                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00108-CV


ALLY FINANCIAL, INC.                                                 APPELLANT

                                        V.

SANDRA GUTIERREZ AND                                                 APPELLEES
HOMEWARD RESIDENTIAL


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          FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION 1

                                     ----------

      Appellant Ally Financial, Inc., appeals from the trial court’s order granting

summary judgment in favor of appellees Sandra Gutierrez and Homeward

Residential. We affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).




      1
       See Tex. R. App. P. 47.4.
                                 I. BACKGROUND

                       A. GUTIERREZ’S EMPLOYMENT AT ALLY

         Ally, which is incorporated in Delaware and headquartered in Michigan, is

a “leading vehicle financial services company” and “operates as a bank holding

company.” Ally also originates and sells mortgages. Gutierrez began working for

Ally in 2004 and was an “IT Leader” in Ally’s Lewisville, Texas, office. The IT

department was responsible for managing personnel and “ensuring work

performed adheres to company standards and . . .           business requirements.”

Gutierrez supervised “approximately 89 information technology employees” and

evaluated their performance.      She was responsible for “all aspects” of the

operation of the IT department. Gutierrez had access to personnel records for

those employees she supervised and to Ally’s strategic and confidential business

plans.

         In 2008, Ally adopted a “Long-Term Equity Compensation Incentive Plan”

(the CIP) under which certain employees would receive award payments “based

on Common Stock Value.”           The CIP’s purpose was to “motivate certain

employees [of Ally and its subsidiaries] to put forth maximum efforts toward the

growth, profitability, and success of [Ally and its subsidiaries] by providing [stock]

incentives to such employees.” By its explicit terms, the CIP was governed by

Michigan law: “The Plan, all Awards granted hereunder, and all actions taken in

connection herewith shall be governed by and construed in accordance with the

laws of the State of Michigan without reference to principles of conflict of laws,

                                          2
except as superseded by applicable federal law.” The CIP also included a non-

solicitation covenant:

      While the Participant is employed by the Company or a Subsidiary,
      and during the 2-year period immediately following the date of any
      termination of the Participant’s employment with the Company or a
      Subsidiary, such Participant shall not at any time, directly or
      indirectly, whether on behalf of . . . herself or any other person or
      entity (i) solicit any client and/or customer of the Company or any
      Subsidiary with respect to a Competitive Activity or (ii) solicit or
      employ any employee of the Company or any Subsidiary, or any
      person who was an employee of the Company or any subsidiary
      during the 60-day period immediately prior to the Participant’s
      termination, for the purpose of causing such employee to terminate
      his or her employment with the Company or such Subsidiary.

If a CIP participant violated the non-solicitation covenant, the CIP required the

participant to repay any award payments under a claw-back provision (the claw-

back provision). A participant also could forfeit her rights to unvested awards

under the CIP if she voluntarily resigned her employment: “[I]f a Participant’s

employment is terminated by the Participant prior to a Payment, then the

Participant’s Unvested Awards shall be immediately forfeited as of the date of

such termination of employment” (the automatic-forfeiture provision).

      In 2009, Ally was affected by the downturn in the economy and accepted

bailout funds from the federal government.        Ally had to lay off several IT

employees, which “caused genuine concern amongst employees at [the IT

department in Lewisville] regarding Ally’s financial instability.”   On March 18,

2009, Gutierrez received her first award letter under the CIP (the 2009 award

letter). On April 9, 2009, Gutierrez signed and returned the 2009 award letter to


                                         3
accept the award, which would vest and be paid in four installments over a four-

year period:

   • 25% on December 31, 2009:                [to be paid] within 75 days of
     [December 31, 2009;]

   • 25% on December 31, 2010:                [to be paid] within 75 days of
     [December 31, 2010;]

   • 25% on December 31, 2011:                [to be paid] within 75 days of
     [December 31, 2011;]

   • 25% on December 31, 2012:                [to be paid] within 75 days of
     [December 31, 2012.]

The 2009 award letter, above Gutierrez’s signature line, specified: “I accept and

agree to become a participant in the [CIP] and will abide by the terms and

conditions of the [CIP] and this award letter.”

      Gutierrez accepted a second award under the CIP on February 24, 2010,

under which she would receive three, deferred payments with different vesting

and payment dates:

   • 1/3rd vests on February [illegible], 2011 and will be paid as soon as
     practical following February [illegible], 2013;

   • 1/3rd vests on February [illegible], 2012 and will be paid as soon as
     practical following February [illegible], 2013;

   • 1/3rd vests on February [illegible], 2013 and will be paid as soon as
     practical following February [illegible], 2014.

Gutierrez accepted a third award under the CIP on March 7, 2011, which

similarly provided for three, deferred payments:




                                          4
   • 1/3rd vests on February 14, 2012 and will be paid as soon as
     practical following February 14, 2014;

   • 1/3rd vests on February 14, 2013 and will be paid as soon as
     practical following February 14, 2014; and

   • 1/3rd vests on February 14, 2014 and will be paid as soon as
     practical following February 14, 2015.

Gutierrez received the first two payments under the 2009 award letter on

February 14, 2010, and February 13, 2011. Based on the vesting and payment

dates, Gutierrez apparently never received payments under the second and third

award letters.

                      B. GUTIERREZ’S EMPLOYMENT AT
                 HOMEWARD AND CONTACT WITH ALLY EMPLOYEES

      On October 14, 2011, Gutierrez left her employment with Ally and began

working for one of Ally’s competitors in the mortgage market—Homeward—as its

chief technology officer. Ally and Homeward “provide the same or substantially

similar mortgage services to customers in similar locations throughout the

country.”   At Homeward, Gutierrez assumed similar duties as those she

performed for Ally and was tasked with “driv[ing] all aspects of staff management,

including recruiting.” Gutierrez stated, however, that she was never asked to

recruit for Homeward.

      During the first few months of Gutierrez’s employment with Homeward,

approximately eight Ally employees left to work at Homeward. Five of those

employees—Danny Travis, Sherri Lee Bolling, Terry L. Webb, Aaron Weiss, and

Heath Mitchell—contacted Gutierrez to get information about possible job
                                        5
opportunities at Homeward.         Gutierrez forwarded to them relevant job

descriptions for openings at Homeward.          Gutierrez told each of the five

employees that she could not solicit or recruit them for employment with

Homeward. The other three employees—Kimberly Beasley, George Biddle, and

Todd Coffey—pursued employment with Homeward on their own and without

contacting Gutierrez based on Ally’s perceived financial instability.      Indeed,

Beasley began working with a recruiter to find a new job before Gutierrez left

Ally. All eight, however, left Ally to work for Homeward within approximately

seven months after Gutierrez left Ally.

      After Beasley left Ally to work for Homeward, she contacted Tyler Burkey,

who was still employed at Ally, “at [his] request about a potential job opportunity

at [Homeward].” Beasley told Burkey that Gutierrez “was throwing [Burkey’s]

name out quite a bit at Homeward, and [Gutierrez] had asked [Beasley] about

[Burkey’s] . . . skills.” Burkey sent Beasley his resume but ultimately decided not

to leave his job at Ally.

      Another Ally employee, Augustine Hidalgo, contacted Gutierrez after

Gutierrez left Ally to ask “how[’]s it going up there.” Gutierrez told Hidalgo that

there was a system-engineer position available at Homeward if he knew of

anyone looking for a job. After Hidalgo and Gutierrez discussed via email details

of the position, Gutierrez told Hidalgo to send his resume to her “[s]ince you just

formally just asked me and I did not recruit you.” Hidalgo forwarded his resume

to Gutierrez. It appears Hidalgo is still employed by Ally.

                                          6
      C. DEMAND LETTER AND THIRD PAYMENT UNDER 2009 AWARD LETTER

      On March 12, 2012, after Beasley and Weiss resigned from Ally to work for

Homeward, Ally sent Gutierrez a letter to “remind” her of the “terms and

conditions of [the CIP],” specifically the non-solicitation covenant.     The letter

stated that Gutierrez had “solicited at least four (4) Ally employees from our

Lewisville, TX facility,” 2 and warning that necessary “enforcement action” would

be taken. Ally based its allegations on the fact “[t]hat the employees were all out

of the same location, all went to work at the same new company, all under Ms.

Gutierrez’s leadership.” Ally further stated that any violation of any contractual

restrictive covenant (including the non-solicitation covenant) would result in the

forfeiture of “any Award that has not yet been paid” and require Gutierrez to

“repay any Award Payments made within 24-months of an enforcement action.”

Ally sent a copy of the letter to Homeward’s human-resources department.

Between March 17 and 27, 2012, Bolling, Webb, Travis, and Mitchell resigned

from Ally to work at Homeward.

      On April 22, 2012, Gutierrez received a third payment under the 2009

award letter. Gutierrez believed this payment under the CIP meant Ally had

concluded that she, in fact, had not violated the non-solicitation covenant:

      I assumed Ally had determined that I had not breached the non-
      solicitation covenant . . ., or that Ally did not intend to pursue me for

      2
      Ally’s corporate representative later stated that three of these employees
were Bolling, Webb, and Beasley. But Bolling and Webb did not resign until
March 17, 2012.

                                         7
      any violation of the [CIP] that Ally thought had occurred. At the time
      I received the Demand Letter and the final award payment under the
      [CIP], I was aware that Ally had waived the Non-Solicitation
      Provision for other employees in the past. I also knew that several
      former high-level Ally employees were already working at Homeward
      when I accepted employment there.

After Ally made its third payment to Gutierrez under the 2009 award letter, Biddle

and Coffey left Ally to work for Homeward.

                          D. THE UNDERLYING LAWSUIT

      On July 9, 2012, and after “several more employees voluntarily left,” Ally

filed suit against Homeward and Gutierrez, raising claims for unfair competition,

tortious interference with contractual relations, tortious interference with

employment relations, 3 and conspiracy. Ally also alleged Gutierrez breached the

CIP and misappropriated Ally’s trade secrets. Ally’s suit against Gutierrez was

the first time it had sought to enforce the CIP against a former employee.

      Homeward and Gutierrez moved for summary judgment and asserted that

they were entitled to judgment as a matter of law because the non-solicitation

covenant was unenforceable as overly broad and as unrelated to a business

interest of Ally.   They alternatively argued that even if the covenant was

enforceable, Ally waived its right to seek its enforcement.      Based on these

arguments, Homeward and Gutierrez contended that a finding that the covenant


      3
        Ally asserted Homeward and Gutierrez interfered with Ally’s business
relationship with Beasley, Weiss, Bolling, Webb, Travis, Mitchell, Biddle, and
Coffey by preventing Ally from “continuing its employment relationship” with
these employees.

                                        8
was unenforceable would dispose of all of Ally’s claims against both Homeward

and Gutierrez.

         Homeward and Gutierrez also separately addressed Ally’s tortious-

interference and conspiracy claims.       They asserted summary judgment was

appropriate as to Ally’s tortious-interference-with-contractual-relations claim

because the underlying contract was unenforceable and because Gutierrez could

not be found to have tortiously interfered with a contract to which she was a

party.      As to Ally’s tortious-interference-with-employment-relations claim,

Homeward and Gutierrez argued that there was no evidence of willful and

intentional interference and that any interference was legally justified. Homeward

and Gutierrez contended that Ally’s derivative conspiracy claims failed as a

matter of law because the underlying claims also failed.

         After extensive briefing, the trial court granted Homeward and Gutierrez’s

motion and rendered judgment in their favor “on all of [Ally’s] claims.” Ally timely

filed a notice of appeal and now argues in a single issue that the trial court erred

in granting the summary-judgment motion based on the arguments raised in

Homeward and Gutierrez’s motion. See Tex. R. App. P. 38.1(f); Malooly Bros.,

Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).           See generally Rogers v.

Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989) (“When a trial court’s order

granting summary judgment does not specify the ground or grounds relied on for

the ruling, summary judgment will be affirmed on appeal if any of the theories

advanced are meritorious.”).

                                          9
                           II. STANDARD OF REVIEW

                     A. TRADITIONAL OR MATTER-OF-LAW MOTION

      In their summary-judgment motion, Homeward and Gutierrez did not

specify whether they were urging a no-evidence motion or a matter-of-law

motion, and the trial court did not so specify in its order. See Tex. R. Civ. P.

166a(b), (c), (i).   On appeal, however, they solely argue the propriety of the

summary judgment under rule 166a(c).         Because their appellate argument

defends the summary judgment solely on the basis of rule 166a(c) and because

their arguments regarding their affirmative defenses of legal justification and

waiver could not have been raised in a no-evidence motion under rule 166a(i),

we will solely review the trial court’s grant of summary judgment under the

standards applicable to a traditional or matter-of-law motion under rule 166a(c).

See Tex. R. Civ. P. 166a(i) (stating party may move for no-evidence summary

judgment on “one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof at trial” (emphasis added)); Harrill

v. A.J.’s Wrecker Serv., Inc., 27 S.W.3d 191, 194 (Tex. App.—Dallas 2000, pet.

dism’d w.o.j.) (holding defendant improperly asserted no-evidence motion for

summary judgment on affirmative defense of preemption).

    B. GUTIERREZ AND HOMEWARD’S MOTION AS TO ALLY’S CAUSES OF ACTION

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). Likewise, we determine the enforceability of a

contract under a de-novo standard of review. See DaimlerChrysler Motors Co. v.

                                        10
Manuel, 362 S.W.3d 160, 170 (Tex. App.—Fort Worth 2012, no pet.). When, as

here, a trial court does not specify the grounds on which the judgment is based,

we will affirm the summary judgment if it is correct on any legal theory advanced

by the parties and supported by the evidence. See Tex. R. Civ. P. 166a(c); Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).          We consider the

evidence presented in the light most favorable to the nonmovant, crediting

evidence favorable to the nonmovant if reasonable jurors could, and disregarding

evidence contrary to the nonmovant unless reasonable jurors could not. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.

2009). We indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A

defendant who conclusively negates at least one essential element of a cause of

action is entitled to summary judgment on that claim.       Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c).

Once the defendant produces sufficient evidence to establish the right to

summary judgment, the burden shifts to the plaintiff to come forward with

competent controverting evidence that raises a genuine issue as to any material

fact. Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).

  C. GUTIERREZ AND HOMEWARD’S MOTION AS TO THEIR AFFIRMATIVE DEFENSES

      A defendant is entitled to summary judgment on an affirmative defense if

the defendant conclusively proves all the elements of the affirmative defense.

Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert.

                                       11
denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish

this, the defendant-movant must present summary judgment evidence that

conclusively establishes each element of the affirmative defense. See Chau v.

Riddle, 254 S.W.3d 453, 455 (Tex. 2008). If the defendant establishes that she

was entitled to judgment as a matter of law on an affirmative defense, the burden

to raise a genuine issue as to any material fact shifts to the plaintiff. See City of

Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).

                                 III. DISCUSSION

                        A. ENFORCEABILITY OF COVENANT

                          1. Choice-of-Law Provision 4

      Homeward and Gutierrez asserted in the trial court that Ally’s claims were

subject to summary dismissal because the non-solicitation covenant was

unenforceable under Texas law either as overly broad and unrelated to a

legitimate business interest of Ally or because Ally waived enforcement of the

covenant. Thus, Homeward and Gutierrez argued that Texas law applied to the

enforceability of the non-solicitation covenant despite the parties’ agreement that

the CIP would be governed by Michigan law. Ally responded that under Michigan

law, which expressly covered all terms of the CIP, the non-solicitation covenant


      4
       We emphasize that the issue in this case implicates a choice-of-law
provision and not a forum-selection provision. See generally In re AutoNation,
Inc., 228 S.W.3d 663, 669 (Tex. 2007) (orig. proceeding) (refusing to
“superimpose” choice-of-law analysis onto the law regarding forum-selection
clauses).

                                         12
was reasonable and, thus, enforceable.        We review de novo the trial court’s

determination of which state’s law governed the CIP.         See Torrington Co. v.

Stutzman, 46 S.W.3d 829, 848 (Tex. 2000); In re Chestnut Energy Partners, Inc.,

300 S.W.3d 386, 398 (Tex. App.—Dallas 2009, pet. denied).

      Before determining the choice-of-law question raised by Ally, we must first

determine if the applicable law of the two jurisdictions differ. If the result would

be the same under the law of either jurisdiction, there is no need to resolve the

choice-of-law problem. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 419,

421 (Tex. 1984); Fraud-Tech, Inc. v. Choicepoint, Inc., 102 S.W.3d 366, 378

(Tex. App.—Fort Worth 2003, pet. denied); accord Bailey v. Shell W. E&P, Inc.,

609 F.3d 710, 722–23 (5th Cir.), cert. denied, 131 S. Ct. 428 (2010). Other than

stating that the CIP’s non-solicitation covenant satisfies Michigan’s enforceability

requirements, Ally fails to argue how the Michigan test differs from the Texas

test. Indeed, both tests evaluate such a covenant’s enforceability by looking at

its reasonableness, which includes its duration, its geographical reach, the

employer’s business interest sought to be protected, and the scope of the barred

activity. 5 Compare Mich. Comp. Laws Ann. § 445.774a (West 2011), with Tex.


      5
        Ally argues in its reply brief that even if Texas law applies to determine the
enforceability of the non-solicitation covenant, it is not determined through the
prism of section 15.50. But Ally fails to state what enforceability test is applicable
in the absence of a section 15.50 analysis. Indeed, the purpose of section 15.50
was to return Texas law to the common-law standard for the enforceability of
covenants not to compete. Marsh USA Inc. v. Cook, 354 S.W.3d 764, 772 (Tex.
2011) (op. on reh’g). Further, the more persuasive case law applies section
15.50 to non-solicitation covenants as well as non-competition covenants. E.g.,
                                         13
Bus. & Com. Code Ann. § 15.50(a) (West 2011).            Further, both Texas and

Michigan recognize that a course of affirmative conduct can amount to a waiver

of a contractual provision. Compare Quality Prods. & Concepts Co. v. Nagel

Precision, Inc., 666 N.W.2d 251, 261 (Mich. 2003), with Ulico Cas. Co. v. Allied

Pilots Ass’n, 262 S.W.3d 773, 778 (Tex. 2008).           Therefore, we need not

determine which law applies because they are functionally the same.

                                    2. Waiver

      Ally next asserts that the trial court erred by implicitly concluding that it

waived its right to enforce the non-solicitation covenant. Waiver is an affirmative

defense; thus, Homeward and Gutierrez bore the burden to conclusively

establish all its elements.    See Tex. R. Civ. P. 94.       When the facts and

circumstances surrounding the alleged waiver are not disputed, waiver is a

question of law reviewable de novo. See Tenneco Inc. v. Enter. Prods. Co., 925

S.W.2d 640, 643–44 (Tex. 1996); Palladian Bldg. Co. v. Nortex Found. Designs,

Inc., 165 S.W.3d 430, 434 (Tex. App.—Fort Worth 2005, no pet.).

      Homeward and Gutierrez were entitled to summary judgment on their

affirmative defense of waiver if they proffered evidence conclusively establishing

(1) an existing right, benefit, or advantage held by a party, (2) the party’s actual

knowledge of its existence, and (3) the party’s actual intent to relinquish, or

Rimkus Consulting Grp., Inc. v. Cammarata, 255 F.R.D. 417, 438–39 (S.D. Tex.
2008); Marsh, 354 S.W.3d at 768; York v. Hair Club for Men, L.L.C., No. 01-09-
00024-CV, 2009 WL 1840813, at *4 (Tex. App.—Houston [14th Dist.] June 25,
2009, no pet.) (mem. op.).

                                        14
intentional conduct inconsistent with, the right. Ulico, 262 S.W.3d at 778; see

also Sefzik v. City of McKinney, 198 S.W.3d 884, 895 (Tex. App.—Dallas 2006,

no pet.) (applying summary-judgment standard to affirmative defense of waiver).

Regarding this third element, “[w]aiver is largely a matter of intent, and for implied

waiver to be found through a party’s actions, intent must be clearly demonstrated

by the surrounding facts and circumstances.” Jernigan v. Langley, 111 S.W.3d

153, 156 (Tex. 2003). Ally focuses on this element in attacking the trial court’s

summary judgment.       Homeward and Gutierrez assert that the third payment

under the 2009 award letter was an intentional relinquishment of, or intentional

conduct inconsistent with, Ally’s intent to enforce the non-solicitation covenant.

       The undisputed evidence before the trial court showed that Gutierrez left

her employment with Ally in October 2011. Ally notified Gutierrez in March 2012

that it believed Gutierrez violated the terms of the CIP by soliciting Ally

employees for employment with Homeward. In this letter, Ally raised the terms of

the CIP, which contained both the claw-back provision for violations of the non-

solicitation covenant and the automatic-forfeiture provision upon voluntary

resignation. In April 2012, Ally paid Gutierrez a third payment under the 2009

award letter. Ally was aware at that time that Gutierrez had voluntarily resigned

before the third payment under the 2009 award letter had vested and that

Gutierrez was allegedly violating the non-solicitation covenant contained in the

CIP.



                                         15
      Therefore, Ally represented to Gutierrez that although it believed she had

violated the CIP and had forfeited her rights to all unvested payments by

voluntarily resigning, it was awarding her incentive compensation as provided by

the CIP. Ally’s action in paying Gutierrez a third payment under the 2009 award

letter was inconsistent with its previously stated intention to enforce the non-

solicitation covenant.   Further, Gutierrez was aware that Ally repeatedly had

declined to enforce the non-solicitation covenant against other Ally employees

who resigned.      Ally’s intentional conduct, inconsistent with its attempted

enforcement of the CIP, waived its right to seek enforcement of the non-

solicitation covenant. 6 See, e.g., Riley v. Meriwether, 780 S.W.2d 919, 922 (Tex.

App.—El Paso 1989, writ denied) (“Waiver can be inferred from intentional

conduct which is inconsistent with claiming a known right.”); KMI Cont’l Offshore

Prod. Co. v. ACF Petroleum Co., 746 S.W.2d 238, 243 (Tex. App.—Houston [1st

Dist.] 1987, writ denied) (“[A] waiver can occur if a party knowingly possessing

the right acts in such manner that the party misleads the opposing party into

believing that a waiver has occurred.”); Alford, Meroney & Co. v. Rowe, 619

S.W.2d 210, 213 (Tex. Civ. App.—Amarillo 1981, writ ref’d n.r.e.) (finding waiver


      6
        Because waiver can be based either on the party’s intentional action
inconsistent with the right sought to be enforced or on the party’s actual intent to
relinquish the right, we do not agree with Ally that evidence of inconsistent action
without evidence of actual intent dooms a waiver argument. See Tenneco, 925
S.W.2d at 643. It appears Ally is relying on cases interpreting estoppel in the
context of a breach of contract, which is distinct from waiver. See Ulico, 262
S.W.3d at 778.

                                        16
“where one dispenses with the performance of something which he has a right to

exact, and occurs where one in possession of any right, whether conferred by

law or by contract, with full knowledge of the material facts, does or forbears to

do something, the doing of which or the failure or forbearance to do which is

inconsistent with the right or his intention to rely upon it”); cf. Brannan Paving GP,

LLC v. Pavement Markings, Inc., Nos. 13-11-00005-CV, 13-11-00013-CV, 2013

WL 3832717, at *6 (Tex. App.—Corpus Christi July 25, 2013, pet. filed) (finding

no waiver where no evidence party seeking to enforce terms of subcontract “was

aware of [opponent’s] failure to comply with the subcontract”).

      Homeward and Gutierrez conclusively established through undisputed

evidence that Ally waived its right to seek enforcement of the non-solicitation

covenant based on its inconsistent action in issuing the third payment to

Gutierrez under the 2009 award letter after Gutierrez forfeited the unvested

award upon her resignation from Ally and after Ally notified Gutierrez that she

had breached the non-solicitation covenant. See, e.g., Bekins Moving & Storage

Co. v. Williams, 947 S.W.2d 568, 576 (Tex. App.—Texarkana 1997, no pet.).

Thus, the burden to raise a genuine issue as to any material fact regarding

waiver shifts to Ally. See Clear Creek Basin, 589 S.W.2d at 678–79.               Ally

attempts to raise a genuine issue as to a material fact regarding waiver by

asserting that the third payment under the 2009 award letter alone cannot

establish waiver because “payment of the funds due was nothing more than a

ministerial act by Ally” under the terms of the CIP. In short, Ally contends that

                                         17
because it was contractually obligated to pay Gutierrez under the CIP, it was

required to pay her even though it had expressed to Gutierrez that she was in

violation of the CIP. This argument is unpersuasive.

      As laid out above, Gutierrez’s resignation in October 2011 automatically

forfeited her right to any unvested payments, which included Ally’s third payment

to Gutierrez. Ally’s third payment to Gutierrez under the 2009 award letter after it

expressed its intention to enforce the non-solicitation covenant and after

Gutierrez voluntarily resigned was inconsistent with the terms of the CIP and was

more than a ministerial act.    See Tenneco, 925 S.W.2d at 643–44 (holding

complaining parties waived right to enforce contract when they knew of

opponent’s breach and “elected not to enforce any [contractual] rights” for three

years). Ally has failed to raise a genuine issue of material fact in response to

these conclusively established facts. Therefore, the trial court correctly granted

summary judgment in Homeward and Gutierrez’s favor on Ally’s claims based on

the affirmative defense of waiver.

                                3. Unreasonable

      Even if Ally had not waived its right to seek enforcement of the CIP based

on its intentional actions inconsistent with enforcement of the CIP, the non-

solicitation covenant was unreasonable in scope and, thus, unenforceable. 7 An

      7
        Before addressing reasonableness of a non-solicitation covenant, it must
first be determined that the covenant is part of an otherwise valid agreement and
that the covenant is ancillary to that agreement. See Marsh, 354 S.W.3d at 773–
75. No party argues that these two requirements were not met.

                                        18
enforceable non-solicitation covenant will contain reasonable limitations as to

time, geographical area, and scope of activity to be restrained. Tex. Bus. & Com.

Code Ann. § 15.50(a). Further, a non-solicitation covenant is unreasonable if it is

greater than required for the protection of the person for whose benefit the

restraint is imposed or imposes undue hardship upon the person restricted. Zep

Mfg. Co. v. Harthcock, 824 S.W.2d 654, 660 (Tex. App.—Dallas 1992, no writ).

      Here, the non-solicitation covenant barred Gutierrez, for a two-year period,

from soliciting or employing (1) all Ally employees who work for Ally or any of

Ally’s subsidiaries and (2) all former Ally employees who worked for Ally or any of

Ally’s subsidiaries between August 14 and October 14, 2011. While it might be

considered reasonable to limit Gutierrez’s solicitation of Ally’s employees located

in the IT department, which was where Gutierrez worked, the non-solicitation

covenant in the CIP was not so limited. Gutierrez was barred for two years from

soliciting or employing both all current Ally employees and all former Ally

employees who were so employed in late 2011.           The undisputed summary-

judgment evidence showed that in 2012, Ally had approximately 14,000

employees located across the nation, with some located in foreign countries.

These 14,000 employees were included in the scope of Ally’s non-solicitation

covenant.   This covenant goes beyond what was necessary to protect Ally’s

goodwill or other business interest of Ally. See Peat Marwick Main & Co. v.

Haass, 818 S.W.2d 381, 386–88 (Tex. 1991) (holding covenant not to compete

that included “any of [the employer’s] clients worldwide, not just those with whom

                                        19
Haas had some actual contact,” unenforceable as overly broad and oppressive);

McNeilus Cos., Inc. v. Sams, 971 S.W.2d 507, 510–11 (Tex. App.—Dallas 1997,

no pet.) (holding covenant not to compete “in any capacity” for employer’s

competitors unenforceable as unreasonably broad in scope); cf. Arthur J.

Gallagher & Co. v. Babcock, 703 F.3d 284, 289–90 (5th Cir. 2012) (holding non-

compete covenant       enforceable    because    covenant    limited    to   “accounts

[employees] worked while employed”); Am. Express Fin. Advisors, Inc. v. Scott,

955 F. Supp. 688, 692–93 (N.D. Tex. 1996) (holding non-compete covenant

enforceable under section 15.50 because covenant specified one-year duration

and only limited defendant from contacting customers he served while working

for plaintiff). Thus, the trial court correctly granted summary judgment on

Gutierrez and Homeward’s argument that the covenant was not enforceable.

             4. Tortious Interference with Employment Relations

      To the extent Ally’s claim raising tortious interference with its employment

relations does not arise solely from Gutierrez’s obligations under the CIP as

Ally’s other claims do, we separately address this claim. 8            Homeward and

Gutierrez argued in the trial court that they conclusively negated that there was


      8
        Ally does not clearly argue that this tort is independent of Gutierrez’s non-
solicitation covenant with Ally and, in fact, asserts that Gutierrez’s actions were
tortious because she “deliberately tried to circumvent her Agreement with Ally.”
To the extent Ally’s claim likewise rests on the unenforceable covenants in the
CIP, it was appropriately dismissed as discussed above. We merely address this
claim in an abundance of caution and do not hold that Ally’s claim is a claim
separate from its other contractually based claims.

                                         20
any interference and also raised the affirmative defense of legal justification in

response to this claim. See Kipp v. LTV Aerospace & Defense, 838 F. Supp.

289, 295 (N.D. Tex. 1993) (recognizing defense of legal justification to claim for

tortious interference with employment relations); see also Prudential Ins. Co. of

Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77–78 (Tex. 2000) (applying

affirmative defense of justification to claim for tortious interference with an

existing contract).

      First, Homeward was correct that it could not have interfered with Ally’s

continued employment of Beasley, Weiss, Bolling, Webb, Travis, Mitchell, Biddle,

or Coffey: “[A] claim of tortious interference cannot be premised merely on the

hiring of an at-will employee, without more.” Lazer Spot, Inc. v. Hiring Partners,

Inc., 387 S.W.3d 40, 53 (Tex. App.—Texarkana 2012, pet. denied).              It was

undisputed that Homeward did not ask Gutierrez to recruit Ally employees. To

hold Homeward liable for tortious interference for merely hiring Ally employees

would “grind to a halt . . . the economy in the State of Texas.” Id. at 53 n.23.

      Second, it was undisputed that Beasley, Biddle, and Coffey never spoke

with Gutierrez before leaving Ally to work for Homeward.            Thus, Gutierrez

conclusively negated an essential element of tortious interference, namely, that

Gutierrez actually caused Beasley, Biddle, or Coffey to leave their employment

with Ally. See Diesel Injection Sales & Servs., Inc. v. Renfro, 656 S.W.2d 568,

573 (Tex. App.—Corpus Christi 1983, writ ref’d n.r.e); Custom Drapery Co. v.



                                         21
Hardwick, 531 S.W.2d 160, 166 (Tex. Civ. App.—Houston [1st Dist.] 1975, no

writ).

         Finally,   Gutierrez   conclusively   proved   the   affirmative   defense   of

justification as to Weiss, Bolling, Webb, Travis, and Mitchell. Because the non-

solicitation covenant was either waived or unenforceable as overly broad, nothing

prevented Gutierrez from lawfully contacting these employees regarding possible

employment at Homeward. See Lazer Spot, 387 S.W.3d at 53 (holding mere

hiring of another’s at-will employee legally insufficient to prove tortious

interference); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 691 (Tex. 1989)

(stating elements of affirmative defense). See generally Restatement (Second)

of Torts § 768(2) cmt. i (1979) (explaining contracts terminable at will are not

breached by voluntary termination; therefore, a competitor “may offer better

contract terms, as by offering an employee of the plaintiff more money to work for

him . . . and he may make use of persuasion or other suitable means, all without

liability”). Gutierrez conclusively established that she had a bona fide right to

contact Weiss, Bolling, Webb, Travis, and Mitchell about employment with

Homeward. Ally failed to raise a genuine issue as to any material fact regarding

Gutierrez’s affirmative defense once the burden shifted; thus, the trial court

correctly granted summary judgment on this claim.




                                           22
                   B. SCOPE AND TIMING OF SUMMARY JUDGMENT

                             1. Inclusion of All Claims

      Ally asserts that the trial court erred by granting summary judgment on all

of its claims because Homeward and Gutierrez failed to move for judgment as a

matter of law on Ally’s claim for unfair competition against Homeward and

Gutierrez and on its claims for misappropriation of trade secrets against

Gutierrez.     In their motion for summary judgment, Homeward and Gutierrez

argued that a conclusion that the non-solicitation covenant was not enforceable

“disposes of all of Ally’s claims . . . [b]ecause all of Ally’s claims against Gutierrez

and Homeward are based on Gutierrez’s alleged violation of the non-solicitation

[covenant].”

      A trial court cannot grant summary judgment on a cause of action not

addressed in the summary-judgment motion. Johnson v. Brewer & Pritchard,

P.C., 73 S.W.3d 193, 204 (Tex. 2002); Chessher v. Sw. Bell Tel. Co., 658

S.W.2d 563, 564 (Tex. 1983). See generally Tex. R. Civ. P. 166a(c). But Ally’s

unfair-competition and misappropriation-of-trade-secrets claims were based on

Gutierrez’s actions that allegedly were in breach of the CIP, specifically the non-

solicitation covenant. Further, any damages Ally suffered based on Gutierrez’s

post-resignation actions would be derived from the obligations in the CIP and

Gutierrez’s alleged breach of those obligations. 9 As such, Ally’s claims sound

      9
       In pleading each claim, Ally incorporated the facts regarding Gutierrez’s
actions that Ally alleged were in violation of the non-solicitation covenant.

                                          23
only in contract. See Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494–95

(Tex. 1991); Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986).

Indeed, both unfair-competition and misappropriation-of-trade-secrets claims

require evidence that “the trade secret was acquired through a breach of a

confidential relationship,” which could not occur in this case apart from

Gutierrez’s alleged breach of a contractual provision. Parker Barber & Beauty

Supply, Inc. v. The Wella Corp., No. 03-04-00623-CV, 2006 WL 2918571, at *14

(Tex. App.—Austin Oct. 11, 2006, no pet.) (mem. op.). Because Ally’s claims are

contractual, the trial court’s implicit conclusion that Ally waived its right to enforce

the non-solicitation covenant or, alternatively, that the non-solicitation covenant

was unenforceable because it was overly broad in scope, necessarily disposed

of Ally’s contractual claims for unfair competition and misappropriation of trade

secrets, as argued by Homeward and Gutierrez in their summary-judgment

motion. The trial court did not err by granting summary judgment on all of Ally’s

claims.

                        2. Need for Additional Discovery

      Ally argues that the summary judgment was premature because the trial

court did not allow Ally to conduct additional discovery regarding Gutierrez’s

alleged spoliation of evidence and because it was not able to take the deposition

of Homeward’s representative. Ally points out that after it sent the demand letter

to Gutierrez, Gutierrez “deleted several emails . . . that she had received from

former Ally employees” after changing her email address to prevent “Ally

                                          24
employees from contacting her about employment with Homeward.” Gutierrez

was able to recover “almost all of the emails” and produced them to Ally during

discovery.    Based on Gutierrez’s actions, Ally asserts that it is entitled to a

spoliation presumption, which “prevents a granting of summary judgment.”

         First, Ally’s spoliation argument applied solely to Gutierrez’s alleged

violation of the non-solicitation covenant and the fact that the spoliation

presumption raised a genuine issue of material fact as to whether she violated

the covenant. Because we have determined that the non-solicitation covenant

was unenforceable based on Ally’s waiver and, alternatively, based on the

overbroad scope of the covenant, Gutierrez’s violation of the covenant is not an

issue.     The deleted emails did not affect waiver or enforceability; thus, the

summary judgment was justified on grounds unaffected by the allegedly spoliated

evidence, which removes it from the purview of the spoliation presumption. See

Mangham v. YMCA of Austin, Tex.-Hays Cmtys., 408 S.W.3d 923, 930–31 (Tex.

App.—Austin 2013, no pet.) (“[W]e are not inclined to presume the trial court

considered and rejected a spoliation argument in every grant of summary

judgment, as this would ignore the possibility that the summary judgment was

justified on grounds or in reliance on elements unaffected by the allegedly

spoliated evidence.”); see also Ham v. Equity Residential Prop. Mgmt. Servs.

Corp., 315 S.W.3d 627, 634–35 (Tex. App.—Dallas 2010, pet. denied) (affirming

summary judgment because spoliated evidence was cumulative and not relevant

to issue upon which summary judgment granted).

                                        25
      Second, Ally failed to properly request additional time for discovery. See

Tex. R. Civ. P. 166a(g). In its response to Homeward and Gutierrez’s motion for

summary judgment, Ally asserted that it “has not been permitted to take

Homeward’s deposition” but averred that it had “filed for review of objections to

Homeward’s deposition which is currently pending review by the [trial] [c]ourt.”

The clerk’s record does not contain these objections. See Tex. R. App. P. 34.5.

Be that as it may, Ally was required to file either an affidavit explaining the need

for further discovery or a verified motion for continuance. See Tenneco, 925

S.W.2d at 647; see also Elizondo v. Krist, 56 Tex. Sup. Ct. J. 1074, 2013 WL

4608558, at *7 & n.27 (Aug. 30, 2013). Neither Ally’s objections nor its reference

to the lack of discovery in its summary-judgment response are sufficient to render

the summary judgment premature based on Ally’s lack of “affidavit facts essential

to justify [its] opposition” to Homeward and Gutierrez’s summary judgment. Tex.

R. Civ. P. 166a(g).

                                IV. CONCLUSION

      Because Homeward and Gutierrez conclusively established under Texas

law that Ally waived enforcement of the non-solicitation covenant and because

Ally failed to raise a genuine issue as to any material fact regarding waiver, the

trial court correctly granted summary judgment on Ally’s claims seeking a remedy

for Gutierrez’s actions that allegedly violated the non-solicitation covenant.

Alternatively, because Gutierrez and Homeward conclusively negated an

essential element of Ally’s causes of action by proffering undisputed evidence

                                        26
that the non-solicitation covenant was unenforceable as overly broad in scope,

the trial court correctly granted summary judgment. We overrule Ally’s issue and

affirm the trial court’s judgment.

                                                 /s/ Lee Gabriel

                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.

DELIVERED: January 23, 2014




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