*1 405 Alliance, 878 Missionary that decision Christian & that court interference with (1st Cir.1989)). Here, it is liability 1575, 1577 of in this through imposition tort F.2d impinge Orig matters of upon Penley’s case would Amended clear from Second governance church violation of First professional-negli that inal Petition her 426 Milivojevich, Amendment. See U.S. unconstitu gence against claim Westbrook 713, inqui that an (noting at 2372 96 S.Ct. of upon internal matters tionally impinges ry complied into the church with whether of the First church in violation governance regulations prohibited is church laws Penley’s pleading Because Amendment. Amendment); also by the First see United subject- affirmatively negates the court’s Church, Baltimore Annual Methodist properly the trial court jurisdiction, matter White, 790, Conference, v. 571 A.2d 794 the case. dismissed (D.C.1990) (stating of “secular evaluation or can procedures ecclesiastical law requires non church follow is ap- Accordingly, we the court of reverse of precisely type inquiry First dismiss case peals’ judgment and Minker, prohibits”); 894 F.2d Amendment subject-matter jurisdiction. want of (holding juris lack at 1358-59 civil courts interpret provisions diction to of Unit Discipline
ed Methodist Church’s Book of
governing pastoral appointments); Haf
ner, at F.Supp. (dismissing 616 737-39 alleged
pastor’s denial of benefits suit interpretation syn
based on of the church constitution).
od SHARMA, Dhingra, Amit Ravin Ashvin Penley’s Pleadings
G. Rew, Bansal, James Chemtrade Solu- juris to the plea Westbrook’s Yang tions, Inc., Amer- Chemical Woo challenges Penley’s pleadings diction Inc., ica, Inc., Chemtrading, J & J jurisdictional not the facts. existence Appellants, Accordingly, pleadings we construe those v. favor, Penley’s taking as true facts INTERNATIONAL, VINMAR pled subject-matter to determine whether Overseas, LTD., Vinmar jurisdiction exists this case. See Mi Ltd., Appellees. randa, at 226. If the plead 133 S.W.3d ings affirmatively negate the existence No. 14-05-01088-CV. jurisdiction, plea jurisdiction to the must Texas, Appeals Court granted not repleading be allowed. Dist.). (14th Houston determining Id. at whether sub 227. exists, ject-matter jurisdiction courts must 25, Jan. 2007. look to and effect of a the “substance Rehearing En Rehearing and Banc complaint to its plaintiffs determine eccle 26, July Overruled implication, not its emblemata.” siastical Fiorenza, Tran v. S.W.2d 1996, no
(Tex.App.-Houston [1st Dist.] v.
pet.) (citing Green Pentecostal United Int’l, (Tex.App.
Church denied) v. pet.
Austin and Natal
4H *7 conducting day evidentiary hearing a two injunc- the trial court entered a temporary that, among things, prohibits tion other (1) appellants using subleasing from: Hamina, storage certain chemical tanks in purpose Finland for the of storing isoprene (2) Russia; purchased monomer from purchasing, transporting, storing, market- ing, selling trading isoprene monomer produced that is caprolactum Russia or supplied either from Mexico or Belarus or sold China.3 issues, appellants six con- tend the trial court abused its discretion by granting temporary injunction be- Steele, Farrell, Lynn Howard Jay John (1) injured allegedly party, cause Vin- Cohen, Sharma, Murry Houston, B. Ravin Overseas, (“VOL”), mar Ltd. was not be- Bansal, Amit Dhingra, Spring, Ashvin during temporary fore the trial court appellants. (2) injunction hearing; temporary in- Enoch, Craig Austin, David Fowler junction exceeds the requested by relief Johnson, O’Neill, Hill, John Ellis John L. (3) appellees; the trial court blocked dis- Jr., Falk, Sheryl Stephen Anne W. Schuel- covery and pre- excluded evidence that er, Arnot, III, Houston, Guy William vented presenting from their appellees. (4) hands; appellees defense unclean did (5) secrets; prove they not owned trade ANDERSON, Panel consists of Justices appellees prove they did not suffer would HUDSON, and GUZMAN. irreparable injury they for which had no (6) adequate legal remedy; and tempo- OPINION injunction rary is overbroad as it is not ANDERSON, secrets, narrowly protect JOHN S. Justice. tailored to trade prevents competition. lawful af-We accelerated, interlocutory This is an ap- firm. peal1 from the granting temporary injunction against appellants, Ravin Shar- Background Procedural
ma, Bansal, Dhingra, Amit Ashvin James (“Chem- Rew, Solutions, brought Chemtrade Inc. On June 2005 Vinmar suit trade”), America, Yang against appellants requesting temporary Woo Chemical Inc. *8 Woo”), order, (‘Yang Chemtrading, and J & restraining temporary perma- J and (“J J”) injunctions, Inc. appellee & favor of Vinmar nent and other relief. That (“Vinmar”).2 International, day, temporary Ltd. After same Vinmar obtained a group, 1. TEX. CIV. PRAC. & REM. CODE ANN. with these as a we shall 51.014(a)(4) (Vernon § Supp.2006). appellants.” refer to them as “the Rew 2. While all defendants in the trial court col- complete 3.The trial court’s Amended Order lectively single appeal, filed a notice of Temporary Injunction for Issuance of is set America, Inc., appellants Yang Woo Chemical Appendix. out in the attached Inc., Chemtrading, J & J and James dealing submitted a brief to this court. When with the deci- company at a restraining against appellants. particular The son order authority, person the fact the making sion temporary injunction hearing occurred on chemical has purchasing a responsible August and 2005. On August 15 shipping such as particular preferences litigation. intervened in the No 2005 VOL methods, company particular has to strike intervention was motion VOL’s seasonal might geographical, that be needs filed. 2005 the trial court On October factors. Vinmar’s confidential or other for Issuance of issued its Amended Order in- product includes knowledge base also Injunction. interlocutory Temporary This requirements formation such as the appeal followed. chemical; sales and storing particular a in- trend purchase provide histories which Background4 Factual shrinking of growth about the formation Trading A. Is a Successful Vinmar supplier’s needs or particular a customer’s Company. availability; profitability of Vin- product traders; profit margins pricing is an international chemical and Vinmar mar’s forms; all trading company conducting policies; business internal documents has arrangements over the world. Vinmar been busi- terms of with customers contracts; twenty-eight years ness for almost and has costs suppliers; structure ar- grown original employees financing from four to and terms of expenses; more than employees rangements. Finally, supply offices around Vinmar’s globe. gross moving place In 2004 Vinmar’s reve- from its chains for chemical nues exceeded billion. to customers is of manufacture Vinmar’s $1.3 knowledge confidential
part of Vinmar’s Key B. Trade Are a Vinmar’s Secrets knowledge gives base. This base to Vinmar’s Success. competitors, and advantage an over their nature they vigorously protect the secret trading personal The of chemicals is a of this information. on relationships business built between the traders, this informa- suppliers, purchasers publicize of the does not time, ef- trading companies significant tion and has devoted products. Successful time, fort, money, maintaining like devote and re- resources to develop they confidential nature of this information. sources best contacts they secrecy of get encourage employ- steps protect can their Vinmar’s knowledge base include: controlled develop strong relationships ees to with this required are to enter Vin- supplier their and customer contacts. Vin- access cards offices, spent years computers password mar are has and millions dollars mar’s protected, employees required its all are developing knowledge base behind ac- confidentiality agreements trading successful business. Vinmar’s con- execute the confidential and secretive knowledge knowledging fidential base includes customer of the as a condition of contact information. This contact informa- nature information employee emphasize manuals just knowledge employment, than that a tion is more nature of busi- company pur- manufactures or the confidential Vinmar’s particular ness, to information is on particular chemical. It includes and access chases per- basis such information such as who is the actual need-to-know *9 ruling. Motorsports, Inc. v. Hen light T-N-T 4. The factual recitation is stated in the 18, Inc., nessey Motorsports, favoring ruling, the trial court’s with conflicts pet.). no support (Tex.App.-Houston Dist.] parties’ [1st evidence in of resolved Rew, J, Yang & and Woo had litigation, at files. J traders cannot look each other’s isoprene caprolactam. traded or not The trial court found Vinmar’s confiden- as trade secrets. qualifies tial information banking and manager was a of Bansal Through his documentation at Vinmar. Appellants’ The Individual Roles at C. every gained access to position, Bansal Vinmar. chemical divi- contract in Vinmar’s sales (Rew, Sharma, The individual duties, saw part sion. As of his Bansal Bansal, Dhingra) and are all former Vin- a trade of the documents that defined most appel- employees. mar Each individual each would create a sales folder for lant, employment, of was included, things, as condition among that other trade confidentiality finance, required execute a price. Banking, the customer and credit, agreement containing Ban- non-competition and letters of all items within provision. Each critical to- Vin- responsibilities, confidential information are sal’s title, prohib- they as ensure Vin- agreement, regardless of mar’s financial success employed by employee, gets paid. ited each while mar Vinmar, in a investing engaging from fi- Dhingra operations, the head of In addi- competing with Vinmar. business nance, management for Vinmar. and risk tion, required each em- agreements manager, Dhingra position In as risk his confidentiality of all to maintain the ployee trading all chemical assessed of Vinmar’s related to business. information Vinmar’s verify the traders were contracts policies with compliance
In hired Rew. Prior to In up. contracts matched supply and sales Vinmar, as Rew had never worked joining role, to most con- Dhingra had access Vinmar, this Rew a chemical trader. While at all of the traders’ files tracts and By the time he primarily styrene. traded meetings. resigned personal for unstated reasons position to the of July Rew had risen Goradia, Hemant Despite the doubts of di- manager of Vinmar’s chemical general Vinmar, Vinmar president the current of had access to position, vision. In that out of business straight Sharma hired profit files of all chemical traders in 1997. When as a trainee-trader school profitability of the products and knew hired, instructed he was Sharma was Two transportation chains. various develop new busi- management Vinmar, resigned he from months before ultimately led to the fines and this ness J, Hong Kong J & Rew established Russian development Vinmar’s competitor a direct of Vinmar. company, as By resigned the time Sharma business. and J.D. forty percent Vinmar, Rew owns of J & J man- marketing he was the from sixty for iso- remaining percent. global product leader ager Choi owns he the chemicals underlying caprolactam, this liti- prene Prior to the incidents traded for Vinmar. majority of Rew’s business gation, the vast styrene. trading at J & J involved Iso- Involvement With D. Sharma’s fact, himself as In Rew describes Caprolactam. prene and styrene trader. addi- biggest world’s J, Yang started work is involved with When Sharma tion to J & Rew new developing assignment underlying this with Prior to the events Woo.5 during apparent separation, Rew testified Yang with Woo is 5. Rew’s exact connection people the two deposition that confuse his J.D. Choi is the sole clear in the record. not they operate almost the same companies as J as Yang Choi and Rew formed owner Woo. J, entity. Despite joint according to Rew. venture & a *10 Finland, lines, in for envi- product spent he several months re- business 2003 when markets, reasons, loading of ronmental banned the searching products, suppliers, directly from rail cars onto tank- products isoprene and customers. One of the Shar- In the lease investigated Isoprene negotiated ma was ers. Sharma isoprene. is in storage tank relatively product isoprene capable a rare chemical used in of an Hamina, Finland. was the lessee of prod- the manufacture of various adhesive VOL Hamina the tank. described the sticky pads. ucts such as that used in Sharma storage key tank as the to the entire iso- high Because international is for demand Both and prene business. VOL Vinmar isoprene relatively product, and it is a rare isoprene. used the Hamina tank to store potential the to from trad- profits be made employee charged was the However, Sharma Vinmar ing isoprene high. isoprene are responsibility maintaining with the very product is a unstable it must be as lease of the Hamina tank. kept pressurized. of the volatile Because isoprene, working nature of out a secure fact a in Despite isoprene is chemical supply simple quick chain was not a high supply, demand and short Vinmar’s Sharma, conjunction in task. with Vin- isoprene profit- business did not become agent, Enterprises, mar’s Russian Kachire Sharma, until in a March able 2003. (“Kachire”), Limited began searching for Goradia, email to wrote: “our efforts to isoprene sources of in in It Russia product inspite stick with the of initial [sic] was not until much after trial and years losses made on the first few deals six error, that Sharma and his Kachire associ- (not ago including logistical all of the ates located a Russian supplier of iso- had) nightmares management we hesi- prene,6 isoprene, customers for the it, finally paying tation to continue with logistics getting worked out the for big way.” payoff off in a That was now isoprene supplier from the Russian to Vin- million in profit the first five months $5.5 mar’s It customers. was then that Vinmar alone, predicting of 2005 with Sharma isoprene made its first trade. profits would continue for the foreseeable future. Initially, isoprene in shipped
specialized rail cars from the manufacturer fashion, developed similar Sharma Hamina, to Finland isoprene where the caprolactam Vinmar’s business. Sharma directly was loaded Univex, A., onto tankers. While made the initial contact with S. Sharma started a searching storage caprolactam a in Mexico. manufacturer tank in as soon as he located a From that initial contact learned Sharma isoprene, Russian source of a tank became products about Univex’s his effort absolutely isoprene develop essential to and convince relationship Vinmar’s is, one, Goradia, only Togliatti, 6. Both Sharma Hemant there is that sells for Vinmar, Goradia, president According export. testified about the efforts required supplier to locate a stable of Russian learned this information trial and error isoprene. development through people. Sharma testified the the efforts of their local Initially, prop- did business was time not know who the First, consuming process. Togliatti, Sharma located er contacts were at the Russian iso- industry publications prene supplier, generally names in various or in Russia about Then, set-up isoprene. made initial contact. meet- investment he It took considerable business, ings, develop social as well as of time to not make the contact with relationship. publications like Goradia testified while there whoever is shown many responsible plants are chemical Who in Chemicals” as Russia listed "Who’s industry publications particular product, really identify various as sellers of iso- but to prene, eventually reality producer. learned the decision makers at the *11 Vinmar, Sharma, employees Univex to do Shar- business with such as By completed Finngas, ma the at a the lessor of the tank. late first transactions Sharma, addition, May, he was who had decided loss for Vinmar. In Sharma Vinmar, definitely began to going leave develop worked with to Kachire discussions with and Rew about Abbas caprolactum Belarus. In business out of addition, in opening an office Moscow. In instances, caprolac- both Vinmar sold the gave isoprene summary Sharma Rew an in tum China. prepared working Sharma while for Vin- Vinmar, E. Plots Leave Sharma to summary mar. This information contained Rew, demand, customers, Join and Take the Hamina product about Tanks. gave he suppliers. Sharma also admitted caprolactum J & J Vinmar’s Mexican con- $352,000 being paid salary in Despite in- tact information. Sharma knew Rew 2004, spring and bonus in the of during go to after Hamina tanks. tended the his 2005 Sharma became dissatisfied with East, Upon his return from Far Shar- the simultaneously at role Vinmar. Almost part May avoiding spent ma the latter discontent, rising April with Sharma’s in Virtanen, the Viejo direct contact with approached by 2005 Rew was a client seek- manager Finngas of the Hamina tank ing isoprene. attempted, through Rew the farm. internet, isoprene use of the to obtain making his own While Sharma was his own. Row’s effort was unsuccessful. was maintain plans, attempting to effort, Following May unsuccessful and, in its control over the Hamina tank Rew started friend talking to his fact, tanks it had increase number of part about As hiring Sharma Sharma. 2005, April in- under lease. Goradia effort, during May, part the middle only Sharma to not renew the structed Rew, Texas, Houston, a resident invited tank, to get Hamina but also Houston, Texas, Sharma, also a resident of capable at Hamina isoprene other tank meeting Kong to a to discuss not Hong 31, 2005, May well. under lease as As of Sharma, only hiring creation of but the ready to Finngas was lease both tanks Worldchem, trading a new com- chemical at the period for a three month Rew also Abbas Sadakat pany. invited rate. existing represented rental Sharma Jain, Manjul employees Kachire both taking that he care of re- to Vinmar was Sharma, closely to the who worked with newing specifi- the Hamina tank lease meeting, meeting. Abbas attended cally stated he had obtained a one week During meeting, did not.7 Jain May to the 2005 renewal extension isoprene ca- participants also discussed the deadline. tanks coin- pable storage at Hamina. Not cidentally, VOL’s deadline to renew Virtanen telephoned On June May leasing isoprene Hamina tank 2005. tanks. Virta- lease was about nen, only by key never of & J or knowledge This who had heard J possessed Among Hong Kong refusal the issues of time. Sharma testified that Jain’s discussed ownership The own- was the of Worldchem. join company the new led to its failure percentages: However, ership was broken down really got before it ever started. 25.5%, 15%; Jain: Sharma: Abbas: 25.5% enough operated long at least Worldchem not reveal and Rew: The record does 17%. disruption its apply trade insurance for remaining The disposition of 17%. originating projected trade in Russia plan Jain’s own- initial called for Rew to hold Hamina, through shipping Finland. ership amount interest an undetermined call, go confirmed to with Sharma immedi- Yang prior Woo to Rew’s cided Vinmar. tanks, currently negoti- he had but was not to double the rent ately upped his offer ating morning on them. The next Finnish they pay would the entire rental *12 time, Houston, 1 in but still June Sharma amount in advance. As it was double him had called Virtanen and told he left risk, money Finngas no leased both Vinmar, Rew, in- joining was and he was signed tanks to Sharma and Rew. Sharma leasing isoprene terested in tanks for Yang the lease on behalf of Woo.8Virtanen company. his new Sharma asked Virtanen identify to the new lessee of the refused not to lease the tanks before he was able isoprene tanks to Vinmar. delivery arrange to of financial information 5, By only days after he left Vin- June companies. Following about Rew’s mar, given Sharma had not J & J conversation, time, p.m. at 11:25 Houston he persons contact information for did emailed financial informa- Rew Virtanen Vinmar, had business with while at he tion Yang about J & J and Woo. for & arranged caprolactam shipment a J copied Sharma on the email. On June Univex, same he used supplier J from time, at a.m. Houston sent 12:29 Sharma while at This was caprolactam Vinmar.
Virtanen an email titled “Tank Confirma- shipped Shanghai, using the same to China Sharma, tion” in which still a Vinmar em- Manzanilla, that he used at port, while ployee, represented he had left Vinmar Vinmar, many and was to of the same sold and confirmed Rew’s offer to lease both weeks, In customers. a matter of Sharma isoprene at period tanks Hamina for a of 6 completed caprolactam had six Mexican submitted, finally months. Sharma via working also on shipments. Sharma was email, resignation his at from Vinmar 8:14 just caprolactam trades out of Belarus as a.m. on June 2005. he had done for Vinmar. learned Goradia the Hamina tanks had not by been leased Sharma on June 1. a Rus- quickly negotiated Sharma also Vinmar then contacted Virtanen to inform 2,000 isoprene shipment, sian metric tons him keep Vinmar wanted to the tanks. In July delivery, for J J. This was & call, a June 2 conference Goradia learned Europa Polimari something both Rew and Virtanen had made repeated attempts dur- I, Italy, E largest company & the oil ing May to contact renewing Sharma about arrange past. had been unable to the tank lease and Sharma had not re- addition, Sharma, using ship the same sponded. Goradia also learned there had Vinmar, nego- at broker he had used while not been a one granted week extension to shipping a month contract tiated six with by repre- Vinmar Virtanen as had Sharma company provide transport isoprene to sented. out of Hamina. This contract was com- 1, 2005, July day after mence on Vin- competing
Faced with offers on the two formally expired. tank The tanks, mar’s lease Virtanen consulted with mistakenly sent the email con- ship broker the owner of the Hamina tank farm and old firming this deal Sharma’s Vinmar the decision was made to stick with Vin- address, mar, finally revealing the extent than call email known risk. Rather Vin- mar, identity activities and the instead called at of Sharma’s Virtanen Sharma Hamina Finngas home with the news that had de- the new lessee of the tanks. Finngas Originally payment by Yang the lease was to be in the name of so was made Woo. However, arrange J & J. Rew was unable to changed Yang then Woo. lessee bank, quick payment Hong Kong from J & J’s space, Dhingra he looked for that office F. Plot to Leave mitted Bansal Rew, he was along with while Sharma and Join Sharma Rew. Vinmar day he employed still at when Dhingra remained at Both Bansal , in sick. had called resigned. Although after Sharma employee, Dhingra he still a was Hearing. Temporary Injunction The G. he knew did not tell Vinmar Sharma Leibrock, com- Larry a neutral forensic control of the person trying to take parties puter analyst jointly hired Hamina tanks. June Bansal On order, to court was the first wit- pursuant Solutions, Inc. Dhingra set-up Chemtrade preliminary his ness. Leibrock testified *13 (“Chemtrade”) and provide logistics to Sharma, Bansal, Dhingra’s and analysis of in support documentation services 321,000 approximately located computers trades. These ser- Rew’s and Sharma’s using key the word search “Vinmar.” hits job per- Bansal vices were identical to Leibrock, translates into According to 7, after learn- formed at On June Vinmar. documents on those thousands of Vinmar copy of the ing Dhingra requested had from These documents dated computers. May tank on 15 or Gora- Hamina lease included an Excel early as 1988 and as Dhingra Even after Dhingra. dia fired credit card num- spreadsheet containing fired, at and was Bansal remained Vinmar Fi- employees. belonging bers Vinmar loyal employee represented even he was a preliminary nally, Leibrock testified by management. directly questioned when poten- investigation revealed indications Rew talked Dhingra June and On spoliation. tial handling logistics and about Chemtrade injunction hear- During temporary caprolactam documentation for Sharma’s Sharma, denying any he had ing while discussions, Dhin- Following trades. those secrets, that some trade admitted non-competition gra secrecy drafted a and information, margins as the such signed on behalf of agreement, which caprolac- and profitability wanted to Dhingra J & J. and Bansal tam, Bansal also testi- are trade secrets.9 from disclosure. protect their trade secrets customers, suppliers, fied Vinmaf’s agreed and J & J that custom- Chemtrade In addi- technical data are trade secrets. ers, were all suppliers, and technical data tion, admitted he continued work- Bansal agreement, Following trade secrets. trade documenta- ing caprolactam on the logistics restraining and docu- order temporary Chemtrade handled tion after testified that unless caprolactam Dhingra was entered. mentation Sharma’s so, not enjoined doing he did he was from on these trades trades. Bansal worked passing from himself constrained consider by In employed still Vinmar. he was while other than information any services, paid J & J exchange for these ev- According Dhingra, accounts. bank $50,000. was an unusual- This Chemtrade information. erything public else was types of ser- ly high these commission really it was and Bansal admitted vices testimony Finally, there was remarkable support J & J to Chemtrade’s payment ly- admitted and Bansal which Sharma money was used to lying Part of that start-up. admitted ing under oath. Sharma for Houston of- payment initial his involvement with make the under oath about Chemtrade, negotiations by J & J which would be Hamina tank lease space for fice caprolac- the Mexican Yang Woo and Rew. Bansal ad- Sharma and shared with skills, trading his experience, any his possessing Vin- was denied 9. When Sharma suppliers. secrets, relationships with customers had testified all he trade Sharma mar Davis, Bansal, turn at 861. Our response trades. to direct review. 571 S.W.2d court, questioning by the trial admitted he strictly review is limited whether during deposition had lied his as he was clearly trial its discretion court abused during deposi- nervous and defensive injunction. at granting temporary Id. tion and he lies when gets he nervous and judgment our may 862. We not substitute outright defensive. addition to admis- by vacating for that of the trial court oath, lying sions of under the individual injunction an modifying simply because we appellants’ testimony at revealed efforts differently. decided the issue would have concealing the truth appellant’s about each Landry’s Oyster Inn & Bar-Ke Seafood leading up litigation. activities to the The mah, Inc. v. Wiggins, S.W.2d testimony documentary evidence also 1996, no (Tex.App.-Houston [14th Dist.] destroy revealed not an effort to rele- writ). Further, may we not reverse the documents, vant attempt by but also an granting temporary trial court’s order the individual appellants to ensure a con- injunction its decision so arbi unless story premedi- sistent that minimized the trary that it exceeded the bounds of rea aspects gain tated of their efforts to con- Butnaru, at sonable discretion. *14 trol of the Russian isoprene trade. 204. The trial court abuse its does not if the a applicant pleads discretion cause Standard Of Review presents of action and some evidence tend applicant An temporary for a in ing to sustain that cause of action. junction extraordinary equitable seeks re RP&R, Inc., at 32 S.W.3d 402. This court lief. In re Tex. Natural Res. Conserva will not assume the evidence taken at a Comm’n, (Tex. 201, tion 85 S.W.3d 204 preliminary hearing will be the same as 2002). The sole issue before trial the developed the evidence at a full trial on court in a temporary injunction hearing is Davis, the merits. 571 at 862. S.W.2d applicant may whether the preserve the Furthermore, as the trial court functions quo litigation’s subject status of the matter injunc as the fact finder in a temporary pending trial on the merits. Butnaru v. an hearing, tion abuse of discretion does Co., (Tex. 198, Ford Motor 84 S.W.3d 204 not exist where the trial court bases its 2002); 859, Huey, Davis v. 571 S.W.2d 862 on conflicting decision evidence. Id. Nel (Tex.1978). quo The status is the last (Tex. 956, Young, kin v. 397 S.W.2d 958 actual, peaceable, noncontested status n.r.e.). 1965, App.-Texarkana writ ref'd preceded which pending controversy. the court, reviewing As the we must all draw RP&R, Territo, 396, Inc. v. 32 S.W.3d 402 legitimate inferences from the evidence in 2000, (Tex.App.-Houston [14th no Dist.] fight the most favorable to the trial court’s pet.). applicant An plead prove must and granting temporary injunction. order three temporary elements to obtain a in Motorsports, Hennessey T-N-T Inc. v. (1) junction: a cause of against action the (Tex. Inc., 18, 21 Motorsports, 965 S.W.2d (2) defendant; a probable right to the re 1998, (3) App.-Houston pet. [1st Dist.] imminent, sought; probable, lief and dism’d). irreparable injury in the interim. Butnaru, at 84 S.W.3d Discussion The applicant temporary for the Injunction A. Is the Invalid Because injunction required is not to establish that Allegedly Injured Party the Was prevail upon he she will a final trial on Not Before the Trial Court? Walling Metcalfe, the merits. v. 863 (Tex.1993). issue, appel S.W.2d In their first the Rew The merits of applicant’s the suit not presented separate are lants raise several but related arguments It that temporary injunction undisputed that the VOL was isoprene Hamina First, the lessee of the tank. appellants is invalid. the Rew con- However, the while VOL was lessee and injunction temporary tend the is invalid as by Finngas tank was billed the applicant, the only proper according VOL throughput, undisputed there was testimo appellants, to the Rew was not the before (1) ny that: and Vinmar functioned VOL trial time of the temporary court at the it agents as when of each other came Second, injunction hearing. ap- Rew the storing, transport the buying, selling, pellants temporary injunction assert the (2) ing isoprene; VOL had VOL, again assuming invalid as VOL is (3) affiliates; ownership common and were only applicant, specifically failed to proper only not both Vinmar and VOL used plead injunctive through request relief tank, the isoprene Hamina also owned but timely, petition in verified intervention. times during stored it at various Third, argue appellants the tem- (4)Vinmar lease; used VOL to obtain leas VOL, porary injunction is invalid as once use; storage es on tanks that Vinmar could again assuming only proper is the VOL (5) damages suffered as a applicant, present during did not evidence result of the loss of the use of Hamina injunction the temporary hearing. The principal standing A has tank. arguments base these capacity to raise its own claims even (1) undisputed fact was the VOL though an into the contract agent entered tanks; (2) lessee Hamina of the that is of the claim. See First the basis issue assumption that before Fite, Nat’l Bank Falls v. Wichita during temporary injunction trial court (1938) 1109-10 Tex. *15 Hamina tank. hearing isoprene was the (holding may make a con agent that an appellants’ posi- with the Rew disagree We principal tract for undisclosed in his his only tion proper plaintiff that VOL was may name principal own and the sue or be injunction, for the render- temporary thus contract). sued on the Vinmar has both ing injunction the temporary invalid. bring litiga to capacity standing this
tion. Ha- Assuming arguendo that the standing capac- As Vinmar both has only mina was the in tank lease issue injunction ity temporary to ac- bring this injunction temporary pro volved in the tion, joined properly as whether VOL a ceeding, proper plaintiff was still Vinmar injunctive relief party and was entitled The injunctive parties to seek relief. dis irrelevant we need not address each is agree standing an issue whether this is of arguments under appellants’ of the Rew standing A has when capacity. plaintiff or first overrule the Rew issue.10 We personally aggrieved, regardless it is appellants’ first issue. legal authority; with acting
whether it is Injunction Temporary Did B. it party legal when has the capacity has Than Relief Grant More Vinmar act, it regardless of whether authority to Pleadings? Requested in its justiciable has a interest the controver Nootsie, sy. County issue, v. appel- Ltd. Williamson In their second (Tex. List., temporary court’s in- Appraisal argue lants the trial 1996). junction grants dissolved as it should be order, granted injunctive relief the trial court VOL did intervene well before While injunction temporary its Vinmar. trial court entered merits). Here, requested following Vinmar more relief than Vinmar relief trial on the in its pleadings. by pleading underlying the facts its causes requesting injunc- of action and the broad appellants The Rew admit made Vinmar above, complied tive relief stated Vinmar requests injunctive several broad for relief: trial with Rule 682. The court did not (1) enjoining appellants from for working it abuse its discretion when narrowed any business; isoprene trading or alterna- language petition broad found in the tively, they any that not sell Vinmar some, granted but not all of the buy isoprene any customers or from Vin- (2) injunctive mar suppliers; enjoining appellants relief it had asked for its using discussing enjoin- from petition. example, Vinmar’s trade For rather than (3) secrets; enjoining call- appellants from ing working any from busi- ing upon, soliciting, any or sending mar- trading making ness or from keting communication any any kind to to any acquiring sales Vinmar customer or actual, prospective customer distrib- any isoprene any supplier from as appellants; utors that Vinmar disclosed to Vinmar, requested by the trial court en- (4) Sharma, enjoining Dhingra, and joined appellants only purchasing, from working any compa- Bansal from other transporting, storing, marketing, selling or ny with which employed Sharma is or as- trading isoprene pro- monomer that addition, requested sociated. duced in Russia. hold the trial court We that appellants enjoined be from continu- grant- did not abuse its discretion it when ing to benefit from the use Vinmar’s injunctive ed relief than the re- narrower confidential and proprietary information. requested by lief pleadings. We overrule the Rew appellants’ second issue.
The Rew appellants seek to impose very specific pleading require
ment temporary injunction on a applicant Did the Trial Err C. Court When it petition such that must include the Discovery Ap- Permit Refused to exact wording ultimately that appears pellants’ Unclean Hands Defense temporary injunction However, order. and Excluded Evidence on Unclean there is no rule imposes such a strict *16 Hands? pleading requirement temporary on in issue, ap In their third the Rew junction applicants. governs Rule 682 the First, pellants ar points. they raise two pleading requirements injunctive for relief gue the trial court erred it to when refused and it provides: injunction “No writ of permit discovery into alleged granted shall be applicant unless the bribery appellants’ affirmative support present therefor shall petition his to the party defense of unclean hands. A seek judge by verified his affidavit and contain ing equitable remedy injunc an an such as ing plain intelligible statement of the tion, equity must do and come into court grounds for such relief.” TEX. R. P. CIV. Neeley Orange- with clean hands. v. West addition, Supreme the Texas Dist., 746, Cove Consol. Sch. 176 S.W.3d hyper-technical Court has not been in its (Tex.2005). allegation 812 n. 82 The interpretation Walling, of Rule 682. See equi that Vinmar should not be entitled to at (holding 863 S.W.2d 57 that a trial court injunctive un table relief because of its grant injunction can a temporary preserv Second, they clean hands. contend the ing quo pending the status trial on the when, trial though plaintiffs prayer during tempo merits even court erred request equitable rary injunction hearing, does not include a it excluded evi- 422 not trial appellants’ on affirmative defense of the evidence was relevant and the
dence unclean hands. the objection. Appellants court sustained made an offer on this issue proof then of
(1)
Discovery.
Denying
The Order
entirety.
court
which the trial
heard
its
Referencing
allegedly
an order
Only
during
Rew
Sharma testified
3,
signed by
August
the trial court on
proof.
lodged
of
numerous
offer
2005,11
appellants
trial
the Rew
assert the
proffered testimony
in-
objections to
discovery
prevented
court erred when it
cluding hearsay,
personal
lack
knowl-
of
alleged bribery
into an
scheme
leading,
court
edge, and
which the trial
Kachire,
agent. Ap
Vinmar’s Russian
tes-
repeatedly granted. Ultimately, Rew
jurisdiction
have
consider
pellate courts
personal
any
knowledge
tified he had no
of
appeals
interlocutory
of
orders
immediate
bribery
testimony
about the
Sharma’s
only
provides
if a
explicitly
statute
bribery
phrases
was
alleged
prefaced with
DeBord,
Stary
jurisdiction.
appellate
v.
my knowledge”
as “to the best
such
of
352,
(Tex.1998). Sec
967 S.W.2d
352-53
“I
The
determined
believe.”
trial court
tion
of the
and Reme
54.014
Civil Practice
insufficient
proffered testimony
was
governs
appeal
of interlocu
dies Code
inadmissible.
testimony
and ruled
TEX.
REM.
tory orders.
PRAC. &
CIV.
point,
In their second
(Vernon Supp.
§
CODE ANN.
51.014
trial
it ex-
complain the
court erred when
2006).
appellate
strictly
An
must
court
testimony
bribery by
alleged
cluded this
section
of interloc
grant
construe
51.014’s
and Kachire.
utory jurisdiction
Legis
the Texas
because
exception
intended it to
lature
be a narrow
not
evidentiary ruling
An
will
general
judg
rule
final
to the
absent an abuse of discre
be overturned
appealable.
v.
ments are
Ahmed
Shimi
Able,
Dep’t
Transp. v.
35
tion. Tex.
(Tex.
Ventures, L.P.,
S.W.3d
(Tex.2000).
608, 617
The test for
S.W.3d
pet.).
no
App.-Houston [1st Dist.]
discretion
the trial
abuse of
is whether
expressly pro
As section 51.014 does not
any guid
court acted without reference to
of an
interlocutory appeal
vide for the
principles. E.I.
Pont de
ing rules or
du
are
denying discovery,
order
we
without
Robinson,
Nemours Co. v.
jurisdiction
part
of the
consider
(Tex.1995). An
must show
appellant
appellants’
issue.
third
(1)
admit
that:
the trial court erred
not
(2)
The Trial Court’s Exclusion
evidence; (2)
evi
ting the
the excluded
Testimony
Alleged
Concerning Vinmar’s
a material issue
controlling
dence was
Bribery.
not cumula
dispositive of the case and was
During
temporary injunction hear-
(3)
tive;
in the exclusion
error
*17
through the tes-
ing, appellants attempted,
probably
the rendition
the evidence
caused
Sharma,
of
timony of
introduce evidence
to
judgment.
improper
Dep’t
of an
Tex.
by
Kachire.
alleged bribery
Vinmar
Transp.,
423 words, they that the personal knowledge witness has trade secrets. In other were lawfully the matter.” TEX. R. EVID. 602. As attempting compete. not Sharma, Therefore, neither nor appel- allegedly by Rew the Rew no action taken only issue, any lants’ witnesses on this had by Vinmar harmed effort the Rew personal knowledge any illegal bribery appellants lawfully compete in the Rus by Vinmar, the trial court properly isoprene appel exclud- sian market. As the Rew testimony. ed the produce any lants failed to evidence as to they by alleged how were harmed brib if testimony Even was based ery, properly the trial court excluded the personal on the witnesses’ knowledge, the testimony. trial properly court still excluded it. The Because the trial court did not abuse its appellants Rew offered Rew’s and Shar- in excluding discretion the unclean hands testimony support ma’s of their unclean testimony, appellants’ we overrule the Rew hands affirmative defense. The unclean third issue. hands requires litigation defense that the must alleged improper be connected to the D. Did Establish the Likeli- Matthews, conduct. Omohundro v. 161 hood of Success on the Merits of its (1960). Tex. 410 S.W.2d The Trade of Action? Secrets Cause trial court properly testimony excluded the as Rew and Sharma failed to demonstrate fourth their issue the Rew alleged how the bribery appel appellants argue harmed the trial court abused its appellants argue lants. The Rew granted injunc- the testi discretion when it mony they establishes were harmed as the tive relief because Vinmar failed to estab alleged illegal bribery allowed probable right sought lish a to the relief as unfairly dominate the Russian prove possessed Vinmar did not it trade issue, market thus preventing Through them from lawful secrets.12 the Rew ly competing However, in that market. as appellants seeking are a resolution on the below, we find appellants’ appellees’ efforts of action. This merits causes to enter the Russian isoprene purpose interlocutory ap market were is not the of an entirely Davis, based on the peal temporary injunction. misuse of Vinmar’s of a Appellees argue appellants fiduciary duty the Rew waived or assisted breach of the not to appeal they challenge secrets; this issue on as did not (3) disclose Vinmar’s trade de- each cause of action asserted Vinmar its priving storage Vinmar of Hamina tanks petition. Initially, Vinmar is incorrect when through conspiracy fraud or to commit fraud. argues it must address by appel- Misuse of Vinmar's trade secrets each cause of action asserted in Vinmar’s primary supporting lants is the basis each of petition specific as the trial court made find- these causes of action. This includes the ings as to the causes of action on which fraud of Vinmar’s cause of action as terms Vinmar had established a likelihood of suc- Finngas lease with were not known outside cess on the merits. See State Farm Fire & contracting parties and it was S.S., (holding Cas. Co. v. through knowledge Sharma’s of those terms summary judgment in a context that when the that Sharma was able to orchestrate the take- granting summary judgment explic- order over of the Hamina tanks. As the existence of itly grounds upon granting states the relied Vinmar trade secrets is crucial to Vinmar summary judgment underlying and the *18 establishing probable right a the relief independent grounds motion contains other challenged sought and the Rew relief, summary judgment for the same the secrets, proof ap- Vinmar's of trade grounds specified can be affirmed on the order). (1) right pellants not waived the to raise this have in the trial court’s These were: secrets; (2) challenging injunction. misappropriation temporary the of trade breach issue 424 determining person at 861. In to he?” A is
S.W.2d whether Id. liable for disclosure (1) trade grant protection through secret a or use secret trade if he either injunction, means; temporary a trial court does not by the secret improper discovers (2) sought determine the information use, whether or his disclosure and after properly is, fact, protected to be in law and a trade knowledge of consti acquiring the secret rather, secret; the trial court determines reposed tutes of the breach confidence the applicant whether has that established Corp. him. v. Tex. Hyde Huffines, 158 (1958). information 566, 763, the is entitled trade secret 314 769 S.W.2d protection the trial on pending the merits. Upon the an em formation of IAC, Textron, Inc., Ltd. v. Helicopter Bell ployment relationship, certain duties arise 191, (Tex.App.-Fort 160 S.W.3d 197 Worth apart any Miller from written contract. 2005, pet.). a temporary no The fact that Co., Paper Paper v. Roberts 901 Co. injunction order issued trade granting 1995, 593, (Tex.App.-Amarillo S.W.2d 600 protection mean pro- secret does not the writ). an no One of those duties forbids tected information is a trade secret. Id. employee using from informa trade secret upon That issue will be decided trial on the the acquired during tion rela employment the merits. tionship in a manner to the em adverse obligation the ployer. Id. This survives formula, any
A trade secret is
employment.
Although
termination
Id.
pattern,
compilation
device
or
informa
duty
employ
does not bar the former
tion which is used in one’s
business
skill,
using
general
ee from
knowledge,
the
presents an
to obtain
opportunity
an ad
acquired
employ
and experience
during
vantage over
do
competitors who
not know
ment,
utilizing
prevent
it does
him from
Bass,
735,
it. In
or use
re
113 S.W.3d
739
acquired
employ
trade
during
secrets
the
(Tex.2003).
lists,
infor
pricing
Customer
relationship.
ment
Id. at 600-01.
mation,
information,
pref
client
customer
erences,
contacts,
buyer
blueprints, mar
To determine whether
infor
drawings have
strategies,
ket
all been
secret,
mation
a court
constitutes
trade
recognized as
Mo-
trade secrets. T-N-T
applies
following six
the
factors:
torsports, 965
18 at 22.
S.W.2d
“Secret”
(1)
information
which
the extent to
implies the information is not generally
outside the claimant’s busi-
known
However,
or
Id.
readily
known
available.
ness;
fact
knowledge
product
the mere
of a
(2)
extent to which the information
in
process may
acquired through
be
by employees
is known
and others
experimentation,
analysis
spection,
business;
involved
claimant’s
preclude protection
does not
from those
(3)
of the
taken
the extent
measures
knowledge by un
who would secure that
guard
secrecy of
the claimant to
means. K
Tool &
v.
fair
& G Oil
Serv. Co.
information;
Serv.,
594,
Fishing
& G
Tool
Tex.
G
(4)
to the
the value of
information
(1958).
Texas,
314 S.W.2d
claimant
competitors;
and to its
im
employment
courts condemn the
(5)
money
of effort or
ex-
the amount
trade
procure
means to
secrets.
proper
develop-
pended by the claimant
v.
Air
Am. Precision Vibrator Co. Nat’l
information;
ing
(Tex.
Co.,
Vibrator
(6)
writ).
difficulty
ease or
with which
App.-Houston
no
[1st Dist.]
could
ac-
question
properly
“How could he have
information
be
The
is not
duplicated by others.
knowledge?”
quired
but
did
secured
“How
*19
Bass,
In re
party
acquire.
In each of the investiga- discovery through independent Vinmar agreements lants executed with materials, the rec- publicly tion of available trade se- they would receive recognizing appellants that ob- ord does not establish in the course of their cret information in that manner. tained the information Finally, the record shows employment. testimony undisputed appel- There was isoprene in the that Vinmar’s success (other than Rev/s initial unsuccessful lants based, in large was caprolactum markets underlying to the events this prior efforts time, efforts over measure on its sustained actually any do internet litigation) did not developing, com- expertise as well as its caprolactum until isoprene research on chemicals. pricing, selling petitively instigated and was litigation had been knowledge can None of this institutional they after were instructed performed knowledge known gleaned general be from defer to the by to do so trial counsel. We outside Vinmar’s business. concerning the assessments trial court’s trial argue the court The Rew weight credibility of the evidence finding abused its discretion possessed trade secrets. whether Vinmar as, according to possessed trade secrets Nelkin, Davis, 862; 397 571 S.W.2d at is appellants, the information the Rew there Having at 958. determined S.W.2d sources, such as through public available reasonably supporting was some evidence records, government reports, various trade pos- that finding the trial court’s evidence on the and the internet. The secrets, overrule the Rew sessed trade we about public availability of information fourth issue. appellants’ caprolactum busi- disputed. There was evidence ness was Proof That Did Present E. of infor- available sources publicly that the Inadequate Damages be an Would mistakes, capture not all mation contain do Remedy? trades, all capture and do not of Vinmar’s for the listed trade secrets seeking temporary of Vinmar’s party A no also evidence that probable, trades. There was it has a injunction must show imminent, injury document re- in the single, publicly irreparable available injunction In supply temporary entire chain.15 vealed Vinmar’s interim between addition, the merits. But hearing evidence also indicated and the trial on naru, injury An omis- at 204. documents had 84 S.W.3d publicly available costs, cannot be handling injured party if the logistics irreparable such as sions if costs, damages costs, adequately compensated ex- cleaning freight in-land by any cannot be measured damages if expenses. Even some and other pense, Co., path writ); accurately recite the correct unable to Vibrator 764 Am. Precision no 278; Halsey Stuart ship isoprene David v. Bache of Russia. S.W.2d at out Vinmar used Inc., Shields, (Tex.App.- 757 appellants' trial coun- According 1982, writ); Collins v. no [1st Dist.] Houston sel, shipped by rail from isoprene was Inc., Supplies, Ryon's & Ranch Saddle Rotterdam, by tanker to then sent Russia to (Tex.Civ.App.-Fort Worth S.W.2d Hamina, reality, port Finland. 1979, writ). no Hamina, stored isoprene was sent rail to loaded onto Finngas tank later in the appellants' learned 15. We note that the frequently trans- isoprene was tanker. The counsel, publicly using some of these trial port of a different tanker ferred to questioning reports, while available trade Vinmar, Goradia, Rotterdam. president Hemant pecuniary is, certain standard. Id. That that appellants’ misuse of Vinmar’s trade *21 applicant the has to secrets threatened -with the total establish there is no very profitable of adequate isoprene loss its busi- remedy at law for damages. ness. There was also evidence in the rec- Network, Cardinal Health Staffing Inc. v. appellants’ ord that misuse of Vinmar’s Bowen, 230, 106 (Tex.App. S.W.3d 235 similarly trade secrets threatened Vin- 2003, Houston pet.). [1st Dist.] no An in caprolactum mar’s business Mexico and adequate remedy at law is one that is as Belarus. complete, practical, and efficient to the
prompt
justice
administration of
equi
as is
Injunctive
may
relief
be em
table relief.
Id. In their fifth issue the
ployed when one breaches his confidential
appellants
Rew
argue the trial court
relationship
order to misuse a trade
abused its discretion
it
when
entered its
Co.,
Kinley
secret. Luccous v. J.C.
376
temporary injunction order as Vinmar
(Tex.1964).
Injunctive
S.W.2d
re
prove
failed to
damages
that
would be an
proper
prevent
lief is also
a party, which
inadequate remedy.
disagree.
We
secrets,
appropriated
has
another’s trade
gaining
from
an unfair
advantage.
market
When viewed in
light
the
most
T-N-T Motorsports, 965 S.W.2d
at 24.
order,
favorable to the trial court’s
Irreparable
may
harm
also be established
evidence supports the trial
finding
court’s
by evidence that disclosure of trade secret
that
irreparable
Vinmar has an
injury
information could enable
competitors
pending trial on the merits. There was misuse the marketing plans
strategies
evidence the Hamina
key
tanks were the
of
applicant
and avoid the less success
to Vinmar’s Russian isoprene trade. Fur
strategies
ful
as well as the risk and ex
ther, the evidence
appellants
shows
were
pense
developing
of
strategies.
Ma
attempting
away
to hire
Manjul
Abbas and
SandStream, Inc.,
brey
v.
Jain,
key
Kachire,
contacts at
319 (Tex.App.-Fort Worth
pet.).
no
agent.
Vinmar’s Russian
There was also The
leading
misuse of trade secrets
to the
evidence Sharma had
aspects
disclosed all
of an existing
loss
business is another ex
of Vinmar’s
isoprene
Russian
business and
ample
irreparable
entitling
ap
harm
an
caprolactum
Mexican
contacts to Rew and plicant
injunctive
Paper
relief. Miller
companies,
his
making
simple
it a
task for Co.,
lants
of the
availability
on the
and use
injunction
“No De- dent
temporary
order:
storage
there was
Hamina
tanks. Thus
way
engage
any
fendant shall
on the
supporting a
ban
general
evidence
stor-
purchasing, transporting,
business
Russian
appellants trading
marketing,
trading Isoprene
ing,
selling
dependent
posses-
on their
as it would be
produced
in Russia or
Monomer
tanks, obtained
and use of the Hamina
sion
either
from Mexico
Caprolactam
supplied
wrongful
through
disclosure Vinmar’s
*22
According
or sold in
to
or Belarus
China.”
if information
Finally,
trade secrets.
even
appellants,
protecting
than
the Rew
rather
parts
supply
about some
of Vinmar’s
secrets,
in-
temporary
trade
Vinmar’s
the
available,
publicly
question
the
chains was
overbroad,
prevents
it
the
junction is so
could
have secured
appellants
is not how
appellants
lawfully competing
Rew
from
they obtain it?
knowledge,
the
but how did
isoprene
the ca-
the Russian
business and
Co.,
at
Precision Vibrator
764 S.W.2d
Am.
appellants
trade.
also
prolactam
The Rew
evidence,
in the
The
when viewed
injunc-
of
argue
scope
temporary
the
the
appel-
Rew
proper light, establishes the
evidence. We
supported by
tion is not
the
information
obtain
on the
lants did not
the
disagree.
business
isoprene
caprolactam
1)
Support
the
the
Does
Evidence
effort,
through independent research
Injunction?
Temporary
through a
of the confidential
but
breach
and its for-
relationship between Vinmar
argue
Rew
the evi
appellants
The
supports
employees. The evidence
mer
the
scope
not
the
support
dence does
injunction.
temporary
of the
scope
the
injunction
ap
The Rew
temporary
order.
the contest
pellants, pointing
2)
out some of
Injunction
Temporary
Re-
Does the
court, assert
before the trial
ed evidence
Competition?
strict Lawful
that Vin-
the evidence did not establish
appel
argument,
In this
the Rew
supply
isoprene
caprolactam
mar’s
the
issue
overlook the fact that
sole
lants
chains,
and cus
particularly the sources
in
temporary
the trial court in a
before
chemicals,
trade se
of the
were
tomers
hearing
applicant
is
the
junction
whether
making
deserving
protection,
thus
crets
litiga
quo
of the
may preserve
status
again, the
injunction
overbroad. Once
subject
trial on the
pending
tion’s
matter
the evi
viewing
are not
appellants
Rew
Butnaru,
204;
at
84 S.W.3d
merits.
re
light,
which
appropriate
dence
Davis,
quo
The status
While lants’ issues we the trial injunction granting temporary injunc- court’s of the operate should as a corrective protecting tion order Vinmar’s trade se- measure, punitive rather than a when crets. choice must be made between failure to
provide adequate protection
recog
of a
Appendix
legal right
nized
punitive operation
and the
writ,
Cause No.2005-42636
of the
the latter course must be
Huffines,
taken.16
tion Vinmar, provided each
benefit
defendant with extensive amounts and trade se-
confidential information
crets, training as well chemical as
trading. confidential information that Vin-
5. The that possesses
mar and Defendants Rew, Bansal,
Sharma, Dhingra and ac-
quired regarding: includes information information; contact
a.customer expended 6. Vinmar has 14. substantial re- Vinmar’s information maintains secrecy time, substantial element and sources, money compiling, and satisfies each factor for trade secret obtaining, maintaining and its trade protection. The information is there- secret, confidential, proprietary and in- secret, confidential, fore trade formation. proprietary information. Sharma, Rew, Bansal, 7. Defendants information Using the confidential Dhingra acquired this information Vinmar, they procured from De- solely through their confidential rela- Sharma, Bansal, Dhingra, fendants tionship through with Vinmar and not began competing and Rew with Vin- any public sources or domains. mar employed while each was still Dhingra 8. Defendants Bansal and had with Vinmar. access to all of Vinmar’s confidential 16. These businesses were established to perform
information order to their chemicals, purchasing trade the same responsibilities in providing logistics suppliers, selling from the same and documentation for each chemical customers, to the same as Defendants traded Vinamar. Bansal, Sharma, Dhingra had previously done at Vinmar. 9. Using Vinamar’s confidential informa- tion, Sharma, Rew, Bansal, Defendants Sharma, Bansal, 17. Defendants Dhingra, and Dhingra executed trades and con- and Rew never disclosed to Vinmar ducted business fi*omlocations located competing that each was with Vinmar worldwide, Russia, Belarus, using including confidential contacts procured and information that each China, Asia, Europe, Mexico, the Unit- from competitive to assist States, America, India, ed South gain advantage businesses Japan. trading industry. chemical *25 10. This confidential information is not Sharma, Bansal, Dhingra, 18. Defendants generally competitors known to and taken, used, and Rew have and dis- gives Vinmar a competitive advantage secret, closed trade confi- Vinmar’s trading industry. the chemical dential, proprietary and information 11. safeguards Vinamar this information competitors to of Vinmar. by utilizing controlled access cards Sharma, Bansal, 19. Defendants and and computer passwords, as well as taken, used, Dhingra have and dis- each having employee execute confi- secret, closed Vinmar’s trade confi- dentiality and non-compete agree- dential, proprietary and information ments acknowledging the confidential Rew, for the of benefit Defendants J and secretive nature of the informa- Chemtrading, & Yang J and Woo tion. Chemical America. 12. employees granted Vinmar were ac- In May 20. while Defendant Shar-
cess to concerning confidential data Vinmar, employed ma was still at he each chemical on a “need-to-know” conspired and Defendant Rew to be- gin competitive company called basis. WorldChem. The two never dis- publicly 13. Vinmar did not disclose or they closed to Vinmar that were es- otherwise divulge its confidential in- tablishing competitive this business. formation. negotiat- Finngas 27. with was actively Sharma and Rew so- The lease Defendants of itself by for the benefit ed Vinmar employees, including other Vinmar licited and Overseas. Sadakat, join Manjul Jain and Abbas to competitive company. their Vinmar, at Defen- employed 28. While Dhingra and intention- dants Sharma May 21. In Defendants and ally allowed time for renewal of Hong Kong met in with Ab- Sharma Finngas expire. leases to This to the structure bas Sadakat discuss constitutes a breach De- conduct layout of and their and WorldChem fiduciary duties owed to fendants’ into At entry Isoprene market. Vinmar. time, Sharma employed was to Finngas storage 29. Without leases Vinmar. Rew, tanks, Defendants J & J Chem- Finngas 22. would have renewed and Chemical trading, Yang Woo under Finngas leases with Vinmar have been able America would never buying engage business original prices and that it terms selling Isoprene in Russia. and previously, had for Defendants but Sharma, Bansal, Dhingra’s acts and Rew, J & Defendants J 30. Neither deception and fraud. Chemtrading, Yang nor Woo Chemi- in, any had experience cal America May and had a June about, selling, knowledge buying, expectation reasonable it would Isoprene, Caprolactum, or trading Isoprene and control continue lease 1, 2005. plasticizers prior to June Finngas storage tanks from located Rew, 31. All information that Defendants Hamina, Finland. Yang and Woo Chemtrading, J J& Vinmar, still with employed 24. While regarding America have Chemical helped Defendant Defen- Sharma ac- Caprolactum and Isoprene Rew, solely Shar- Chemtrading, quired from Defendants dants & J J Bansal, This infor- ma, Dhingra. Yang America take the Woo Chemical came from mation Finngas away tank storage leases secret, proprie- trade confidential from Vinmar and allowed Defendants tary. Rew, Chemtrading, Yang J & J trade use of se- 32. Defendants’ Chemical America enter Woo confidential, in- cret, proprietary industry competitive Isoprene *26 wrongful com- formation constitutes trading. petition Vinmar. against corporation, and 25. Vinmar its affiliated Bansal, Sharma, and 33. Defendants (‘Vinmar Overseas, Ltd. conspired with Defendants Dhingra acted, Overseas”), act, and have each Rew, and Chemtrading, Yang J J & agent respect of the other with as (1) America to convert Chemical Woo storage purchase, transportation, secret, confidential, Vinmar’s trade in isoprene produced Rus- and sale (2) information, and proprietary and through storage tanks located sia secret, confiden- Vinmar’s trade use in Finland. tial, information to proprietary and compete against Vinmar wrongfully Both Vinmar and Vinmar Overseas 26. selling, and buying, in the business generating revenues from have been and Isoprene, Caprolactum, trading and the of the the sale of use plasticizers. storage tank in Finland. Sharma, Bansal, 34. Defendants Rew, Chemtrading, 41. Defendants J & J Dhingra fiduciary breached duties Yang America Woo Chemical Rew, owed to Vinmar. Defendants J negotiating have been with Vinmar’s Chemtrading, Yang & J Woo competitors Finngas to sublease Chemical America assisted this Temporary tanks violation of the breach. Restraining Order. Rew, Sharma, 35. Defendants and Bansal lied under oath multiple on occasions using 42. Defendants have been Vinmar’s proceeding, depositions this both in confidential information to establish and at trial. competitive compete businesses and against company. an in- Absent signed agreement 36. Rew an with Vin- junction, Defendants will continue to during employ- mar his course of use Vinmar’s confidential information by ment prohibited Vinmar that him personal gain to the detriment of from soliciting employees of Vinmar the company. years for two after the termination his employment. Damages 43. from Defendant’s misuse of During 37. years two after termi- confidential information are nation of his employment, Rew re- immeasurable, and there is no indica- peatedly continually violated the satisfy tion that Defendants can an provisions of agreement by soli- in damages award or will remain citing Sharma to come to work for country within the to do so. him. 44. competing Defendants’ conduct 38. There is some evidence that Defen- Vinmar, against including actively attempted dants have deleted or trading through chemicals contacts destroy emails and other documents Vinmar, and sources learned at in order to cover their actions. including establishing competitive Sharma, Bansal, Saved Defendants employed businesses while each was Rew, Dhingra, and Chemtrade Solu- Vinamar, at has left Vinmar with no personal tions computers are over injunctive choice but to seek relief 300,000 Vinmar documents that De- prevent ongoing Defendants’ misuse fendants took from upon leav- misappropriation of Vinmar’s ing company. These documents trade secrets. wrongfully were obtained and re- Sharma, tained Defendants Ban- probable right 45. Vinmar has a to recov- sal, Rew, Dhingra, and Chemtrade pending er trial on its claim for mis- Solutions in Tempo- violation of the appropriation of trade secrets. Vin- *27 rary Restraining agree- Order and mar owns trade secrets. Defendants ments. in have used Vinmar’s trade secrets breach of both their contractual and 40. All timely pro- Defendants failed to Vinmar, relationship confidential with previously duced documents as or- acquired and Defendants have the in issuing dered the Court the through improper trade secrets Temporary Restraining Order and as attempt means. Rather than inde- agreed. is, therefore, It that pendent investigation and research to dis- ORDERED Defen- Sharma, issue, Dhingra, dants Ashvin cover the confidential information at Ravin Rew, Bansal; Amit James Chemtrade their rela- Defendants abused confidential Solutions, Inc., Yang Woo Chemical with to obtain the knowl- tionships Vinmar America, Chemtrading, J Inc. Inc. J & edge. hereby enjoined, are until final trial probable right a recov- 46. has Vinmar hereof, as follows: pending trial on its claim for De- er or 1. No shall use Defendant sublease breach or assisted breach of fendants’ tanks in Pinngas storage located each fiduciary duties Defendant Hamina, for the storage Finland of ac- to Vinmar. Defendants owed Isoprene purchased Monomer from a that quired abused confidence Russia; in reposed Defendants Vinmar Shar- engage any 2. No shall in Defendant Bansal, ma, Dhingra. Defen- way purchasing, of in the business a fiduciary duty dants owed storing, marketing, transporting, not to disclose Vinmar’s trade secrets Isoprene trading Mono- selling, person- trade secrets for or use these mer in produced that is Russia or betrayed gain, al and Defendants this Caprolactam supplied either from trust. China; in Belarus or sold Mexico or probable right has to recov- return all Vinamar 3. Defendants shall trial its De- pending er claim for back records and documents to Vin- conspiracy fraud or to de- fendants’ may mar Defendant pos- that each fraud Defendant Sharma Vinmar. sess and shall not use informa- management to Vinmar represented in tion contained such records or the tank leases would be re- any purpose; documents man- newed and never disclosed to use or 4. No Defendant shall disclose working that he was for a agement any purpose any any person company acquire competitive part trade secret or con- of Vinmar’s [sicjassisted All defendant tanks. information, fidential which shall conduct, and such conduct consti- this mean include all of the follow- actual and constructive fraud. tutes ing: probable injury pending (1) 48. Vinmar has regarding All information Vinmar’s possess trial. Defendants Vinmar’s of purchase acquisition Isoprene information and are confidential Russia, including price, using position to continue it to com- terms, and conditions sale and industry. pete with Vinmar identity suppli- of all Vinmar’s use leaves This threatened ers Isoprene; irrepara- imminent harm facing (2) transpor- All about the information adequate remedy injury, with no ble Isoprene in- storage tation and at law. regarding information cluding all therefore, storage facilities locat- is, Finngas It ORDERED that Hamina, Finland, ed in Injunction hereby entered Temporary conditions, .terms, past history full force and effect and shall remain or lease agree- contract against enjoined therein until parties all facilities; ment for such case. *28 trial of this
435 (3) opera- All information about Vinmar’s has incurred its business tions; Isoprene,
sales of including terms, conditions, (11)Financial prices, type statements.
of sales transactions which Vinmar It is further ORDERED that this order into; has entered Plaintiff upon posting shall be effective (4) $2,500,000.00. of All information about cus- bond amount Vinmar’s
tomers, including purchase their It is further ORDERED that this case histories, and transactional day April, their is set for trial on the of 3rd general requirements, needs and 2006. specific
and the October, terms and condi- day SIGNED this 3rd tions of the various sales and other Halbach, Judge Joseph J. “Tad” Jr. /s/ transactions which has en- Judge Presiding customers, tered into with its GUZMAN, Justice, concurring EVA M. including further the name and all dissenting. information about person or majority’s I concur in the disposition persons who make on decisions be- presented five of the six issues appeal; half of Vinmar’s to pur- customers however, I respectfully disagree with the Caprolactam; chase majority’s 2 holding affirming Paragraph (5) All information about cus- states, injunction, of the which “No Defen tomers, including purchase their engage any way dant shall in the busi histories, and transactional their purchasing, transporting, ness of storing, general requirements, needs and marketing, selling, trading Isoprene specific and the terms and condi- produced Monomer that is in Russia or tions of the various sales and other Caprolactam supplied either from Mexico transactions which Vinmar has en- or Belarus or sold in China.” Because I customers, tered into with its and agree with this including further the name and all paragraph temporary injunction of the information about person broad, overly modify I would portion persons who make decisions on be- of the trial court’s par order as to these half of pur- Vinmar’s customers to ties. T-N-T Motorsports, See Inc. v. Monomer; Isoprene chase Inc., Hennessey Motorsports, (6) margins, Profit profitability, and 18, (Tex.App.-Houston 25 [1st Dist.] expenses; dism’d) pet. (modifying overly an broad (7) formulas; Pricing pricing injunction). (8) Logistical details and information correctly The majority notes that methods, costs, regarding and ex- purpose temporary injunction of a is to penses included in transporta- preserve quo litigation’s the status of the tion, storage, handling, delivery subject pending matter a trial on the mer Isoprene; Co., its. See Butnaru v. Ford Motor 84 (9) details, Logistical price, terms and (Tex.2002). But, S.W.3d as we relating Caprolactam
conditions stated, previously injunction “may an have in Mexico or ship- Belarus and the broadly prohibit not be framed so as to China; Caprolactam ment of enjoyment rights.” lawful v. Kulkarni (10) Ass’n, Inc., All information about the cost and Valley Braeburn W. Civic
expenses that incurs or (Tex.App.-Houston S.W.2d [14th *29 writ) 1994, Inv., (citing no the the during pendency Dist.] Hellenic market of the Co., 861, Kroger litigation, Inc. v. transport S.W.2d and alternate and stor- (Tex.App.-Houston may age Dist.] no facilities become available. Un- [1st writ)). temporary injunction A imper- language injunction, der the of the the missibly prohibits only appellants only prohibited overbroad if it not Rew are not proprietary dealing suppliers the use of and in- from with customers confidential and formation, appellants through but conduct as well. known Rew the lawful See to the Techs., Keraplast improper Research Sw. Inst. v. use and disclosure of Vinmar’s Ltd., information, (Tex.App.- currently 482-83 confidential are but enjoined Antonio pet.). any San no from iso- commerce with Russia, prene supplier any caprolactam in majority that emphasizes The the Rew Belarus, or supplier any in Mexico and or appellants isoprene caprolac- traded no China, if caprolactam purchaser in even underlying tam the before events this liti- such entities are new entries in the market however, gation; this observation does not are strangers or otherwise to Vinmar. fully quo reflect the ante. status Before injunction ap- The likewise the Rew bars present controversy the arose between the pellants purchasing suppli- from from new the Rew had parties, appellants a limited country, ers for resale within the same right in legal engage international purchased even where chemicals trading. Although ap- chemical the Rew solely The are export. appellants for Rew not pellants right, did exercise that the enjoined storing even from transporting or existed, right nevertheless albeit within Russia, in isoprene originating caprolac- purposes certain limits. For of this Belarus, supplied by tam Mexico and discussion, by these limits were defined caprolactam China, they sold even if use non-competition confidentiality and methods, facilities, and never supply chains agreements majority’s described by used Vinmar. against opinion prohibition sum, improper According- appellants enjoined use trade secrets. are ly, the Rew could in from with new establish- appellants engage trading suppliers, chains, if trading they ing original supply using international chemical acted alterna- But, facilities, transport tempo- storage these tive within boundaries. rary injunction arbitrarily replaces untapped for the sale developing these markets isoprene caprolactam law in those nations contractual common limits with boundaries, operates regardless where geographical imposing barri- — appellees’ country origin infringe on a whether such actions on ers based chemical’s Moreover, does not rights. injunction or sale. appellants’ ability to com- restrict the Rew majority implies The that distinction months, pete only specified six as presented, facts is immaterial confidentiality non-competition and Togliatti that recites while Vinmar, has been agreements with but there “was also evi- only isoprene supplier, year, effect and will continue for over Togliatti was the Russian dence until trial. selling isoprene export.” manufacturer But, injunction restric- imposes the inter- Because the appellants, unlike beyond those tions on the Rew caprolactam national markets arising relationship their with Vin- quo the status from are not bound to maintain arose; enjoins engaging them even controversy mar and from as it existed before this not involve competition in lawful that does suppliers may and customers enter new *30 information, the use of confidential I would trial
hold court abused its discre- injunction in granting
tion its cur- overly
rent broad form. JACKSON, Appellant,
Robert
v.
TEXAS SOUTHERN UNIVERSITY-
THURGOOD MARSHALL SCHOOL LAW, Jackson,
OF J. Faith Individu-
ally Employee, and as and McKen
Carrington, Individually and Em- as
ployee, Appellees.
No. 14-06-00295-CV. Texas,
Court of Appeals of (14th Dist.).
Houston
June Gross, Kemah, Alexander ap-
Keith pellant. Station, Eccles, Capitol
James B. appellees.
Panel consists of Chief Justice HEDGES and JUSTICES FOWLER EDELMAN.