Opinion filed March 31, 2011




                                                          In The


    Eleventh Court of Appeals
                                                       __________

                                                No. 11-10-00170-CV
                                                    __________

      TSBA, INC. D/B/A THE SURETY BONDING COMPANY, Appellant

                                                               V.

             PERKINS INSURANCE AGENCIES, LLP, LEROY PERKINS,
                  MARK PERKINS, AND SBMP, INC., Appellees


                                  On Appeal from the County Court at Law
                                          Taylor County, Texas
                                       Trial Court Cause No. 21,509


                                    MEMORANDUM OPINION
         TSBA, Inc. d/b/a The Surety Bonding Company filed suit against Ron Caspell, Perkins
Insurance Agencies, LLP, Leroy Perkins, Mark Perkins, and SBMP, Inc.1 TSBA alleged various
causes of action arising from an employment agreement Caspell signed while working for
TSBA. The defendants, excluding Caspell, filed a no-evidence motion for summary judgment.2
The trial court granted the defendants’ motion, entered a take-nothing judgment, and severed
TSBA’s claims against them. We affirm.

         1
        We note that throughout the record the trial court is referred to as County Court at Law No. 1. Pursuant to TEX. GOV’T
CODE ANN. § 25.2231 (Vernon 2004), we will refer to the trial court as County Court at Law.
         2
          Unless otherwise stated, we will refer to the moving parties collectively as the defendants.
                                       I. Background Facts
        In August 2001, Jeannie Hamilton and Caspell entered into a partnership and started The
Surety Bonding Agency. They incorporated their business in 2002. In August 2004, Hamilton
purchased substantially all of TSBA’s stock. TSBA then entered into a written employment
agreement with Caspell that was referred to as a Producer’s Agreement. The agreement was for
a term of four years. In relevant part, it provided:
        Covenants of Confidentiality and Non-Piracy: The parties hereto agree as
        follows:
        1. All information, papers, contracts, methods of doing business and other client-
            sensitive matters are deemed to be proprietary information and materials
            which shall at all times remain the property of TSBA. Caspell agrees not to
            reveal any such information to any person or entity prior to or during the term
            of this Agreement, or after the termination of this Agreement for any reason.

        2. During the term of this Agreement, Caspell agrees not to engage, directly or
           indirectly, in any business activity that would, in any way or manner, be in
           competition with the business of TSBA, without the written consent of TSBA
           first obtained.

        3. During the term of this Agreement and for a period of two (2) years following
           termination hereof, Caspell agrees not to compete with TSBA by utilizing any
           trade secrets, methods of operation, business strategies or proprietary
           information gained as a result of his affiliation with TSBA.

        4. The parties agree that any breach or threatened breach of any of the covenants
           contained herein would cause immediate, material and irreparable harm to
           TSBA. TSBA shall have all of the rights and remedies available under law
           including, but not limited to, injunctive relief and monetary damages ordered
           by a judgment or decree of a court of competent jurisdiction.

        Caspell resigned from TSBA on July 22, 2008. He then spoke with the Perkins Agencies
about working for them.       In August, Hamilton notified Leroy Perkins that Caspell had a
noncompete agreement with TSBA.           They also discussed Bulldog Constructors, Inc., and
Hamilton informed him that Bulldog was a TSBA client. No other clients were discussed.
        TSBA continued to do business with Bulldog. In January 2009, Hamilton received a call
from Bulldog concerning a rebid for the City of Clyde stadium project. Hamilton had not
previously heard of this project.      She investigated and discovered that Bulldog originally
contacted Caspell to obtain a bid bond. She also discovered that the defendants had sent Bulldog
financial records to United Fire Group to obtain underwriting authority. TSBA then filed this
suit.
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                                             II. Issues
       TSBA challenges the trial court’s order granting the defendants’ no-evidence motion for
summary judgment with fourteen issues, contending primarily that there are unresolved fact
issues on each of its causes of action. Issues One through Four concern TSBA’s allegation that
the defendants have improperly used TSBA’s trade secrets. Issue Five alleges that Caspell’s
contract with TSBA is enforceable, and Issue Thirteen alleges that there is an existing contract
between TSBA and Caspell. Issues Six through Ten concern TSBA’s tortious interference
claims. In Issue Eleven, TSBA alleges that it produced evidence of damage. TSBA contends in
Issue Twelve that summary judgment on its joint venture claim was inappropriate. Finally, in
Issue Fourteen, TSBA alleges that there is a fact question on its conspiracy claim.
                                     III. Standard of Review
       No-evidence motions for summary judgment are reviewed under the same standard as a
directed verdict.   King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003).
Accordingly, we review the evidence in the light most favorable to the nonmovant and disregard
all contrary evidence and inferences. Id. A trial court must grant a proper no-evidence motion
for summary judgment unless the nonmovant produces more than a scintilla of probative
evidence to raise a genuine issue of material fact on the challenged element of the claim. TEX. R.
CIV. P. 166a(i).
            IV. Misappropriation of Trade Secrets or Other Confidential Information
       The defendants note that the Producer’s Agreement contains no geographic restriction
and that they are not parties to it. TSBA concedes that the noncompete portion of the agreement
is unenforceable. But, it argues that the remainder of the agreement, including the covenants to
protect trade secrets and other confidential information, is enforceable and that the defendants
are liable for Caspell’s actions in violation of that agreement because they misappropriated
protected information. The defendants argue that there was no evidence that they used or
appropriated any document, proprietary information, or other client-sensitive information.
       TSBA’s brief contains a comprehensive discussion of Caspell’s attempts to do business
with TSBA customers. TSBA acknowledges that there was no evidence that Caspell used a
TSBA customer list, but it contends that he knew the customers because of his work with TSBA.
Because the noncompete portion of the Producer’s Agreement is unenforceable, the mere fact
that Caspell spoke to former customers is no evidence that the defendants misappropriated any
trade secrets or other confidential information.
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         TSBA also claims that the defendants improperly used information from Bulldog. TSBA
provided evidence that Caspell forwarded Bulldog financial statements to the United Fire Group
in connection with a bid bond request.        At oral argument, TSBA contended that this was
proprietary information because Caspell acquired it from Bulldog while he was working for
TSBA. Bulldog’s financial data belongs to Bulldog. If it wished to provide Caspell or the
defendants with a copy of its financial statements, that was Bulldog’s prerogative. The mere fact
that TSBA also had copies of these statements in its files does not mean that they were TSBA’s
confidential information. The question is: Where did the statements that Caspell forwarded
come from? Because the defendants argued that there was no evidence they misappropriated any
protected information, it was incumbent upon TSBA to produce evidence that these statements
came from its files and not from the client. Because it did not do so, the trial court did not err by
granting summary judgment on TSBA’s claim for misappropriation of trade secrets and other
confidential information. Issues One through Four are overruled.
                                  V. Interference with Contract
         TSBA next argues that its Producer’s Agreement is enforceable and that the defendants
interfered with it. To establish tortious interference with an existing contract, TSBA must show
(1) the existence of a contract subject to interference, (2) a willful and intentional act of
interference, (3) that was a proximate cause of the plaintiff's damages, and (4) actual damage or
loss. Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203, 210 (Tex. 1996). Ordinarily, merely
inducing a contract obligor to do what it has a right to do under the contract is not actionable
interference. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).
         If we assume that the Producer’s Agreement, sans its noncompete provision, is
enforceable, then TSBA was required to produce evidence of willful and intentional interference
with that contract by the defendants. In support of this claim, TSBA contends: ―No one twisted
the Appellees’ arms to keep these astute business men and organizations from making an inquiry
about the terms of the agreement and the customers of the Appellate [sic]. Mr. Perkins had the
audacity to write a letter inquiring who the Appellant’s and Mr. Caspell’s customers were.‖
         The audacious letter to which TSBA refers was a letter from Leroy Perkins to Hamilton
written on June 10, 2009, almost a year after Caspell left TSBA. In that letter, Leroy Perkins
wrote:
                To avoid any conflict between The Surety Bonding Agency and Ron
         Caspell, could you please provide a list of Accounts that Ron worked on while he
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       was with your Agency? We want to monitor this situation and avoid any
       disagreement and/or injury to either of you during the remaining time that the
       Non-Compete Agreement is in effect.

Hamilton responded on June 16:

       As I recall, you and I had two or three conversations regarding Ron’s Non
       Compete, Non Piracy and Confidentiality Agreement prior to Ron becoming your
       agent. Bulldog Constructors was specifically discussed and yet Ron issued two
       (2) bonds this year for this account.

              Ron, having been a prior partner to TSBA, Inc., is very well aware of the
       business clients of this office. It is my opinion and Nelson Quinn’s opinion that
       any information you want about our accounts, you should obtain from Ron
       Caspell.

This letter simply does not establish any improper action by the defendants. Indeed, by refusing
to answer Perkins’s question but, instead, directing him to get this information from Caspell,
Hamilton invited the type of action for which she now complains.
       TSBA failed to produce any evidence that the defendants took any willful and intentional
action to interfere with the Producer’s Agreement. The trial court, therefore, did not err by
granting the defendants’ motion for summary judgment on TSBA’s tortious interference with
contract claim. Issues Five, Six, Seven, and Thirteen are overruled.
                            VI. Interference with Business Relations
       To establish a cause of action for interference with business relations, TSBA was
required to offer evidence that (1) there was a reasonable probability that it would have entered
into a contractual relationship, (2) an independently tortious or unlawful act by the defendants
prevented the relationship from occurring, (3) the act was done with a conscious desire to
prevent the relationship from occurring or with knowledge that the interference was certain or
substantially certain to occur as a result of their conduct, and (4) TSBA suffered actual harm or
damage as a result of the interference. See Finlan v. Dallas Indep. Sch. Dist., 90 S.W.3d 395,
412 (Tex. App.—Eastland 2002, pet. denied). TSBA’s brief does not address any of these
elements nor did its summary judgment proof identify any prospective business relationship –
its evidence related solely to existing TSBA clients. If TSBA’s contention is that it would have
done more business with these customers, it failed to offer any evidence of an independent
tortious or unlawful act by the defendants that prevented it from doing so. The trial court did


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not, therefore, err by granting summary judgment on TSBA’s interference with business relations
claim.
         TSBA’s brief does, however, discuss its causes of action for unjust enrichment. TSBA
acknowledges that, to prevail on a cause of action for unjust enrichment, it must produce
evidence that the defendants obtained money from TSBA by fraud, duress, or taking an undue
advantage. Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992).
TSBA’s brief does not direct us to any evidence of fraud, duress, or taking an undue advantage
by the defendants, and we saw none in our review of the record. Issues Eight, Nine, Ten, and
Eleven are overruled.
                                         VII. Joint Venture
         TSBA next argues that the defendants and Caspell were involved in a joint venture or
enterprise. That, alone, does not establish a cause of action. To the extent TSBA included this
claim to hold the defendants responsible for Caspell’s actions, we have considered that evidence
as set forth above. Issue Twelve is overruled.
                                          VIII. Conspiracy
         TSBA’s final claim is that an actionable conspiracy existed between Caspell and the
defendants. TSBA contends that the defendants could conspire ―by stealing or misappropriating
trade secrets, tortious interference with contracts, and/or business relations.‖ Because TSBA
failed to offer any evidence that the defendants did so, the trial court did not err by granting
summary judgment on TSBA’s conspiracy claim. Issue Fourteen is overruled.
                                           IX. Conclusion
         The judgment of the trial court is affirmed.


                                                        RICK STRANGE
                                                        JUSTICE
March 31, 2011
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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