing her misappropriation of Appellant’s confidential and proprietary information, including trade secrets, Appellant argued that, during discovery, Rodriguez produced documents containing the notation “CC 12/02” in the lower left corner. Appellant then directed the trial court to Melissa Avila’s affidavit. Avila’s affidavit explained that the notation “CC 12/02” was used by Appellant to identify its company documents.
Appellant contends that the foregoing evidence relating to Rodriguez’ use of confidential trade secrets is also evidence that creates a fact issue on its conversion claim. In support of its argument, Appellant also refers us to the “Acknowledgment of Em
The taking of a party’s confidential client list and trade secrets can be the basis for a conversion claim. See Chandler v. Mastercraft Dental Corp.,
Based on the summary judgment record before us, the trial court could have determined that Appellant failed to produce any evidence that Rodriguez assumed or exercised dominion and control over Appellant’s property in an unlawful or unauthorized manner, to the exclusion of and inconsistent with Appellant’s rights. Here, there is no evidence suggesting that Rodriguez took any of Appellant’s confidential business information, that she intended to deprive Appellant of the information, or that she used or intended to use that information in a manner that was inconsistent with Appellant’s rights.
However, the evidence showed that Rodriguez’ nursing responsibilities included participating in the patient discharge planning process, coordinating services for the patient, informing the physician of changes in the client’s needs, and using appropriate communication strategies to affect positive client-care outcomes. The evidence also showed that, upon admission, Appellant’s clients received information on their rights as patients, which included the right to request services from a home health care agency of their choice, full information from their agency about services provided, and the alternatives available to them.
Breach of Contract
In Issue Three, Appellant contends that disputed issues of fact require reversal of the summary judgment on its breach-of-contract claim. To recover for breach of contract, a party must prove the existence of a valid contract, performance or tendered performance by the plaintiff, breach of contract by the defendant, and damages resulting because of defendant’s breach. See Godfrey v. Sec. Serv. Fed. Credit Union,
Did the parties enter into a confidentiality and non-compete agreement?
Rodriguez’ no-evidence motion for summary judgment alleged that Appellant had failed to produce any evidence that she entered into a covenant not to compete with Appellant. In her summary judgment affidavit, Rodriguez states that she did not execute a confidentiality and non-compete agreement in 2004, and that, at that time, Appellant was aware that Rodriguez was employed by its competitors. Appellant contradicted Rodriguez’ affidavit with Avila’s affidavit in which Avila explains that she facilitated the hiring process and orientation of Rodriguez in August 2004. During the orientation process, Avila provided Rodriguez with a confidentiality and non-compete agreement. At that time, Rodriguez did not refuse to sign the agreement. Avila witnessed Rodriguez sign and execute the agreement, and then placed it in Rodriguez’ personnel file. According to Avila, subsequent audits of Rodriguez’ file showed that Rodriguez had signed a confidentiality and non-competition agreement. Avila explained that the agreement went missing only after Appel-lee Jesus R. Rodriguez was entrusted with maintenance of the personnel files in 2008. Appellant also presented a copy of a “Confidentiality and Non-Competitive Agreement” which contains the initials of Appellant’s unidentified representative, the word “refuse” written on the employee signature line, and a handwritten date that appears to be October 10, 2004. During her deposition testimony, Rodriguez was questioned about that agreement. Rodriguez
Rodriguez’ Traditional Motion for Summary Judgment
Rodriguez also moved for a traditional motion for summary judgment on Appellant’s breach of contract claim, and asserted that the statute of frauds barred the claim because Appellant was suing on an agreement that could not be performed in less than one year. On appeal, Appellant contends that Rodriguez did not conclusively establish that the statute of frauds applied to the non-compete agreement. Additionally, Appellant argues that the statute of frauds does not apply to the non-compete agreement and therefore, the trial court erred in granting summary judgment on that basis.
Whether an agreement falls within the statute of frauds is a question of law. Beverick v. Koch Power, Inc.,
Rodriguez bore the burden of conclusively establishing all the elements of her affirmative defense as a matter of law such that there is no genuine issue of fact. See Tex.R. Civ. P. 166a(c); Moritz v. Bueche,
The non-compete agreement specifies that the agreement applies during the
As Rodriguez has failed to conclusively establish her affirmative defense and because a genuine issue of material fact issue exists regarding whether the parties entered into a valid, written non-compete agreement, we conclude summary judgment on Appellant’s breach of contract claim was not warranted. See Frost Nat. Bank,
Breach of Fiduciary Duty
In Issue Four, Appellant asserts that the trial court could not have properly granted summary judgment on its breach-of-fiduciary-duty claim based on the evidence that Appellant presented. In its reply brief, Appellant argues that evidence that Rodriguez used Appellant’s trade secrets is grounds for a claim for breach of fiduciary duty. Appellant refers us to Avila’s testimony establishing that, while still employed with Appellant, Rodriguez requested that a doctor transfer a patient’s care from Appellant to Ayuda Health as evidence that Rodriguez breached her fiduciary duty by soliciting Appellant’s clients.
Under an agent-principal theory, Texas courts have held that certain employees have a fiduciary duty to their employers. See Johnson v. Brewer & Pritchard, P.C.,
In her no-evidence summary judgment motion, Rodriguez alleged that there was no evidence that she had breached any
We disagree with Rodriguez’ argument that Appellant produced no evidence of a breach of fiduciary duty. Here, the record establishes that Rodriguez had access to confidential patient files while employed with Appellant, that she discharged several patients prior to her resignation, that several of those patients were discharged to Ayuda Health Care shortly before or after Rodriguez’ resignation, that Rodriguez already knew she was going to resign before she discharged some of the identified patients, that Rodriguez requested a transfer order switching a patient’s care from Appellant to Ayuda Health Care, and that Rodriguez was part owner of Ayuda Home Health Care. Therefore, when we view the evidence in the light most favorable to Appellant and indulging all inferences in Appellant’s favor, we conclude Appellant presented more than a scintilla of probative evidence that raises a genuine issue of material fact on the issue of whether Rodriguez breached a fiduciary duty owed to Appellant. See Tex.R. Civ. P. 166a(i); King Ranch, Inc.,
Rodriguez’ Traditional Motion for Summary Judgment
In her traditional motion for summary judgment on Appellant’s breach-of-fidueiary-duty claim, Rodriguez asserted that her implementation of Appellant’s “Client Bill of Rights” could not constitute a breach of fiduciary duty. On appeal, Rodriguez maintains that she showed that she was entitled to traditional summary judgment on that claim because the actions Appellant complained of were mandated by Appellant’s “Client Bill of Rights.” Rodriguez cites no authority or case law to support her argument. Nonetheless, we conclude the argument is meritless because a breach of fiduciary duty can be based on an employee’s use of an employer’s confidential or proprietary information in a manner adverse to the employer. See Johnson,
The Other Appellees’ Motion for Summary Judgment
In their no-evidenee motion for summary judgment as to the claims of breach of contract, breach of fiduciary duty, and conversion, the other Appellees asserted that they were entitled to summary judgment on all of Appellant’s claims because Appellant failed to present any evidence of damages. On appeal, Appel-lees maintain that summary judgment as to all of Appellant’s claims was proper because Appellant presented no evidence of lost profits.
Damages are an essential element of a party’s claims for breach of contract, breach of fiduciary duty, and conversion. See Godfrey,
As was discussed in Issue One, Appellant offered no evidence that it sustained damages, and thus, the trial court properly rendered summary judgment in favor of Appellees on Appellant’s claims for breach of contract, breach of fiduciary duty, and conversion. See Tex.R. Civ. P. 166a(i); Carr,
CONCLUSION
We affirm the trial court’s judgment in its entirety as to Appellees, Ayuda Home Health, Edwing A. Martinez, Lizette Martinez, and Jesus R. Rodriguez. We affirm the trial court’s judgment granting summary judgment in favor of Appellee Olga L. Rodriguez on Appellant’s claims for misappropriation of trade secrets and conversion. We reverse the trial court’s judgment granting summary judgment as to Appellee Olga L. Rodriguez on Appellant’s claims for breach of contract and breach of fiduciary duty. This case is remanded for further proceedings.
Notes
. Appellees worked in the following positions at different times during their employment with Appellant: Edwing A. Martinez was a field nurse and Director of Nursing; Jesus R. Rodriguez was a field nurse and Assistant Director of Nursing; Lizette Martinez and Olga L. Rodriguez were field nurses.
. We note that unlike Appellee Olga L. Rodriguez’ no-evidence motion for summary judgment, these Appellees’ challenged the damages element of each of Appellant’s causes of action in their no-evidence motion for summary judgment. Whereas, Rodriguez only challenged the damages element of Appellant’s claim for misappropriation of trade secrets.
. This affidavit differed from the one Appellant attached in response to Olga L. Rodriguez' summary judgment motion.
. According to Avila’s affidavit, Medica Health Management has a contractual relationship with Appellant through which Avila oversees Appellant’s clinical operations and assists with matters involving patient care.
. In its first amended petition, Appellant alleged that Rodriguez took supplies, client lists, client contact information, supplier lists, and the policies and procedure and employment manuals from Appellant and that she did not return Appellant’s property upon resignation.
. Here, Appellant again cites to the evidence it presented in response to the other Appel-lees’ summary judgment motion and not to the evidence it produced in response to Rodriguez’ summary judgment motion. Because we may only look to proper summary judgment evidence, we do not consider the evidence raised by Appellant in response to the other parties’ motion for summary judgment when reviewing Rodriguez’ separate and independent summary judgment motion. See Tex.R. Civ. P. 166a(c),(d). Saenz,
. In her summary judgment affidavit, Rodriguez stated that within a reasonable time before leaving her employment with Appellant, she informed her patients that they would be provided with a new nurse due to her change in employment, and that in response to specific patient requests who stated a desire to continue receiving their care from Rodriguez, she informed them of the alternatives available to them, including the ability to request services from the home health care agency of their choice.
. At least two of the five patients were patients that followed Appellee from agencies she had previously worked with and wanted to continue their care with Appellee.