*1 under the law to the was correct statement up add does expenses past Plastics, According- at 49. $825,000 jury. Formosa awarded stand.7 cannot ly, that award legally the evidence is conclude that
We finding of jury’s support
insufficient
$825,000 past expenses. damages to show evidence
But there is sufficient suffered some out-of- appellees appel- as a result of the damages
pocket the appellants fraud. Because lants’ Pinnacle William M. BISHOP and of dam- appellees contested issue Ltd., International, Potash judgment trial we court’s ages, reverse Appellants claim appellees’ remand the fraud v. liability damages. a new trial on both Plastics, Formosa S.W.2d MILLER, Barger III and Reunion E. court can remand (holding appellate Company, Appellees Potash supports no new trial when evidence of damages awarded but there is Company, Appellant Reunion Potash Tex.R.App. P. see also damages); some v. 44.1(b) (“The court not order trial solely on dam- unliquidated trial separate William and Pinnacle M. contested.”). liability if is ages Ltd., International, Potash
Appellees. conclusion, trial we reverse the 14-12-00264-CV, Nos. 14-12-00318-CV. respect appel- with to the judgment court’s conversion lees’ breach-of-contract Texas, Appeals Court of judgment claims render (14th Dist.). Houston nothing on those claims. appellees take Sept. 2013. judgment the trial court’s We reverse claim respect appellees’ fraud sought they benefit-of-the- extent bargain Because the evidence damages. out-of-pocket support some
sufficient amount
damages support not to but appellees’ past for the
awarded judg- the trial court’s
expenses, we reverse to their claim and respect
ment with fraud action new trial.
remand cause of for a Plastics, 960 at 51.
See Formosa charge.
under the And because object charge at
appellants did
trial, opinion we on whether express outright, airplane now that Grover owns We need not address whether therefore determining that was amount the cash contribution into account in should taken winding up returned 87 Minutes the “costs incurred” L.L.C., the fair market value of *5 S.,Pickelner, Bellaire,
Robert Paul Den- Austin, Trahan, ton Appellees in No. 14-12-00264-CV. Mitchell, Austin,
Mark Toler Robert S. Pickelner, Bellaire, for Appellees No. 14-12-00318-CV.
Panel consists of Justices CHRISTOPHER, JAMISON, and McCALLY.
OPINION JAMISON, MARTHA HILL Justice.' appeals These cross the alleged concern misappropriation of relating trade secrets process mining to a particu- lar area of appeal, Utah. Potash Company contends that evi- dence is legally insufficient to sustain the jury’s finding that it misappropriated trade *6 belonging secrets to William E. International, Pinnacle Ltd. Potash their appeal, Bishop cross and Pinnacle trial in contend that the court erred sub- mitting a proportionate responsibility question, which asked the appor- responsibility for the misappropriation Barger between and E. Miller III, because was no to sup- there port question’s submission and because properly predicated was not a finding on Al- independent by conduct Miller. though Miller was found liable court, damages by trial assessed he join appeal. does not We affirm. Background I. twenty
About miles Moab in outside southeastern lies a potassium-rich Utah Austin, Mitchell, Mark Appel- Toler region rights Ten Mile known as Area. 14-12-00264-CV, in lants No. to mine potash, potassium-containing Weimer, Christopher ore, Paul Denton Tra- in in originally this area leased han, Austin, Brett Young, by. Company Jackson Hous- Buttes Resources ton, for in No. Bureau Land Man- Appellant 14-12-00318-CV. United States differential between the de- (BLM).1 potassium Although temperature
agement recognized as This differs from posit area are surface. deposits in the long has mining process, them where the mineral the basic quite significant, part in be- problematic with solution itself mining been viewed as dissolved (for freshwater) reasons dis- processed the mild climate cause of later (usually below, production potassium most large leaving cussed de- separation, typically climates) and because in colder occurs ponds. of salt in retention When posits at which the de- depth underground PB-KBB, his employment left posits are found. rights negotiated he for and obtained mining developing, process to the Ten Mile
Bishop first learned including rights apparently engineering when the Area around report. Gruschow time, for at that Parsons firm he worked Bau und Betrieb Brinckerhoff-Kavernen mining in the Ten Mile Bishop’s plan for (PB-KBB), of Buttes undertook behalf anomalously capitalized on the fact of Area mining techniques of solution evaluation high temperatures high where concentra- could be utilized potentially area. He are found in the tions PB-KBB, Bishop at position In his area. necessary achieving temp- envisioned provided by learned from documents differential for selective solution erature Ten Mile Buttes various attributes of closed-loop mostly sys- mining using a including that deposits, potassium Area heat pipe-in-pipe tem that included anomalously high tempera- they existed designed. Basical- exchanger that he tures. entail ly, mining process inject- would geologist engi- and mechanical Bishop, through pipe an outer into colder brine neer, experience considerable possessed high-temp potash deposits where mining of minerals contained the solution into the potash would be dissolved brine At one underground salt formations. through pipe a second and then removed career, point developed he also had pipe. first colder that surrounds the *7 concentric-pipe patented “pipe-in-pipe” deposit through the sent into the brine exchanger. working for PB- heat While cool the warmer pipe outer would brine examining the materials from KBB and pipe, in the second carrying potash Buttes, Bishop began pro- formulate a “cold-cracking” crystalliza- causing or the mining of the cess for “selective” solution potassium returning out of the tion of Among Ten Area. the documentation Mile supposed solution. One economic brine report reviewed was a 1995 from Bishop closed-loop system of such a is that benefit PB-KBB, an for Nor- outside consultant cooling heating artificial methods Gruschow, bert which concluded selec- supposed be and the required, would not mining work the Ten tive solution could include that neither environmental benefits in- mining Area. Mile Selective solution nor large- a of fresh water continuous feed mining (typically injecting volves a solution re- ponds salt-retention would be scale brine) extracting a underground and min- quired. separated crystallized in a form that is eral PB-KBB, Bishop began to leaving After mining from the solution. solution investors, eye with an potential look for underground. Selec- can then returned potassium mining mining obtaining a certain toward requires tive solution investigating the Mile for parent company, Buttes role in Ten Area Buttes Resources’ mining potential. Company, apparently played also Oil & Gas investors, to a rights potential in Ten Mile Area —then owned number of includ- Reunion, a' successor-in-interest to ing Gordon Gray, owner of Allied Crude plan for min- developing Buttes —and Purchasing. eventually Allied purchased Miller, Bishop met the area. a Reunion 23, from Carnallite March project, potential investor sum, million. ofOut $1.25 Carnal- In late partnership. two formed a . lite satisfied several accounts payable and signed confidentiality agreement Miller shareholders, made a distribution in- specific Bishop before shared information cluding to company, Miller’s E.B. Miller & regarding mining process selective sale, Co. After resigned Miller pres- as began he had Miller then developed. ident of Reunion but remained company as investors, soliciting other and he and Bish- secretary and continued to act as agent negotiations entered with Reunion In- op of Reunion to develop an Operating Plan purchase dustries Reunion Po- for the Ten Mile Area leases. Reunion in the tash leases Ten Mile BLM, submitted the plan to the but the 2002, Bishop signed Area. In and Miller a BLM rejected it incomplete. Reunion’s joint agreement pledging partic- letter president, Gray, testified that Reunion still project. in the ipation plans develop the leases. However, when new investors did not meanwhile, Bishop, was discussing in- materialize, Bishop Miller both appar- possibilities vestment with Randy Taylor.2 ently sought on their own. investors During review, their diligence due one of September sent Bishop Miller let- Taylor’s employees learned that Carnallite possible Miller’s ter terms for purchased Reunion. thereaf- In late project. exit 2004 or lawsuit, ter present alleging, filed early Miller informed that he among things, other fraud and breach of (Miller) no longer responsibility took against contract Miller and misappropria- joint project. for the In June Miller against of trade secrets Miller and a new company, formed Carnallite Enter- Reunion. sued on also behalf of a LLC, prises, with other investors. Miller purported partnership between himself plan develop- also created a business and Miller. Reunion counterclaimed for ment of a mining project Ten Mile secrets, misappropriation of among Area. He in an plan attempt used this things. Bishop other subsequently as- all or part project sell to BHP- signed his and the purported partnership’s Billiton. Miller used the business Taylor’s interests in the compa- lawsuit to obtain a loan from Texas plan Commu- *8 ny, International, Pinnacle Potash which Bank, nity purchase to he used Re- then the party became a to lawsuit. (and rights in potash union lease the Area) Mile of Ten on behalf Carnallite. trial, At the conclusion of the court sub- then president Miller became of Reunion. 49-page, 36-question mitted a charge to all ultimately rejected BHP overtures from jury. the response questions In to Miller. 4, through the that jury Bishop found and Miller Miller equal partnership, further a series of Pow- formed an Miller prepared presentations duty loyalty erPoint failed to his of possi- comply the with to 2005, mining Bishop early bilities for in Ten before and Bishop Mile Area. presented presentations He or sent these therefore million entitled to $1.04 formed, Taylor, nothing 2. Around the time Carnallite but came those- initial dis- Bishop possibilities discussed investment with cussions until later. 8, loop in response questions system development potash to and Miller. In anomalously temp- failed to beds exist at jury comply high that Miller that stated questions to loyalty response eratures.” duty partnership, his with 22, and result, jury further that both partnership a was enti- found and as misappropriated Miller and Reunion Bish- damages.3 million in The tled $2.08 op’s found, trade secrets and that Miller was questions 12 jury through next in responsible for 80% of harm caused 15, comply that failed a Miller thereby and Reunion was responsible agreement and a confidentiality letter 26, answering Question jury 20%. In agreement and these failures each damages proximately by the found caused in Bishop’s resulted in a diminishment in- $1,696,428.55. In misappropriation to be venture of terest million. $1.04 32, response Question jury found find, response Ques- declined eight specific none of list of items Miller committed fraud was Reunion’s trade secrets.4 against Bishop. judgment, In its the tidal stated court Question inquired whether each item appears” that “it verdict favored pieces of in a list of thirteen information Bishop assigned and secret constituted and also basis, claims to Pinnacle Potash. On that compilation any or whether all of “[a] awarded Pinnacle court million $1.04 ... was his items” trade secret. The $1,456,929.84 damages plus actual in attor- that three items specific and ney’s fees from Miller for his breaches compilation spe- were trade secrets. The 15). 12, 14, (questions contracts no. cific “[t]he items calculations further court awarded Pinnacle Mr. temperatures the satu- $1,357,142.84 misappro- from Miller for the po- rated brine and concentrations of 20, 21, priation (questions of trade secrets leaving tassium chloride the well-head of 26). Lastly, the court awarded Pinnacle beds,” respective potash no. “[t]he $339,285.71 misappropriation of trade exchanger crystallizer use of heat Reunion, jointly secrets from Miller and conserve the natural of the potash heat severally. The court also Re- ordered (a) the pre-heating beds for both of feed pay union to 12.4% Pinnacle’s court brine) (including spent water for injection pay costs and Miller to of those 84.6% deposits into the potash to conserve the costs. present in the deposit heat so that more
potash produced will dissolve into the above, Reunion, As mentioned both on (b) cooling brine and of such brine hand, Pinnacle, so the and Bishop one on crystallize will and precipitate other, filed appeals have been resulting spent out brine brine consolidated. Reunion the le- challenges re-injection,” no. gal sufficiency “[t]he economic of the evidence the mis- advantage claim, and environmental benefits of appropriation while and Pin- the use of a heat in a exchanger jury charge.5 closed nacle assert error *9 Despite findings jury its favor secrets. did not answer several oth- plaintiff litigation, fact a that it was in the they questions predicated er because Bishop-Miller Partnership received no positive questions answers to which the judgment party award in final not and is a negative. answered appeal. to this opinion, 5.At times in this we refer collective- additionally 4. The declined to find Miller ly Bishop “Bishop.” to as Pinnacle or acted or with malice that Bishop-Miller Partnership any owned trade
767 In Trade Secrets and Re Bass A. liability or appealed Miller has him. findings against damages formula, any A trade secret is
pattern, compilation or device of informa tion which is used in one’s business and Appeal II. Reunion’s presents opportunity an ad obtain single ap- a issue Reunion raises vantage competitors over who do not know challenging legal sufficiency of peal, Bass, 735, or use re it. In 113 S.W.3d 739 finding support jury’s the evidence (Tex.2003). implies “Secret” in the misappropriation that it was liable for generally formation is not known or readi specifi- trade secrets. Reunion However, ly Id. available. the mere fact insufficient cally that there was contends that knowledge product process of a or (1) owned evidence to establish acquired through be ex inspection, (2) secrets, Reunion used Bish- trade perimentation, analysis pre does (3) secrets, suffered op’s trade or clude protection from those who would se a result. cure damages knowledge by unfair K means. & & Fishing G Oil Tool Serv. v. & Co. G G legal sufficiency “The final test for must Serv., 594, 782, Tool 158 Tex. 314 S.W.2d always whether the evidence trial (1958). Moreover, 788 fact “[t]he reasonable and fair-minded would enable some or of the components all of the trade people reach the verdict under review.” secret are well-known does not preclude Wilson, 802, City Keller v. 168 S.W.3d protection combination, compi secret (Tex.2005). legal suf performing 827 lation, integration or individual ele review, must credit favorable ficiency we (Third) ments.” Unfair Restatement if could evidence reasonable factfinders § Competition 39 cmt. f. Texas con courts contrary disregard have credited employment demn the of improper means unless reasonable factfinders evidence procure trade v. secrets. Sharma Vin “If disregarded could not have it. Id. Intern., Ltd., 405, mar 231 424 S.W.3d ... would enable reasonable and 2007, no (Tex.App.-Houston [14th Dist.] differ in people fair-minded their conclu not, pet.). question is “How could he sions, then must be allowed to [factfinders] knowledge?” have secured the “How but “A reviewing do so.” Id. at 822. court did he?” Id. judgment cannot substitute its person A liable for is disclosure trier-of-fact, long as the evidence so (1) or trade if use of a secret either falls within this zone reasonable dis means; secret improper discovers the Although agreement.” reviewing Id. (2) use, after properly disclosure and the light court must consider evidence in secret, consti acquiring knowledge of verdict, indulge most favorable to the reposed tutes a breach the confidence every sup reasonable inference would Hyde Corp. Huffines, him. v. 158 Tex. verdict, port the if the evidence allows (1958). To deter S.W.2d inference, fact nor one neither finder the mine whéther information constitutes may disregard court the infer
reviewing secret, following courts six apply sufficiency ence. We Id. measure (1) the infor factors: extent which the according charge the evidence sub mation known the claimant’s is outside jury. mitted to the Romero v. KPH Con (2) business; infor the extent to which the sol, Inc., (Tex.2005); by employees mation known and others (3) (Tex. Peca, business; v. Osterberg in the claimant’s involved *10 taken claim- extent of the measures 2000). injection potash deposits the informa- into the and secrecy of guard ant (4) potash of brine tion; cooling information to such so of the value (5) crystallize precipitate the will and out competitors; its claimant and to resulting re-injec- in brine for money expended spent or brine of effort amount information; tion, (3) advantages the economic and developing the the claimant in (6) a difficulty which benefits of the use of heat or with environmental ease exchanger loop a acquired system closed properly could be information Bass, development In re beds that exist duplicated by or others. anomalously high temperatures-as well as at 739.6 5.W.3d compilation “any or all” of thirteen a claiming a secret party trade the evi- challenges listed items. Reunion all factors satisfy need not six because dence on each these items. neatly not fit into each secrets do trade Temperature 1. Calculations of every Id. at 740. The sta factor time. Concentration trade tus the information claimed as a through must determined a secret urges engage Reunion this court evaluation of all relevant comparative a of the application” in “nonstandard Bass value, factors, secrecy, and including the factors, arguing Bishop’s alleged information well as definiteness of the as are derivative of informa trade secrets all defendant’s misconduct. nature of the his gleamed review files Id. at 739. itself, ie., the belonging to Reunion infor Bishop’s belonging Trade mation then to Buttes Re B. Secrets sources, predecessor corpora Reunion’s find- challenges jury’s Reunion first tion, during employment his with PB- ing any particular owned trade KBB. Reunion insists that while Miller above, spe- the jury secrets.7 As set forth misappropriated such informa three in a list to be cifically found items have, Bishop, tion from Reunion could (1) Bishop’s temperature trade secrets — already because “institutional saturated brine and the calculations for knowledge” of information or such such leav- potassium chloride concentrations readily information was ascertainable from respective potash the well-head its own files.8 (2) beds, exchanger the use of heat crystallizer specifically points heat of to the first conserve the natural Reunion pre-heating water item found to be trade potash beds for feed Question 20, they integral parts 6.' In was instructed to but that of his overall determining these six Bass mining consider factors scheme for in the Ten Mile Area. Moreover, whether trade secret existed. appeal question this legally whether the evidence was sufficient to by asserting begins argument support jury's findings, not whether Bish- "Bishop sought overly-broad protection,” op spoke broadly regarding too his trade se- pointing testimony, Bishop out that in his cret claims. certain ideas identified secrets industry mining infor- well-known in the urges 8.Essentially, the sixth of Reunion, clearly mation known for exam- factors, difficulty the Bass the ease or ple, reentering previously-drilled the idea properly could be ac- the information relationship with wellbore or the nature of his others, duplicated by quired para- is of assertions, however, Reunion’s ov- Reunion. mount case. consideration convey. ersimplify trying what was S.W.3d at 739. suggesting that he alone concepts privy to and this information these *11 5) (item ant temper- competitors of and to its a secret no. factor in —calculations exists). concentrations leav- ature and constituent determining whether trade secret purely based being the well-head—as. reject- Reunion further notes that jury from its Reunion fur- on information files. ed another' of thirteen listed items Bishop admitted that emphasizes (item 2) ther secret, no. as a trade which read: temperatures potash the elevated of 5, 9, potash “As to beds and the rela- However, beds a secret. the fact were not tive depth, the relative concentrations of presumably knew about the chloride, potassium and the importance of high in-ground temperatures pos- temperatures respec- elevated of the Bishop’s sessed the on which calcula- data tive beds to-the selective solution mining mean that tions were based does not it process.” suggests ju- that the indepen- those ever undertook calculations rejection rors’ of this item demonstrated importance in dently or understood their they did not Bishops’ appreciation believe Oil, K & way Bishop did. See G of the calculations constituted a se- trade B14 (explaining S.W.2d at 2, however, cret. Item no. was addressed knowledge may acquired mere be fact that of importance in-ground potash bed through experimentation, or inspection, temperatures concentrations, not cal- analysis preclude protection does temperature culations of and concentra: knowledge by those who would secure that well-head, tion at which were ad- means). unfair testified detail Thus, jury’s dressed in item no. 5. importance of these calcula- finding regarding item no. 2 no has rele- mining process tions in he envi- finding vance to in regard its to item no. 5. they pro- sioned—that effect meant the Moreover, was authorized to mining potash cess would effective for be compilation find a trade based on secret (using mining solution tech- selective more than one the thirteen listed region mining niques) in a where had not Thus, accepted items. even if we Re due mild previously occurred climate position union’s could not point Reunion does not conditions. protection claim trade secret for the calcu evidence, none, we have discovered temperature lations of well-head con importance that it of the understood centration, this does not' mean that those and concentrations at temperatures part calculations could not have been respect well-head in to selective solution compilation found- information Mile mining in the Ten Area. general to be a trade secret. See brief, reply Reunion addition ly Surgical Correa v. Assistant Houston ally points jury specifically out Servs., Inc., 14-12-01050-CV, No. temperature calculations WL at *7 (Tex.App.-Houston secret, to be a trade concentrations h.) (mem. July pet. [14th Dist.] importance not his of the appreciation information, op.) (“[Cjompilations of even However, those as the calculations. information, readily available consti instructed, of the use assessment secret.”).9 tute trade fulness of a secret importance determining Reunion further maintains that often a whether key part sufficiently identify calcu- apply. specific failed protection trade secret should Bass, lations that he are secrets. (identifying In re S.W.3d at 739 claims his trade ques- the claim- importance value of the information to calculations finding compilation 9. The will discussed in more detail below.
770 crystallize however, potash in brine that will tion, by Bishop such so explained they permitted resulting out of brine testimony, precipitate is that and his through mining re-injection. in for spent use selective solution brine of does developed. Reunion process industry trial, at Kim- expert Reunion’s would needed why Bishop have explain not Gordon, berly testified that the use of a record numbers in the identify specific Ten exchanger heat at Mile Area was men- of regarding the nature when he testified files, in tioned Buttes’s which Reunion sub- importance and their calculations Reunion, however, sequently inherited.11 This is mining process he envisioned. present did not Buttes’s document where a trade secret claimant not a case occurred, supposedly where this mention A amorphous, generalized claims. making is specific and neither Reunion nor Gordon numbers have specific of would discussion contrast, tes- about content. nothing Bishop’s case.10 added that a specifically plan using tified his Exchangers 2. Heat was exchanger “unique,” sug- heat Buttes, provide sig- gested could a that points Reunion next out advantage.12 nificant competitive exchangers mining potash heat use of may discounted Gordon’s brief men- industry. within was not unknown more accepted Bishop’s detailed Inc., See, Tex., Mgmt. In re Waste e.g., regarding using claims his vision for heat (Tex.App.-Texarkana mining in exchangers potash the Ten (“A pet.) trade secret cannot be Keller, City Mile Area. See knowledge general a in an indus matter (“Jurors judges are the sole however, try.”). acknowledges, credibility the weight of the witnesses and more trade secret claim was testimony. give They their choose specific just than the idea that heat ex witness to believe one and disbelieve an- in mining potash. could be used changers other.”). Indeed, pos that Bishop found regarding:
sessed a secret Advantage 3. Economic and Envi- exchanger crystal- of a The use heat ronmental Benefits to conserve the natural heat of lizer (a) potash jury additionally beds for pre-heating both brine) (including spent Bishop possessed water feed trade secret concern injection deposits advantage into to con- economic envi potash “[t]he deposit the heat so ronmental benefits the use of a heat present serve potash exchanger loop system more will dissolve into the in a closed in the (b) produced cooling development brine and beds that exist at 10.Bishop specific did fact discuss numbers 11. Gordon stated: "The use of heat ex- (150 changer to reheat return brine with the regarding temperatures well-head incoming in ... brine is mentioned Buttes’s degrees), and he stated that the satu- study they and "I think files” that’s ration levels were "close full saturation.” presented to the BLM in 1982 or 1984.” argument pos- did not Reunion's regarding sess a trade secret the calculations testified detail his con- readily ob- because such information so ception using exchanger heat under the from own is inconsis- tainable Reunion’s files presented at Ten Mile Area and circumstances argument Bishop did tent with Reunion’s gained inspiration as to how he for the idea making identify specific information in liquefied working gas pro- natural claims. jects utilizing exchangers. heat anomalously temperatures.” high Bishop’s plan, stating Without value of “I’m saying or authority, citation to the record of the parts sum is worth more than *13 merely claimed secret suggests that the parts. individual And it doesn’t mean knowledge of uses Bishop’s shows common that the sum has to every include one of using exchangers. and benefits for heat parts.”13 the complaints Reunion’s re- Bishop the testimony, compared In his a garding lack of evidence are without in use mining method he devised to those merit. mines, other potash emphasizing in the 5. The Bass Factors and of his economic environmental benefits unique- He testified to approach. also the Turning to the six factors from jury ness of his ideas. was entitled Bass,14 re there was evidence supporting accept his statements. Bishop conclusion that took efforts to Compilation keep mining process he designed se 4. by having cret those he shared it with sign Lastly, challenges Reunion confidentiality agreements, and he specifi a jury’s finding compilation that of more cally design testified that his was not a one of than the thirteen items in listed application known of technology within the Question Bishop’s se trade constituted industry. Bishop also testified directly re specifically cret. Reunion asserts garding the considerable value such pro any “put failed to evidence provide cess could in industry, permit exactly what went into [his] claimed combi ting economical environmentally- and nation non-secret and secret informa friendly cold-cracking in climates where itself, however, tion.” in speaks Reunion generally such methods are considered generalities analysis and offers no Bish cost-prohibitive. two experts also testimony evi op’s considerable and other regarding testified the value of his ideas. plan regarding dence his for mining potash Although Bishop acknowledged that he using in Ten Mile Area a selective only spent approximately one thousand process developed. Bishop solution ex he developing plan, dollars on his it is appar in plained process jury, detail to the spent ent he a considerable amount of jurors why unique told and how it in was his own time and energy develop industry provide competi and would Lastly, ment. partic there was advantage, played tive even and an anima evidence— ularly concerning Bishop’s own expe jury showing how process and knowledge riences which it Reports prepared worked. in 1998 —base-on plan could his explaining process pre be concluded that could not evidence, readily into be Bishop’s expert, duplicated by sented derived or others. Mills, Kenneth testified at trial was sufficient to en brief, suggests appellant’s pellee's nothing In its jury 13. Reunion brief. There that, jury because the found three of the precluded charge that would have secrets, Bishop's items constituted trade considering components all 13 items as include, compilation found could compilation just in a than the few rather most, only appel- those three items. In its separately Bishop's items it found trade (in response Bishop's charge lee’s brief secrets. cross-appeal), argues, issue in his Reunion however, jury's finding compilation that the Bass, 14. In re at 739. Reunion could have included or all of the thirteen generally does not discuss the Bass factors items, whether was each individual item urge application except "nonstandard” to be a secret trade on its own or not. them. agree argument ap- We with Reunion's in its a) employee an people to Miller was fair-minded able reasonable course acting Potash owned certain determine he when Question scope employment secrets as defined conduct; or committed such Keller, S.W.3d at 827. City b) agent Miller was Reunion’s Use: C. acting within Potash and no evi- Next, Reunion contends authority his actual when scope of it, as opposed dence established such conduct. committed *14 Miller, belonging to any secret used trade of categories on two parties The focus words, argues Reunion Bishop. In other negotiations with uses: Miller’s possible conduct of tortious and all Miller’s any that and Reunion’s submission BHP Allied interests, in interests in or was his own Plan to the mining Operation of a Carnallite, behalf of Reunion. and not on of that to acknowledges prior BLM. Reunion of Reunion on Au acquisition Carnallite’s misappro- found that 8, 2005, using clearly “Miller was gust in re- trade secret of priated a Bishop’s docu information derived from Question question, 21. In that sponse to develop plan to for Car- ments business answer instructed to was associates.”15 Reunion, nallite to entice business affirmatively for either Miller or any use points Reunion also out party it had find a secret exists and by Miller before Carnallite trade secrets it or in violation question in used disclosed Re and Miller became bought Reunion relation- of a or contractual confidential president could not be ascribed union’s by improp- secret ship, acquiring after propo two agree Reunion. with these We means, secret acquiring or after er sitions. improper. with the disclosure was notice further instructed that charge BHP 1. Discussions with and Allied of a trade secret means commer- “Use” Reunion further contends person seeks cial use president, once was Reunion’s even Miller of the secret. profit from the use trade alleged Bishop’s use of secrets his alone, receipt Standing mere of informa- Carnallite, always on behalf was commercial use. not establish does president at the same which he acquiring anoth-
“Improper means” Reunion. Accord time and which owned theft, Reunion, include the er’s trade secrets it not be held liable ing to should fraud, interception of com- any unauthorized it was use of trade secrets because munications, knowing commodity inducement or or more than a asset confidence, in participation a breach behalf attempted Miller to sell on of Car- in (cid:127)wrongful nallite, and other means either BHP then to ulti first to cir- wrongful under the purchaser, themselves mate Allied. of the case.
cumstances correspondence be- Post-August representatives, Potash tween Miller and BHP You that Reunion are instructed however, though Miller Miller reveals even for the conduct of responsible as himself Carnal- typically represented if: issue decided testimony. appears tween the two men. This According 15. Miller impression against to have been under the at trial he has not filed Miller right legal had information Bish- to use the appeal. agreements op developed be- based on negotia- purports the focus which he or she president, acting lite’s in a development of mineral tions was the transaction not apply does when the con- by Reunion. The evidence tortious). leases owned duct is While Carnallite further that Miller information shows used as well benefitted had the transaction to be secrets occurred, so, to do large part, stood investing entice BHP into attempting to because of ownership its of Reunion.17 money into the devel- considerable sums supports The evidence the conclusion that leases, opment even before of these Reunion, through Miller’s conduct purchase Any BHP would occur.16 BHP, president negotiating sought such of Reunion’s leases development to profit using Bishop’s trade se- enhance the value of Re- certainly would crets.18 presi- union itself. Because Miller was Submission BLM nego- dent of and was engaged of Reunion tiations to enhance value Reunion, Allied bought After Mil *15 leases, have jury reasonably the could con- ler continued to work for Reunion the acting cluded that he course corporate and in officer with cooperating scope employment of his as instructed outside the develop Operat consultants Romero, charge. the 166 ing Plan for BLM. submission to the Re (stating sufficiency S.W.3d at 221 that of union plan contends that while this may according to the evidence is assessed the genesis have had its trade se Bishop’s charge given jury). This is true even the crets, its creation and submission did not though represented Miller himself as an constitute a of Bishop’s “use” trade secrets See, e.g., agent of Grant Carnallite. due to important differences between High v. Prospect Thornton LLP Income Bishop’s plan actually and the work sub (Tex. Fund, 924 n. 18 S.W.3d & mitted. 2010) repre- that an can (explaining agent testimony, Bishop acknowledged time); at a principal sent more than one Operating Reunion’s Plan did not (Third) §§ Agency Restatement 3.14 toto”; however, copy “in plan his own he (discussing coprincipals), 3.16 agency d(3) complained Plan (same); Operating (discussing 7.03 & cmt. attri- “very pieces” similar” used “major bution of and ex- shared officer’s conduct devised, that: plaining plan including conduct “The presumption officer’s entity design. should well is use only be attributed the same of the complains regarding Although suggests 16. Reunion Reunion in a was BHP, footnote merely Carnallite was to sell to asset fact that the was not authorized to correspondence proportionate responsibili least some shows assess Camallite's however, Reunion, pur- ty charge. that BHP have been interested in in the does not itself, chasing company. parent Carnallite any point raise of error this omis Co., Wilson, sion. See Pat Baker Inc. v. (Tex. 1998) appears urging (stating to be some form that an veil, piercing corporate suggesting appellate court cannot reverse a trial court's because, Reunion, error). judgment unassigned Carnallite as owner non- on ultimately profit would from the enhancement as a suited Carnallite defendant before trial leases, of Reunion's Reunion itself could not began. be said to benefit from such a transaction. Reunion, however, used some same infor- authority 18.Miller later neither cites purchase mation Allied to support proposition, any cites to entice such a nor urged place posi- from Carnallite. We need not consider in the record where it this whether was a use Reunion. in the trial court. this also secondary importance, 5 and 9 mining. recognition beds solution selective you to high temperature Operating allows Plan focuses whereas (3) The beds 9; flow rates. design, crack. The field cold beds 5 well (Third) of Un- Restatement leached.” See plant layout, proposed process flow (“The § cmt. c unau- Competition (4) fair different; proposed heat ex- are as- every use need not extend thorized changer plans; is different two secret; the trade use or feature of pect (5) utilizes exchanger Reunion’s heat the secret portion substantial chiller, a chiller whereas believed to liabili- subject actor sufficient acknowledged Gordon necessary. was not expert, mining solution ty.”).19 are there similarities between two Mills, into Bishop’s plan broke Kenneth by pointing out plans explained but Re- parts and component concluded plans developing that the were aimed at Plan 15 of Operating incorporated union’s area. geographical the same modified or components and either those provided While Gordon remaining six. He further discarded guide its anal- important considerations Plan,” “Bishop that without stated testimony provide her did con- ysis, never “these modifications would (“[T]he proof clusive that Reunion did not use need id. actor been done.” See original Bishop’s preparing trade secrets use the trade secret in its Thus, using Operating an actor is Plan. Gordon confirmed Bish- form. liable creat- independently trade secret with op’s acknowledgement that Reunion did *16 if the or modifications improvements ed in toto plan not submit to the BLM as substantially the derived from Plan; however, result Operating its own she did secret.”).20 trade directly contention Bishop’s not refute major plan of his were includ- pieces Gordon, analyzed expert, Reunion’s also in the Plan. Gordon’s testi- Operating ed Bishop’s plan differences between mony also does not refute Mills’s conclu- Plan and that Re- Operating concluded in sion that even the modifications not Mr. Plan.” She using Bishop’s union “is of the Operating Plan were result use plans being two “funda- described the Bishop’s jury secrets. The trade mentally emphasized She different.” plan Bishop’s Oper- before it both and the (1) Operating Plan was contained Plan, and, by expert ating guided tes- document, were Bishop’s ideas one while (2) documents; timony, jury determined that Reunion Bish- over several spread 19, Bishop’s bed used trade secrets. op’s primary focus express- Operating in the Plan were the three Supreme The Texas Court has not fied 19. Question adopted purposes ly Restatement all jury response items found but related trade secrets has referenced Bishop. 20 to each constitute trade secret of Restatement, 40, including section on several certainly While modification was a factor the Bass, See, e.g., In re at 739-40 occasions. making jury could considered in its de- have (examining changes at Restatement "use,” pointed it termination of must also be length); see Twister B.V. v. Newton Re- out that the held a trade Partners, LP, 428, 438-39 search 364 S.W.3d just compilation secret in a of items and (discussing (Tex.App.Dallas pet.) use no Moreover, in the three individual items. for trade in Texas of Restatement secrets emphasized even Mills the modifications specifically referencing section comment Operating have been Plan would never c). developed Bishop’s if for the use trade secrets. emphasizes among the com- 20. Reunion ponents been Mills determined modi- h.) (“[A] many pet. plans profit contain similarities. lack of from
The two
misappropriation
Mills indicated the similarities
[the]
use of
se-
Plan
Operating
to the fact the
cret will not
exempt
wrongdoer
due
from
Bishop’s plan;
liability
was modified version
amount
trade secret’s
re-
explained any
misappropriated.”).
Gordon
similarities as
value when it was
plans
sulting from the fact the
were aimed
something
urges
more
goal mining potash
at the
from the
same
than
required,
this was
but
it cites no
bring-
Ten
acknowledged
Mile Area. Miller
in support
argument.
cases
of this
ing Bishop’s concepts
Reunion and
cite,
one case it does
Metallurgical Indus-
pre-
working with outside consultants to
tries,
Fourtek, Inc.,
Inc. v.
790 F.2d
Flan,
pare
linking
thus
Operating
(5th Cir.1986),
is distinguishable.
was such that
Bishop’s plan.
Industries,
Metallurgical
the defendants
people
and fair-minded
could
reasonable
process
used a
plaintiffs
claimed violat-
reach the verdict the
reached in this
ed their trade secrets to
two
modify
Keller,
City
case. See
defendants’ furnaces.
Id. at 1197-98. The
furnaces were
used for
never
commercial
however,
sub-
suggests
purposes,
shortage
Reunion further
that the
because
aof
Plan
Operating
scrap
mission of the
to the BLM of the
used in
material
the furnaces.
could not have constituted “commercial
Id. at 1198. The
held
court
that there had
Bishop’s
use” of
because the been no
use of
trade
secrets
commercial
se-
BLM
the Plan and there is no
rejected
pro-
crets because
furnaces had never
begun mining
anything
evidence Reunion has
based
duced
useable.
Id. at 1205. The
above, the
plan.
As set forth
court further
that if in the future
stated
sought
profit
defined
as “commercial
the defendant
use or
charge
“use”
furnaces,
person
profit
use which a
seeks to
sale of
an action for relief
added).
Here,
(Emphasis
then
might
the use of the secret.”
lie.
Id.
there was evi-
*17
submitting
jury
In
Plan
the
on
Operating
rationally
to
dence
which the
could
BLM,
approval
begin
sought
to
sought
profit
using
to
conclude Reunion
potash
attempting
in the
to
moving
mining
Bishop’s
toward
trade secrets
jury
approval
Ten
It
for the
mine the
leases
Mile Area. was rational
secure
to
Prod.,
so,
Energy
to
that in
it owned.
411
doing
conclude
See Sw.
3461644,
*15;
600,
profit
Bishop’s
use of
at
WL
at
seeking to
from its
S.W.3d
2013
See,
Midtown,
L.P.,
Storage,
Sw.
e.g.,
Energy
trade secrets.
Prod. SP
Ltd. v. Urban
14-07-00717-CV,
1991747,
Berry-Helfand,
Co. v.
No. 12-11-00370- No.
2008 WL
at
CV,
608-09,
8,
581,
May
(Tex.App.-Houston
Dist.]
411
WL *7
[14th
S.W.3d
denied) (mem.
10,
3461644,
2008,
July
op.).21
*24 (Tex.App.-Tyler
pet.
at
solely
Energy,
analysis,
In
evidence demon-
data and
to evaluate
tiff’s]
Southwestern
gas production
plan,
strated the defendant oil
prospects,
map,
and lease
the ...
but
company
drilling
in a
had concluded
drilling pro-
a vast
...
preparation for
particular
profitable;
area
would not
how-
600,
gram.” Id.
WL
at *15.
at
ever,
subsequently
after it
reviewed—under a
Damages
using
the case
calculated
confidentiality agreement-a study performed
approach.
royalty”
Id. at
the "reasonable
plaintiff showing
spots”
"sweet
certain
609-10,
to be pre- are does not trade secret well-known misappropria- one value for provided combination, however, for ignores the clude a secret protection argument, tion. This the compilation, integration or of individual all of discussed items the possibility elements.”). secret; trade part Bishop’s of were in fact all, Bishop owned a after jury, complains that Reunion further comprised of trade secret compilation analysis hypothetical on a Woods’s focused items in of the thirteen listed some or all Miller, in negotiation between Moreover, ap- Woods jury charge. Reunion, not Bishop and and did stead of reasonably concluded that pears to have Miller have may take into account the fact trade there exists a Bishop’s within secrets shared the information others or of without which min- sorts “tipping point” have negotiations could occurred different Mile Area was not economi- the Ten arguments ig at different times. These analysis, cally feasible. Under indicating nore the considerable evidence illogical assign to a value to each would be agent Miller as an Reunion served compilation.28 of the separate piece its president from the time became Next, time with outside through asserts he worked Woods Operating to Plan figures develop due consultants properly failed to discount to BLM. It for submission therefore to the fact some the information necessarily improper was consider part his trade secret was not claimed half negotiating pair. domain. Re Miller as one public indisputably Furthermore, of the negotiation deems it “absurd” that Re core further union analysis buyer paid money willing have would be be told what union would license Again, willing pay willing in its own the fact seller what was files. trade at issue. Re information used was in to use the secret See that some (Third) public Competition or contained within Re statement of Unfair domain § necessarily g. suggest not how would not lessen cmt does union’s files the hypothetical trade as Miller’s name as using the value of his secret: discussed buyer” calcula prior opinion, “willing changed Woods’s sections this any way. points Bishop’s tions in Reunion further demonstrated without secret, value of no to no evidence that the the trade thought there was little or mining any way Ten affected economically secrets disclosure, BHP, Area; prior such as that reasonably Mile could have failed this appreciate possi trade secret made Woods deduced that bility. generally Mgmt. it was See In re Waste mining such feasible where not feas (Tex. (Third) Inc., Tex., ible Restatement before. (“The App.-Texarkana pet.) (explaining § f Competition cmt. fact Unfair words, regardless arguments plan had the value Reunion's do same other possibility value many component parts account how involved or Bishop’s plan fluctuate based on own. were trade secrets on their items of individual contained number explanation, Reunion com- Without key plan. Bishop’s plan If within the assign plains that Woods failed to a value to potash mining in the Ten Mile Area that made surface, compilation as On the a whole. feasible, economically jury may opposite to be of their com- appears determined, reasonably it would not necessar- *20 plaint disaggregate to items failed plan ily components the matter that had three compilation. from the or could have determined thirteen. petent is not secrecy required that while absolute when it to “fail[ed] account basic realities,” protection apply, to the marketplace including for trade secret “unex- precautions pected take competition,” owner must reasonable to stagna- “economic risks.”).30 information); tion,” secrecy of the and ensure the “other (Third) Competi- Restatement of Unfair As stated in Woods his trial testi (discussing § f tion 39 cmt. level of mony, “the purpose supple main of [his] secrecy stating, required “[C]onfiden- mental report” towas address the reliabili ... destroy tial will not the in- disclosures ty calculations, of the underlying financial status as a trade secret. Even formation’s including specific regarding elements Mil will limited nonconfidential disclosure not ler’s background, relating events if necessarily protection terminate the re- case, arising and events subsequent cipients secrecy ... maintain the of the in- misappropriation of Bishop’s secrets formation.”). certainly Reunion was free that Woods determined made the financial this at question regarding Woods trial projections reasonable and reliable. Re put expert.29 or to on its own evidence or union does not mention supple Woods’s Lastly, posits mental report Reunion in its briefing nor discuss methodology was unreliable be Woods’s substance contained Al therein.31 projec though ultimately cause he utilized Miller’s financial BHP to partici declined pate that adequate financing project, tions and assumed it is developing project arranged. why for the could be clear on exactly this record BHP support, points to earlier at made this decision. It had little tempts plan to market the that were un to do viability project. with the of the successful, such BHP Ultimately, as the overtures to Miller convinced Reunion to initially Miller’s unsuccess invest and did the same Pin ful nacle. attempts Gray find investors. Reunion President Gordon adequately further Woods optimistically asserts failed testified ob regarding account inherent involved in taining funding. risks further not-find We do project citing any this magnitude, City legal sufficiency of merit in Reunion’s Sharboneau, v. Harlingen arguments Estate expert Woods’s testi (Tex.2001) or, (finding .mony 184-85 ex reports consequently, pert testimony sufficiency damages.32 on fair value incom- market of the evidence on Reunion, fact, profits presented [Bishop] present 29. its own ... evi- valua- did not Schwabauer, expert, provided any University Computing Karl who dence fac- ... a critical assessment of tors was left eviden- Woods’s calculations without However, underlying tiary assessing damages.” reliability as well as of the basis for stated, projections. point report financial Woods’s second propriety using was to address report, projections ’’[a]s Woods stated use of financial that he Woods also did. going allow min- expressly report trade secrets was that the stated second University guided and sales from location that Computing factors his anal- mention, previously profitably ysis. been much able Reunion does not less produce, potash, analyze supplemental report, the value of trade secret critique, entirety expected report is the of the value to be supplemental and the renders Re- Project.” challenges original report derived from Reunion contends union’s- to language suggests that this Woods did not moot. sufficiently contemplate the risks. argu- any specific not make 32.Reunion does "[bjecause 31. Reunion asserts that ments based on fact that while Woods [Woods] damages pro projections royalty speculative relied on forma concluded reasonable *21 780 responsible and any ap- respon- in of Reunion’s 80% Reunion 20%
Finding no merit its sole is- we overrule pellate complaints, sible.
sue. Supporting Proportion- A. Evidence Question Responsibility ate Appeal
III. & Pinnacle’s ap- in his Bishop raises two contentions issues, argues, first in two peal, asserting the trial court erred 22 Question was immaterial because (or Ques- submitting failing disregard) to (1) that this was a the evidence established responsibility 22 on for proportionate liability “pure” case of vicarious because (1) it because not misappropriation in any there is no evidence Reunion acted and therefore im- supported by evidence to secrets ex way misappropriate (2) predicated not on find- material and (2) conduct, and cept through Miller’s by conduct Miller. independent no misappro there is evidence that Miller Question predicated 22 was on an affirma- his priated trade secrets outside of rela finding by misappropriation tive for both tionship with Reunion. therefore Ques- response Miller and Reunion trial not have asserts that the court should Question tion 21. 22 further instructed proportionate responsibility submitted the jury, person you “For each jury. Tex. & harm, issue to the Civ. Prac. caused contributed cause 33.003(a) § (governing propor Rem.Code percentage responsibility attrib- find (b) determinations), jury responsibility found Miller tionate each[.]” utable million, jury specific $49 awarded factfinder was restricted to the $1,696,428.55 by damages. figures proffered parties). for such Reunion's Here, argument essentially input competing because Woods’s unreliable, testimony reports guide expert analysis; there witnesses support reasonably may was no evidence award have believed some of royalty damages. testimony reasonable In other regarding value but Woods’s words. expressly seeks a reversal and ren- agreed with some of Schwabauer’s der, See, Outdoor, Potter, ERI not reversal and remand. See Con- critique. e.g., v. CBS Inc. Swinnea, sulting 01-11-00650-CV, 269091, Eng'rs, Inc. v. 318 S.W.3d 2013 WL No. at 867, (Tex.2010) (remanding 24, 877-78 case (Tex.App.-Houston [1st Dist.] *13 Jan. plaintiff proved prof- 2013, denied) when entitlement to lost pet. jury's damages (upholding damages but trial court awarded more than profits award based on lost when award was Cantu, supported); the evidence v. No. Garza plaintiff's expert below amount testified to 14-11-00724-CV, 2631573, *5, 7, WL experts critiques opposing offered 11, (Tex.App.-Houston June [14th Dist.] plaintiff's experts calculations and not their 2013, h.) pet. (reversing remanding no calculations); Brown, Wagner v. & own Vela new when evidence demonstrated for trial Ltd., (Tex.App.-San 50-51 An damages were incurred not the some but full pet.) (explaining tonio jury). amount awarded weigh testimony competing expert entitled to royalty damages and could rea lost Moreover, given calculating the nature of sonably plaintiff's expert’s pro have reduced royalty hypothetical reasonable based jections challenges based on made defen negotiation, juries royalty in reasonable cases example, expert). As dant's one Schwabauer flexibility are entitled a certain amount of See, strongly using per a 10 criticized Woods making e.g., their determination. Un present Co., determining the cent discount rate in Sign isplay, S.A. Amer. v. Elec. F.3d (Fed.Cir.1995) potential profits; Schwabauer value future (stating reasonable argued percent a rate of would be royalty question 50-80 calculation is a of fact that more reasonable. He further criticized “necessarily approxi involves an element of accounting properly uncertainty”); Diag Woods mation and SmithKline calculations, nostics, among Corp., payment Inc. v. Helena Labs. 926 F.2d of taxes (Fed.Cir.1991) things. (explaining other
781 (“This It is undisputed section does not allow submission that before he became Reunion, president of Miller used at least question of a conduct to some Bishop’s information in presenta- any person without sufficient evidence by tions to other shareholders of Carnallite submission.”); v. support to Rosell (which Reunion) subsequently bought as Inc., Stages, Motor 89 Cent. W. S.W.3d others, well as to BHP try to to obtain pet. de- (Tex.App.-Dallas investment, their in the project, (“[Wjhile nied) the statute on its face re- Texas Community Bank in order to obtain all quires defendants to be included funding purchase Reunion. question, it would not apportionment maintains that the information in these employer for an to be proper included earlier presentations, sometimes entitled its along only responsi- with the driver if Summary,” “Executive was not specific bility respondent superior.”). was that of enough to misappropriated his trade Alternatively, Bishop contends the trial secrets. According Bishop, only it was have disregarded jury’s court should presentations, later PowerPoint findings Spencer Eagle on the issue. See v. developed Miller after Carnallite pur- Am., Star Ins. Co. Reunion, chased in the Operating Plan (“A (Tex.1994) may disregard trial court actually submitted to the BLM that Miller jury finding only unsupported by if it is used enough Bishop’s plan to constitute immaterial”). ... or if evidence the'issue misappropriation. apply the usual standards We review summaries, however, The executive pro- governing evidence contentions. See significant vided detail regarding Bishop’s Keller, at City 827.33 plan mining potash, touting novelty process explaining' it was Reunion first asserts that suc- mining selective solution technique bor- cessfully sought verdict on directed Bish- gas industry rowed from the natural by explain- other tort op’s against claims counter-flow, utilized a recycling heat ex- alleged against all of the conduct ing that changer crystallizer and provided en- actually Miller. performed vironmental such as using benefits less However, assuming only even Reunion can “footprint” water and a smaller than those liable on be held based Miller’s actions on BLM; typically allowed Other com- behalf, necessarily this does not mean engaged in, munication with BHP Miller proportionate responsibility submission others, representatives, among prior to his at error. There was least some provided association with also de- that Miller record regarding Bishop’s plan tails and hinted misappropriated Bishop’s trade secrets had been additional details otherwise capacity agent or vice outside above, shared. As discussed detail even Reunion, meaning there is evi- principal once purchased Carnallite Reunion and to support dence the trial court’s decisions president, Miller became Reunion’s there proportionate responsibility submit was evidence continued Miller to act apportion and for the question behalf of and in his Carnallite own inter- responsibility between Miller and Reunion. ests as example, well.34 For the Carnallite trial, Carnallite,” "wearing closing argument Bishop's In his was at times hat of ultimately, attorney but that Reunion had the informa- urged find that Reunion going and the asset forward. percent responsible was 80 dam- percent ages responsi- and Miller was multiple 34. "When the individuals serve same so, doing explained ble. officers, directors, employ- entities as their Plan, not have been submitted because which Miller admitted was should
Business *23 liability potential only from Reunion’s was deriv- wholly Bishop’s essentially taken liability ative of individual.35 develop capital- how to Miller’s plan, discusses this, suggests objection that was mining process devel- upon ize put not sufficient to court on plan might by itself oped. While this separate question indepen- on Bishop’s use of notice that a commercial constitute secrets, dent was Rule of supports required. it the conclusion conduct Texas however, solely requires not on Civil Procedure operating that Miller was objecting that to a must Bishop’s party charge he used “[a] behalf Reunion when distinctly point objectionable mat- out information. grounds objection. Any ter Furthermore, in his communication with definition, complaint as to a or question, BHP, working himself as Miller identified instruction, defect, any on account of omis- Carnallite, proposals and one of his was sion, pleading, or fault in is waived unless buy Carnallite itself and not BHP to specifically objections.” included this just Altogether, Reunion. 274; P. Tex.R. Civ. see Carousel’s supports the trial court’s decision to sub- Creamery, L.L.C v. Marble Slab Cream- proportionate responsibility mit issue Inc., ery, (Tex.App.- Consequently, we overrule jury. by Houston dism’d pet. [1st Dist.] Bishop’s two issues. first (“An agreement) objection does not meet Independent B. Not Predicated on requirements of 274 unless the defect Rule Conduct by the upon objecting party relied and the issue, Bishop complains third that his grounds objection specifi- are stated responsibility Question proportionate 22 on cally enough support to the conclusion predicated finding on a should have been fully cognizant trial was court independent Miller of his conduct ground complaint deliberately chose of Reunion. spe- conduct on behalf More it.”). objection to overrule nei- cifically, the trial court Bishop contends problem ther specific mentioned the disregarded jury’s should have answer (failure con- complains appeal about on to Question 22 because Reunion failed proportionate responsibility dition the necessary re- predicate finding obtain a question question regard- on an additional Miller’s conduct. garding conduct) nor independent Miller’s urged the solution he now was re- claims begin by noting We (submission quired separate question of a charge object did conduct). Tex. regarding Miller’s grounds question it omitted a on inde 33.1(a) pre- P. that as a proportionate R.App. (providing or that the pendent conduct requisite complaint predicated presenting ap- responsibility question was review, finding. Bishop objected pellate complaint must be on such a trial Question ground timely request, on the it made to the court ees, argument necessary rejected in dis- may become to determine We above cussing Bishop's Basically, two issues. entity an individual’s conduct first (Third) assuming liability even all of Reunion's should be attributed.” Restatement conduct, d(3). appeal, proportionate own Miller’s Agency § 7.03 cmt. In its based on question properly still argues responsibility of Miller’s sub- all conduct or because there was evidence that Miller on his own behalf on behalf of mitted either misappropriated of it or trade secrets outside of Carnallite and none benefitted agency for can be to Reunion. Reunion. ascribed objection, CHRISTOPHER, Justice, motion that stated TRACY concurring. complain- grounds ruling for the that the ing party sought the trial court with I join in the Although judgment and in specificity sufficient to make the trial court majority’s analysis of most of the is- complaint). aware of the I presented, sues write separately because I would conclude that Reunion failed to Furthermore, Bishop does not offer preserve some of complaints concerning *24 supports or authority position his of- the legal sufficiency of sup- the evidence explanation why charge fer an as to the as damages porting the finding. given was not under circum- sufficient jury Reunion asserts that a cannot de- 38.1(i) (re- stances case. of this See id. termine amount royal- of a reasonable quiring appellant’s brief “contain a clear ty matter, an expert opinion without on argument concise the contentions only and that the expert opinion on this made, appropriate citations to author- subject was that of James Woods. Re- record”).36 ities jury and to the was union argues opinion that Woods’s instructed, 21 specifically Question on unreliable, thus, is no there misappropriation, Reunion would be of a royalty. reasonable responsible only for Miller’s conduct In determining ap- extent that within whether Reunion’s conduct committed pellate arguments reliability about scope employment actual of his or his opinion preserved Woods’s for re- authority agent. The as an fact that the view, guided are by we Transport Coastal parties misappropriated found both Co. v. Crown Central Corp., Petroleum 136 only trade secrets but Reunion was 20% (Tex.2004). Coastal, S.W.3d 227 responsible strongly suggests that the court stated: at least some Miller’s conduct was expert’s When the underlying methodol- scope not within or employment ogy challenged, is above, “necessarily court agency. As discussed the evidence beyond expert looks what the said” to supports finding. Bishop this not es- has reliability expert’s evaluate the tablished that the trial court erred sub- opinion. When testimony is chal- mitting charge. Accordingly, we over- lenged conclusory speculative or rule Bishop’s third issue. face, non-probative therefore on its how- ever, beyond there is no go need to IY. Conclusion face reliability. record to test its Having overruled all of the raised issues We therefore when a conclude that relia- in these consolidated we af- cross-appeals, bility challenge requires the court firm judgment. the trial court’s evaluate the underlying methodology, data
technique, foundational used CHRISTOPHER, J., concurring. an expert, objection timely must be Industries, Allen, Bishop Texas cites Rule of Civil Procedure Inc. v. 985 S.W.2d 457 (relating (Tex. 1998), 279 defenses) omitted elements of claims or proposition plaintiff for the that a Lawler, DiGiuseppe v. 69 finding must obtain additional in order to (Tex.2008) (discussing rule interference, prove which tortious elements), 279 and deemed but neither of Question hand, analogizes to the circumstances but suggests these authorities summary judgment case Powell was proportionate responsibility should have been says nothing about what be in a should predicated finding independent on a con- charge. duct further Powell Miller. cites Tex.R.App. appellate review. ject court has the trial
made so 33.1(a). analysis. P. this to conduct opportunity challenge However, is restrict- when the Second, argues Woods’s ... the record the face of ed to is con- unreliable because opinion testimony spec- is expert when example, negotiation between hypothetical sidered its ... then conclusory on face ulative or and not between Bishop and Miller challenge legal suffi- party pre- Reunion also and Reunion. failed the ab- even in ciency of the evidence complaint in the methodology serve any objection to admissibili- sence of thus, court, complaint is not trial ty- subject appellate review. Pharm., Dow Id. at 233 Merrell (quoting Third, argues Woods’s (Tex. Havner, Inc. v. en- rests opinion unreliable because 1997)). *25 tirely projections, on Miller’s without that Woods’s Reunion does not contend financing, and showing potential a for conclusory on speculative or opinion was the considering the downsides of without Instead, three raises face.1 Reunion its unforeseen market condi- venture such as methodology. complaints about Woods’s the trade secret tions or the risk that complaint not is a work. This also would First, that Woods’s argues Reunion methodology, but because about Woods’s of concerning total amount the opinion arguments were addressed in detail these of by misappropriation damages caused response mo- Bishop’s in to Reunion’s both is because Woods trade secrets unreliable in testimony to exclude Woods’s damages identify amount of did not the motion, of the I reply support Reunion’s of each misappropriation caused appeal of purpose will assume for the this com- secret. Because this individual trade preserved methodology arguments that those Woods’s plaint about court, it is not sub- review.2 preserved in trial Williams, brief, argued Drilling Corp. v. 868 See also Penrod appellate reply In Reunion (Tex. curiam) 1993) (per specu- projections were financial that Miller’s ("Texas lative, thus, obligated are courts ... follow on those Woods's reliance higher Texas courts and the United States specula- figures opinion to be caused Woods’s Court.”). Supreme argument, support of tive well. In this a unpublished on case from Reunion relied Ceramics, preserves which v. 2. Unlike a motion limine See Inc. federal court. Carbo review, (not (2006) nothing testi- Keefe, a motion exclude Fed.Appx. complaint (holding mony preserve about designated publication) can GreenbergTraurig inherently expert’s opinion admission of evidence. See plaintiff's N.Y., Moody, speculative on defen- P.C. v. 161 S.W.3d because it was based of pet.). projected (Tex.App.-Houston no [14th Dist.] of reve- speculative dant's evidence case, 103(a)(1) nues). (specifying that er- purport See Tex.R. Evid. the court did not pre- apply evidence error-preservation rules that ror the admission of is to address timely objection or required "a motion This court is served unless in Texas state courts. record, Co., stating specific appears of Transport and because strike to follow Coastal ground specu- ground objection, specific on if the argument that Woods’s reliance context”). opinion apparent Al- "inher- was not lative renders own data his though appeal require complains on ently the court to speculative" would evidence sufficiency expert-opinion the foundational data on evaluate admission, relied, relies complaint method- rather than on its it is a about Woods arguments many made in ology, complaint pre- on of the same and such a must be by timely objection. with the motion exclude in the trial connection served court Co., through Re- Woods. Transport at 233. evidence to be offered See Coastal might have arguments alternative sources for the informa-
While these tion. jury had awarded the full more force if dollars, jury million awarded less
$49 Contrary to assumption, Reunion’s the evi- party than amount. Neither 3.5% of dence relevant to these factors was not how explained has appeal this opinion. limited to Woods’s $1,696,428.55 damages, arrived The jury years heard that spent apparent is from the rec- explanation working development on the trade Reunion, however, not chal- ord. does secrets. Evidence also was presented that sufficiency of lenge the evidence (with Miller sold Reunion Potash challenges damages; amount of the le- secrets) profit to Allied Crude aat sufficiency gal of the evidence the exis- million. Schwabauer testified that $1 damages. evaluating tence of And in considered to be this evidence value. there complaint sup- is no evidence also heard evidence that Miller finding, we port a cannot limit our review was in trouble desperate financial and was challenged ap- to the evidence evidence, for a sale. From this all of peal, but instead must consider reasonably infer that was a could fac- record-including evidence determining tor in million sales $1.25 party. complaining offered price, company might and that *26 Wilson, 802, v. 168 S.W.3d City Keller been higher price sold for a if Miller had (“Nor (Tex.2005) can support- evidence difficulty. been in financial There also n party a be identified verdict was evidence that Miller also matter, practical As a a offered it.... purchasing.a investor interested 65% begin to say court cannot what evidence ownership plus interest for million a $5 supports reviewing a verdict without it capital jury additionally investment. The all.”). spent heard that Reunion Potash mil- $10 acquiring lion information about leases reviewing A court evaluates the suffi- potential development before ciency jury evidence in of the light purchased company, Allied and that Mathis, charge. v. 353 S.W.3d Barnes expenditure important the size of this curiam). (Tex.2011) Here, (per purchase. Allied’s decision to Allied the jury was instructed to consider factors $250,000 spent then costs development that included on the project. Although the addition of resulting changes foreseeable purchase price this amount to the of $1.25 competitive the parties’ posture; brings million Allied’s investment $1.5 prices purchasers past may million, or licensees also heard that jury evidence the total of the confi- paid; value sell mil- Allied would not Reunion for $1.5 Bishop, including lion; thus, dential information to jury reasonably could infer impor- costs and the development that Reunion was worth Allied knew tance of the confidential information to more price paid than the Allied for it. business; additionally the nature and ex- The it evi- had before tent of use for the confi- dence of venture potential financing intended information; Bishop; from both availability dential and the Miller received, requests only delay primary union in its that the clerk further would stated brief supple- of the trial court had been asked to appeal altering the resolution of without motion, copy ment with a the record disposition. although supplement no such has been secrets; of the trade viability IN ANAMBRA STATE COMMUNITY own Schwa- expert, of Reunion’s testimony HOUSTON, (ANASCO, INC. rate bauer, a of 50-80% discount Inc.), Appellant for risk necessary would account conditions, re unforeseen market such as v. value. Schwabauer sulting in a million $15 venture that the value argued ULASI, Chinwuba Individual Christian reduced 35% account had to be ly and the Former President Although Schwabauer testified taxes. ANASCO, and N. Nweke Vincent d/b/a tó be had taken “with projections Miller’s Community Houston, Anambra State “just starting salt” and were grain- Appellees. agreed projections point,” to attract investors. could be used No. 14-12-00107-CV. strength on the jury knew based Texas, Appeals Court of bank loaned projections, these had (14th Dist.). Houston $500,000 to Miller to obtain the leases. pro Allied these knew that Sept. Reunion, although jections bought when “much Gray put that he did not testified And, points in them. as Reunion
stock”
out, expert-opinion heard testimo part projections of future
ny based Sw. Energy Production Co.
revenue. 12-11-00870-CV, Berry-Helfand,
v. No. 610-14, 2013 WL *27 (Tex.App.-Tyler July *26-29 h.) royalty” pet. (affirming
no “reasonable award
damage misappropriation projected
trade revenues secret calculation). part expert’s
I that there more than would conclude
a scintilla of evidence of factors Re- was instructed consider.
union that there is claims damages, legally but because there is se-
sufficient evidence that
crets had financial value and could have roy-
been sold or licensed for a reasonable
alty, point I overrule this of error would considering complaints additional
without methodology
about Woods’s that were court.
preserved trial