Opinion issued August 5, 2014




                                   In The

                            Court of Appeals
                                  For The

                        First District of Texas
                           ————————————
                            NO. 01-13-00887-CV
                          ———————————
             MORRELL MASONRY SUPPLY, INC., Appellant
                                     V.
                          JESUS PEREZ, Appellee


                  On Appeal from the 270th District Court
                           Harris County, Texas
                     Trial Court Case No. 2012-46283


                        MEMORANDUM OPINION

      Appellant, Morrell Masonry Supply, Inc. (“Morrell Masonry”), sued

appellee, Jesus Perez, for his alleged breach of the parties’ “Covenant Not to

Compete and Confidentiality Agreement.” The trial court granted Perez’s motion

for summary judgment and issued a take-nothing judgment against Morrell
Masonry. In its sole issue on appeal, Morrell Masonry argues that the trial court

erred in granting summary judgment in Perez’s favor.

      We affirm.

                                   Background

      Perez became an employee of Morrell Masonry in the fall of 2007. Morrell

Masonry is in the business of supplying stucco and other masonry materials. In

October 2008, Perez signed the “Covenant Not to Compete and Confidentiality

Agreement” (“the Agreement”) in exchange for participating in Morrell Masonry’s

employee profit sharing program. The Agreement provided:

      In consideration for participating in [Morrell Masonry’s]
      (“employer”) profit sharing program employee promises to abide by
      the following terms and conditions.
             Employee recognizes and acknowledges that as a participant in
      employer’s profit sharing program employees will have access to all
      of employer’s corporate records. . . . [E]mployee specifically agrees
      that he or she will not at any time, in any fashion, form, or manner,
      either directly or indirectly, divulge, disclose, or communicate to any
      person, firm, or corporation in any manner whatsoever any
      information . . . concerning any matters affecting or relating to the
      business of employer. . . .
             [E]mployee specifically agrees that for a period of one year
      following the termination of employment, however caused, the
      employee will not within the geographical limits of the State of Texas
      directly or indirectly for himself, or on behalf of, or as an employee of
      any other merchant, firm, association, corporation, or other entity
      engaged in or be employed by any stucco and/or E.I.F.S. supplier
      business or any other business that is competitive with employer.
             Employee further agrees that in the event of violation of this
      agreement by employee, employee will pay as liquidated damages to
      the employer the sum of $100.00 per day, for each day or portion of a
      day that the employee continues such breach of the agreement. . . .


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      Morrell Masonry subsequently terminated Perez’s employment in August

2011, and Perez obtained a job working for Acoustical Material Supply Co.

(“Acoustical”). Morrell Masonry asserted that Acoustical was a competitor of

Morrell Masonry’s.     However, Perez argued that Acoustical primarily sells

acoustical and dry wall products, that less than two percent of its business in 2011

consisted of selling stucco products similar to those sold by Morrell Masonry, and

that Acoustical’s stock of stucco products was depleted by the end of 2012. Thus,

Perez argued that Acoustical was not competing with Morrell Masonry.

      Morrell Masonry filed suit against Perez, alleging that Perez executed the

Agreement in 2008 in exchange for participating in the profit sharing program.

Morrell Masonry further alleged that the limitations “placed on [Perez] by the

covenant were reasonable” and “imposed no greater restriction than necessary to

protect [its] business interests.”   Morrell Masonry asserted that it terminated

Perez’s employment in 2011. Morrell Masonry’s petition asserted a cause of

action for “Breach of [the] Covenant Not to Compete.” It alleged that, following

his termination, Perez “breached the covenant not to compete by obtaining

employment with a business that competes with” Morrell Masonry, and it sought

liquidated damages in the amount of $100 per day that Perez worked in violation

of the Agreement’s covenant not to compete.




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      Morrell Masonry then moved for summary judgment, asking the trial court

for “final summary judgment on its cause of action” against Perez. It alleged that

Perez breached the Agreement by obtaining employment with Acoustical, a

business that competes with Morrell Masonry.

      Perez likewise moved for final summary judgment, asserting the defense of

collateral estoppel based on a previous lawsuit between Morrell Masonry and a

former colleague of Perez’s who had signed an identical agreement that a Harris

County district court had determined was overbroad and unenforceable. Perez also

argued that, as a matter of law, the covenant not to compete was unenforceable

because the “State-wide geographical restriction” was “overbroad,” because of the

“the absence of consideration for Perez’ execution of the Non-Compete,” and

because Perez did not work for a “competitor” of Morrell Masonry’s.

      Morrell Masonry responded to this motion, specifically arguing that the

covenant not to compete was not overbroad and that it was supported by adequate

consideration.   It also addressed Perez’s claim that Acoustical was not a

competitor.

      The trial court denied Morrell Masonry’s motion for summary judgment and

granted Perez’s motion for summary judgment against Morrell Masonry, stating

that its order “represent[ed] a final, take nothing judgment on all of Morrell

Masonry Supplies, Inc.’s claims.” Morrell Masonry subsequently moved for a new



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trial, arguing that Perez’s unpleaded affirmative defense of collateral estoppel

could not support the trial court’s grant of summary judgment; that collateral

estoppel did not apply in the present case; that the geographic restriction was not

unreasonable or overbroad and, even if it was, it should have been reformed; and

that Morrell Masonry was denied its right to a jury trial.

                               Summary Judgment

      In its sole issue on appeal, Morrell Masonry argues that the trial court erred

in granting summary judgment in Perez’s favor.

A.    Standard of Review

      We review a trial court’s ruling on a motion for summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Provident Life &

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a

traditional summary judgment motion, the movant has the burden of proving that it

is entitled to judgment as a matter of law and that there are no genuine issues of

material fact. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “We review the evidence presented

in the motion and response in the light most favorable to the party against whom

the summary judgment was rendered, crediting evidence favorable to that party if

reasonable jurors could, and disregarding contrary evidence unless reasonable

jurors could not.” Fielding, 289 S.W.3d at 848.



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B.    Analysis

      Morrell Masonry asserted a cause of action for breach of the covenant not to

compete contained in the Agreement. Both parties moved for summary judgment

on this claim, and the trial court denied Morrell Masonry’s motion and granted

Perez’s motion.     Morrell Masonry does not challenge the trial court’s ruling

granting Perez’s motion for summary judgment regarding its claim for breach of

the non-compete Agreement.

      Morrell Masonry argues, however, that the trial court erred in granting

summary judgment on an “unaddressed claim,” arguing that the Agreement

contained both non-competition and confidentiality covenants and that Perez never

sought summary judgment related to the confidentiality covenant.               Morrell

Masonry further asserts various arguments regarding a claim for breach of the

confidentiality covenant, arguing that the trial court “erred in granting summary

judgment because nondisclosure covenants are not against public policy and are

not required to contain reasonable time or geographical limitations” and because

“consideration existed” for the confidentiality covenant. Morrell Masonry argues

that it showed during the summary judgment proceedings that Perez worked for

one of its competitors and, thus, it is entitled to “the reasonable inference . . . that

confidential information is being shared by Perez with his new employer.”




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      However, Morrell Masonry did not plead a cause of action for breach of the

confidentiality clause in the trial court, nor did it assert any facts raising that

complaint. Morrell Masonry’s petition asserted facts related to Perez’s alleged

breach of the covenant not to compete and asserted only a claim for breach of that

covenant. Morrell Masonry did not assert any facts or arguments relating to an

alleged breach of confidentiality in its petition, motion for summary judgment,

response to Perez’s motion for summary judgment, or motion for new trial.

      Morrell Masonry is not entitled to assert a new claim for breach of the

Agreement’s confidentiality clause for the first time on appeal as a basis for

avoiding the trial court’s summary judgment. See TEX. R. CIV. P. 166a(c) (“Issues

not expressly presented to the trial court by written motion, answer or other

response shall not be considered on appeal as grounds for reversal.”); TEX. R. APP.

P. 33.1(a) (requiring presentation of complaint to trial court to preserve issue for

consideration on appeal); see also Baxter v. Gardere Wynne Sewell LLP, 182

S.W.3d 460, 465 (Tex. App.—Dallas 2006, pet. denied) (holding that appellants

could not assert claim for first time on appeal to avoid summary judgment and

noting that “[i]ssues a nonmovant contends avoid summary judgment that are not

expressly presented to the trial court by written answer or other written response to

the summary judgment motion are waived on appeal”); Loera v. Interestate Inv.

Corp., 93 S.W.3d 224, 228 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)



                                         7
(concluding that claims that were never pleaded, were not issues in trial, and were

not subject of request for findings of fact or conclusions of law were not preserved

for appellate review; stating that appellants could not “rewrite their pleadings to

allege new causes of action for the first time in a motion for new trial”); Wiley-

Reiter Corp. v. Groce, 693 S.W.2d 701, 704 (Tex. App.—Houston [14th Dist.]

1985, no writ) (“It is well-settled that an appellate court should not decide a case

on a theory different from that on which it was pleaded and tried.”). Because

Morrell Masonry did not plead or otherwise argue the issue of breach of the

confidentiality covenant in the trial court, we conclude that it failed to preserve this

complaint for our review.

      Morrell Masonry argues that we should construe its petition as raising any

“cause of action that may be reasonably inferred from what is specifically stated,

even if an element of the cause of action is not specifically alleged.” See, e.g.,

Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (holding that courts should

construe pleadings liberally in absence of special exceptions); Westcliffe, Inc. v.

Bear Creek Constr., Ltd., 105 S.W.3d 286, 292 (Tex. App.—Dallas 2003, no pet.)

(holding that petition is sufficient if cause of action may be inferred from what is

stated in petition, even if element of action is not specifically alleged). Here,

however, Morrell Masonry’s pleadings did not merely omit allegations relevant to

an element of a breach of confidentiality claim—its petition failed to assert such a



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claim in any form. The pleading asserted no facts or arguments relating to a

breach of confidentiality, and thus a cause of action for breach of the

confidentiality clause could not be inferred from what was alleged in the pleadings.

See Roark, 633 S.W.2d at 809; Westcliffe, Inc., 105 S.W.3d at 292.

      Morrell Masonry also argues that Perez did not file special exceptions to

Morrell Masonry’s pleadings and did not “address the covenant of confidentiality,

although the trial court granted summary judgment on this unaddressed claim.”

We have concluded that Morrell Masonry failed to assert such a claim in any form

in the trial court. Perez had no obligation to file special exceptions challenging

pleadings that were not made, nor was his motion for summary judgment required

to address claims not raised in the pleadings or other written material filed in the

trial court. See TEX. R. CIV. P. 166a. Thus, we conclude that the trial court’s grant

of Perez’s motion for summary judgment actually disposed of all claims and

parties then before it. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d

582, 585 (Tex. 2012) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–

93 (Tex. 2001)).

      We overrule Morrell Masonry’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Sharp, and Huddle.




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