                                                                                          ACCEPTED
                                                                                      03-15-00416-CV
                                                                                              7113395
                                                                           THIRD COURT OF APPEALS
                                                                                      AUSTIN, TEXAS
                                                                                 9/25/2015 6:30:05 PM
                                                                                    JEFFREY D. KYLE
                                                                                               CLERK
                     CASE NO. 03-15-00416-CV
              ________________________________________
                                                                FILED IN
                    IN THE COURT OF APPEALS 3rd COURT OF APPEALS
                                                    AUSTIN, TEXAS
        FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS
                                                 9/25/2015 6:30:05 PM
             ________________________________________
                                                   JEFFREY D. KYLE
                                                                 Clerk
      OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
          MICHAEL E. TASK, AND TYCORD R. GOSNAY

                               Appellants

                                     V.

                     AMERIPRO FUNDING, INC.
                                Appellee
                Appeal from the 345th Judicial District Court
                          of Travis County Texas
              ________________________________________

                 APPELLANTS’ OPENING BRIEF
              ________________________________________
                                          Wm. Charles Bundren, Esq.
                                          Attorney-in-Charge
                                          State Bar No. 03343200
                                          2591 Dallas Parkway
                                          Suite 300
                                          Frisco, Texas 75034
                                          Telephone:214.808.3555

SEPTEMBER 17, 2015               ORAL ARGUMENT REQUETSED
                  IDENTITY OF THE PARTIES AND COUNSEL

1.       Appellants are Oak Mortgage Group, Inc., Michael H. Nasserfar, Michael

E. Task, and Tycord R. Gosnay, Plaintiffs and Counter Defendants in the district

court.

2.       Appellants were represented in the district court and are represented in this

court by Wm. Charles Bundren, Esq. of Frisco, Texas.

         Wm. Charles Bundren, Esq.
         Texas State Bar No. 03343200
         WM.CHARLES BUNDREN & ASSOCIATES LAW GROUP, PLLC
         2591 Dallas Parkway
         Suite 300
         Frisco, Texas 75034
         Telephone: 214.808.3555
         Facsimile: 972.624.5340
         E-mail: Charles@bundrenlaw.net

3.       Appellee, and Defendant and Counter-plaintiff in the district court is:

         Ameripro Funding, Inc

4.       Appellee in this court and Defendant and counter-Plaintiff were represented

in the district court and are represented in this court by;

         Susan Burton, Esq.
         State Bar No.      03479350
         GRAVES DOUGHTERY HEARON & MOODY
         P.C.
         401 Congress., Suite 2200
         Austin, Texas 78701
         Telephone: (512) 480-5600
         Telecopier: (512) 480-5862 (facsimile)
         E-mail:            sburton@gdhm.com


                                            1
5.     The district court trial Judge who signed the temporary injunction order that
is the subject of this appeal is the Hon. Gisela D Triana Judge Presiding for the
345th Judicial District of Travis County, Texas




                                         2
                STATEMENT REGARDING ORAL ARGUMENT


   Appellants believe that oral argument will assist the court in reviewing the rules of

applicable law to this important case. Appellants do not believe that this case can be

determined on the basis of the briefs alone. Oral argument will assist the court in

being able to reach the correct result. Appellants request that the court set this matter

for oral argument.




                                          3
                     TABLE OF CONTENTS

                                                PAGE

IDENTITY OF THE PARTIES AND COUNSEL                1

STATEMENT REGARDING ORAL ARGUMENT                  3

TABLE OF CONTENTS                                  4

INDEX OF AUTHORITIES                               7

STATEMENT OF THE CASE                              14

ISSUES PRESENTED FOR REVIEW                        15

STATEMENT OF FACTS                                 15

SUMMARY OF THE ARGUMENT                            18

STANDARD OF REVIEW                                 20

ARGUMENT AND AUTHORITIES                           21

  I. THE TEMPORARY INJUNCTION ORDER IS VOID
     BECAUSE IT DOES NOT COMPLY WITH THE
     REQUIREMENTS OF RULE 683 AND THERE IS NO
     EVIDENCE IN THE RECORD TO SUPPORT
     THE ELEMENTS NECESSARY TO OBTAIN
     A TEMPORARY INJUNCTION.                       21

  II. THE DISTRICT COURT ERRED IN APPLYING
      THE NON-SOLICITATION PROVISIONS OF THE
      CONTRACTS TO REAL ESTATE HOMEBUILDERS
      AND CONDOMINIUM DEVELOPERS, REAL ESTATE
      SALES AGENTS, AND OTHER REAL ESTATE
      PROFESSIONALS INVOLVED IN THE REAL
      ESTATE INDUSTRY BECAUSE THEY ARE NOT
      "CUSTOMERS" OF AMERIPRO UNDER THE
      PLAIN READING OF THE CONTRACTS.              27
                              4
     III..THE DISTRICT COURT ERRED IN CONCLUDING
         THAT RESIDENTIAL HOME AND CONDOMINIUM
         BUILDER, AND REAL ESTATE SALES AGENT
         CONTACT INFORMATION IS A TRADE SECRET BECAUSE
          SUCH INFORMATION IS PUBLIC INFORMATION AND
         CAN NEVER BE DETERMINED TO BE A TRADE SECRET,
         AND IS NOT THE CONFIDENTIAL AND
         PROPRIETARY INFORMATION OF AMERIPRO.            33

IV.    THE DISTRICT COURT ERRED IN GRANTING THE
       TEMPORARY INJUNCTION BECAUSE AMERIPRO FAILED
       TO PROVE PROBABLE, IMMINENT AND IRREPARABLE
       INJURY CAUSED BY THE PREVIOUS POSSESSION OF
       CONFIDENTIAL INFORMATION OF AMERIPRO.             39

V.     THE DISTRICT COURT ERRED IN GRANTING THE
       TEMPORARY INJUNCTION BECAUSE AMERIPRO
       HAS AN ADEQUATE REMEDY AT LAW FOR
       CONTRACTUAL DAMAGES AND THERE IS NO
       IRREPARABLE INJURY SUFFICIENT TO
       JUSTIFY THE TEMPORARY INJUNCTION.                 44

VI.    THE DISTRICT COURT ABUSED ITS DISCRETION AND
       ENTERED AN OVERBROAD TEMPORARY INJUNCTION IN
       WHICH THERE IS NO NEXUS BETWEEN THE ENJOINED
       CONDUCT AND ANY IMMINENT AND IRREPARABLE
       INJURY TO AMERIPRO.                               54

PRAYER                                                   58

CERTIFICATE OF SERVICE                                   58

CERTIFICATE OF WORD COMPLIANCE                           59

APPELLANTS’ APPENDIX                                      TAB

       TEMPORARY INJUNCTION ORDER                             1

       NOTICE OF APPEAL                                       2
                               5
SUPPLEMENTAL COUNTER PETITION   3

SUPPLEMENTAL COUNTERCLAIM       4

DAMAGES ALLEGED BY AMERIPRO     5

EMPLOYMENT AGREEMENT            6




                       6
                          INDEX OF AUTHORITIES

                                                                      PAGE

CASES

Adust Video v. Nueces County,
  996 S.W.2d 245(Tex. App.--Corpus Christi 1999, no pet.)                22

Allan J. Richardson & Assocs v. Andrews,
      718 S.W.2d 833 (Tex. App. -- Houston [14th Dist.]
      1986, no writ).                                                    37

Big D Props., Inc. v. Foster,
   2 S.W.3d 21 (Tex. App.--Fort Worth 1999, no pet.).                    22

Butnaru v. Ford,
     84 S.W.3d 198 (Tex. 2002)                                           44,48

Brandon v. Copper,
   591 S.W.2d 553 (Tex. App. -- Amarillo 1979, writ ref'd n.r.e.).       36

Byrd Ranch, Inc. v. Interwest Sav. Assoc.,
      717 S.W.2d 452 (Tex. App.--Fort Worth 1986, no writ)               22

Canteen Corp. v. Republic of Tex. Props., Inc.,
     773 S.W.2d 398 (Tex. App.--Dallas 1989, no writ)                    45,50

Cardinal Health Staffing Network, Inc. v. Bowen
      106 S.W.3d 230 (Tex. App.-- Houston [1st Dist.] 2003, no pet.      41,50

Computek Computer & Office Sups. v. Walton,
    156 S.W.3d 221 (Tex. App. -- Dallas 2005, no pet.).                  54

Cornelison v. Offshore Entm't Corp.,
     No. 13-02-00452-CV, 2002 Tex. App. LEXIS 8618, at *4-5
     (Tex. App.--Corpus Christi Dec. 5, 2002, no pet.)                   22

Dallas Gen. Drivers v. Wamix, Inc.
      295 S.W. 873 (Tex. 1956)                                           47
                                         7
Down Time-South Texas, LLC v. Elps,
      2014 Tex. App. LEXIS 3047, 2014 WL 1464320, at *7
(Tex. App. -- Corpus Christi-Edinburg, March 20, 2014, no pet.)          43

Downer v Aquamarine Operators, Inc. ,
    701 S.W.2d 238 (Tex. 1985)                                           20

Electronic Data Sys. Corp. v. Powell,
      508 S.W.2d 137 (Tex. Civ. App.-Dallas 1974, no writ).              44

EMSL Analytical, Inc. v Younker,
    154 S.W.3d 693 (Tex. App. -- Houston [14th Dist.] 2004, no pet.)     42

Fairfield Estates L.P. v Griffin,
       986 S.W.2d 719 (Tex. App. -- Eastland 1999 no Pet)                21.

Farmers Ins. Exch. v. Leonard,
     125 S.W. 85(Tex. App. -- Austin 2003, pet. denied).                 30

Frey v. Decordova Bend Estates Owners Ass'n
      647 S.W. 246 (Tex. 1983)                                           45

Gallagher Headquarters Ranch Dev., Ltd v. City of San Antonio,
      303 S.W,3d 700, 702 (Tex. 2010).                                   30

Gen. Homes, Inc. v. Wingate Civic Assoc.,
      616 S.W.2d 351 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ) 22

Ghidoni v. Stone Oak, Inc.
     966 S.W. 2d 573, (Tex. App. -- San Antonio 1998, no writ).          21,55

Guy Carpenter & Co. , Inc. v Provenzale,
     334 F.3d 459 (5th Cir. 2003)                                        40

Harbor Perfusion, Inc. v. Floyd,
     45 S.W.3d 713 (Tex. App.—Corpus Christi 2001, no pet.)              20

InterFirst Bank San Felipe, N.A. v. Paz Const. Co.,
   715 S.W.2d 640 (Tex. 1986)                                            22
                                         8
Interox Am. v. PPG Indus.,
      736 F.2d 194 (5th Cir. 1984)                                       35,37

Intercontinental Terminals Co. v. Vopak N. Am., Inc,
      354 S.W.3d 887 (Tex. App. -- Houston [1st Dist.] 2011, no pet. )   23

Fasken v. Darby,
     901 S.W.2d 591 (Tex. App. -- El Paso 1995, no writ)                 24

In re Union Pac. R.R.,
       294 S.W.3d 589 (Tex. 2009)                                        38

In re Bass,
       113 S.W.3d 735(Tex. 2003).                                        38

Kewanee Oil Co. v. Bicron Corp.,
     416 U.S. 470 (1974)                                                 36

Kotz v. Imperial Capital Bank,
      319 S.W.3d 54 ( Tex. App. -- San Antonio 2010, no pet.)            24

Lamons Metal Gasket Co. v. Traylor,
     361 S.W.2d 211 (Tex. App. -- Houston 1962, writ ref'd n.r.e.)       38

Law v. William Marsh Rice Univ.,
      123 S.W.3d 786 (Tex. App. -- Houston [14th Dist.] 2003, pet denied) 21

Levine v. Bayne, Snell & Krause, Ltd.,
      40 S.W.3d 92 (Tex. 2001)                                           30

Letson v. Barnes,
      979 S.W.2d 414 (Tex. App. -- Amarillo 1998, pet. denied).          26

Matlock v. Data Processing Security, Inc.,
     618 S.W.327(Tex. 1981).                                             55

Mareno v. Baker Tools, Inc.
     808 S.W.2d 208 (Tex. App. -- Houston [1st Dist.] 1991, no writ).    24


                                         9
Markel v. World Flight, Inc.
     938 S.W.2d 74 (Tex. App. -- San Antonio 1996, no pet.)             47

Minexa Ariz, Inc. v. Staubach,
     667 S.W.2d 563 (Tex. App.-- Dallas 1984, no writ).                 46,50

M-I, LLC v. Stelly,
      2009 U.S. Dist. LEXIS 65866, 2009 WL 2355498 at *7
      (S.D. Tex. July 30, 2009)                                         41

Monsanto Co. v. Davis,
  25 S.W.3d 773 (Tex. App.--Waco 2000, pet. denied)                     22

NMTC Corp v. Conarroe,
    99 S.W.3d 865 (Tex. App. -- Beaumont 2003, no pet.)                 42

Numed, Inc. v. McNutt,
    724 S.2d 432 (Tex. App. -- Fort Worth 1987, no writ)                37

Noell v. City of Carrollton
      431 S.W. 3d 682 (Tex. App. -- Dallas 2014, pet denied)            49

Priest v. Tex. Animal Health Comm'n,
       780 S.W.2d 874 (Tex. App. -- Dallas 1989, no writ)               49

Primary Health Physicians, P.A. v Sarver,
     309 S.W.3d 662 (Tex. App. -- Dallas 2012, no pet.)                 42

Progressive Cty. Mut. Ins. v. Kelley,
     284 S.W.805, (Tex. 2009)                                           30

Qwest Comms. v. AT&T Corp,
  24 S.W3d 334 (Tex. 2000)                                              22

Reliant Hosp. Partners v. Cornerstone Healthcare Grp. Holdings, Inc.,
374 S.W.3d 488 (Tex. App. -- Dallas 2012, pet. denied)                  37

Reach Group, LLC v. Angelina Group,
  173 S.W.3d 834 (Tex. App. -- Houston [14 Dist.] 2005, no pet)         45,47


                                        10
Sands v. Estate of Buys,
      160 S.W.3d 684 (Tex. App. -- Fort Worth 2005, no pet.)               35,37

SCM Corp. v. Triplett Co.,
    399 S.W.2d 583 (Tex. App. -- San Antonio 1996, no writ)                35

State v. Southwestern Bell Tel Co.,
       526 S.W.2d 526, (Tex. 1975).                                        54

State v. Heal,
       917 S.W.2d 6 (Tex. 1996)                                            20

State & Cty. Mut. fire Ins. v. Macias,
      83 S.W.3d 304 (Tex. App.-- Corpus Christi, 2002).                    30

Stoner v. Thompson,
      553 S.W.2d 150
      (Tex. Civ. App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.)        22

Sun Oil Co. v. Whitaker,
     424 S.W.2d 216 (Tex. 1968)                                            44

Tenet Health Ltd. v. Zamora,
      13 S.W. 3d 464 (Tex. App. -- Corpus Christi 2000, pet. dism'd w.o.j.) 20

Tex. HealthCare Info. Council v. Seton Health Plan, Inc.,
      94 S.W.3d 841 (Tex. App.-- Austin 2002, pet. denied)                 41

Town of Palm Valley Texas v. Johnson,
     87 S.W.3d 110 (Tex. 2001),                                            49

The Republican Party of Texas v. Dietz,
     940 S.W. 2d 86 (Tex. 1997).                                           21, 55

Tranter, Inc. v. Liss,
      2014 Tex. App. LEXIS 3398, 2014 WL 1257278 at *7
(Tex. App. -- Fort Worth, March 27, 2014 no pet.)                          43

Tri-State Pipe and Equiq, Inc. v S. Cnty Mut. Ins. Co.,
      8 S.W. 394 (Tex. App.-- Texarkana 1999, no pet.)                     45
                                          11
Twister B.V. v. Newton Research Partners,
      364 S.W.3d 428 (Tex. App. -- Dallas, no pet.)                     35

Rimkus Consulting Group, Inc. v. Cammarata,
     255 F.R.D. 417 (S.D. Tex. 2008)                                    40

Sharma v. Vinmar Int'l Ltd.,
     231 S.W.3d 405 (Tex. App. -- Houston [14th Dist.] 2007, no pet.)   40

Tom James Co. v Mendrop,
      819 S.W.2d 251 (Tex. App.--Fort Worth 1991, no writ)              52

Univ. Interscholastic League v. Torres,
      616 S.W.2d 355 (Tex. Civ. App.--San Antonio 1981, no writ)        22

Villalobos v Holguin,
       208 S.W.2d 871 (Tex. 1948)                                       21

Walling v. Metcalfe,
      863 S.W.2d 56 (Tex. 1993)                                         20,44

Webb v. Glenbrook Owners Ass'n, Inc.
     298 S.W.3d 374 (Tex. App. -- Dallas 2009, no pet.)                 49

Wissman v. Boucher,
     240 S.W.2d 278(Tex. 1951)                                          35,37

W. R. Grace & Co. v. Henson,
      2007 Tex. App. LEXIS 6771, 2007 WL 2389547 at *3
      (Tex. App. -- Corpus   Christi August 23, 2007, no pet.)          40,52

STATUTES

Tex. Civ. Rem. Code §134A.002(6)                                   Passim

Rules

TEX. R. CIV. P. 683                                                Passim


                                        12
OTHER AUTHORITIES

BLACK'S LAW DICTIONARY 348 (5th ed. 1979)   32

UNIFORM TRADE SECRETS ACT                   36




                                13
                          STATEMENT OF THE CASE

      Plaintiffs, Oak Mortgage Group, Inc. (referred to herein as "Oak"), Michael

H. Nasserfar, (referred to herein as "Nasserfar"), Michael E. Task (referred to

herein as "Task") and Tycord R. Gosnay, (referred to herein as "Gosnay") (referred

to herein collectively as “Appellants") sued Ameripro Funding, Inc. (referred to

herein as "Ameripro") (see, Clerk’s Record, (hereinafter referred to as “CR ___”)

at 3-39) for, inter alia, breach of contract and unfair business practices. Nasserfar,

Task and Gosnay were formerly at will employee residential loan origination

officers for Ameripro who resigned on January 16, 2015 from Ameripro and then

began working as residential loan origination officers for Oak. Ameripro answered

the suit and filed a counterclaim (CR 40-43) against Appellants alleging, inter

alia, breach of contract by Nasserfar, Task and Gosnay, and subsequently filed an

application for temporary injunction. (CR 44-68).

      The district court heard evidence on Ameripro's application for temporary

injunction on May 26 and May 27, 2015. On June 16, 2015, the Hon. Gisela D.

Triana, Judge presiding, entered a Temporary Injunction Order. (See Appendix

attached to this Brief referred to as "App. ___" at 1; CR at 223-227 ). Appellants

perfected their accelerated appeal to this court from the Temporary Injunction

Order on July 6, 2015 ( App. 2; CR 230-235).




                                         14
                     ISSUES PRESENTED FOR REVIEW

      The issues presented for review are:

      1. Whether the Temporary Injunction Order is void because it does not
comply with the requirements of Rule 683 and there is no evidence in the record to
support the elements necessary to obtain a temporary injunction?

       2.    Whether the district court erred in applying the non-solicitation
provisions of the contracts to real estate homebuilders and condominium
developers, real estate sales agents, and other real estate professionals involved in
the real estate industry because they are not "customers" of Ameripro under the
plain reading of the contracts?

       3.    Whether the district court erred in concluding that residential home
and condominium builder, and real estate sales agent contact information is a trade
secret because such information is public information and can never be determined
to be a trade secret, and is not the confidential and proprietary information of
Ameripro?

      4.     Whether the district court erred in granting the Temporary Injunction
because Ameripro failed to prove probable, imminent and irreparable injury caused
by the previous possession of confidential information of Ameripro?

       5.     Whether the district court erred in granting the Temporary Injunction
because Ameripro has an adequate remedy at law for contractual damages and
there is no irreparable injury sufficient to justify the Temporary Injunction? and,

      6.    Whether the district court abused its discretion and entered an
overbroad temporary injunction in which there is no nexus between the enjoined
conduct and any imminent and irreparable injury to Ameripro?


                          STATEMENT OF FACTS

      Oak and Ameripro are competitors in the residential loan mortgage

origination business. Nasserfar, Task and Gosnay worked as loan officers for

Ameripro responsible for originating residential mortgage loans. Nasserfar, Task
                                         15
and Gosnay were at will employee's and pursuant to their contracts retained the

right to resign at any time without notice and without cause and, likewise,

Ameripro retained the right to terminate the employment of Nasserfar, Task and

Gosnay at any time without notice and without cause. (See, App. 6 -- employment

agreement; RR at Vol.2 Ameripro Exhibits 9, 10, 11, 13, 15, 16, 17, and 18).

Nasserfar and Task, as they were permitted to do pursuant to their employment

contracts, terminated their employment with Ameripro on January 16, 2015 (RR at

Vol.4 Applicant's Exhibits 2 and 3), and at the time of the resignations, Nasserfar

and Task returned to Ameripro the laptop computers that had been issued to them.

Id. Gosnay resigned on January 15, 2015. (RR at Vol. 4 Applicant's Exhibit 4), and

returned the laptop computer to Ameripro. Nasserfar, Task and Gosnay began

working for Oak on January 19, 2015.          The employment agreements with

Nasserfar, Task and Gosnay were drafted by Ameripro and not negotiated by

Nasserfar, Task and Gosnay. (RR at Vol. 3 at 70, L15-25). Ameripro admits that

the employment agreements do not define the term "customer." (RR at Vol. 3 at

71, L1-11).

      Ameripro was unhappy that it's at will employee's had decided to resign and

sent demand letters claiming that contact information of home builders and

residential developers was a "trade secret" of Ameripro. (RR at Vol. 4 Applicant's

Exhibit 5). The information that Ameripro contends is a trade secret is readily


                                        16
available in the public domain and can be obtained by a simple Google search to

find contact information of the builders Ameripro claims are trade secrets. (RR at

Vol. 4 Plaintiffs Exhibits 52- 64; RR at Vol. 3 123-126).

      At the time of the temporary injunction hearing, Appellants did not have in

their possession any paper or electronic files which Ameripro claimed was its

property. All electronic and paper files were returned to Ameripro prior to the

temporary injunction hearing and non were retained by Appellants. (RR at Vol. 3

at 122, L21 -- 123 L5; Plaintiffs' Exhibit 34 at RR Vol. 4; RR at Vol. 3 at 73 L18-

78, L1, and 85, L6 - 86, L 23; ). Prior to the temporary injunction hearing all

electronic files claimed by Ameripro to be its property were removed from all

electronic devices of Nasserfar, Task, Gosnay and Oak and returned to Ameripro.

Id.

      Chad Overhauser, the President of Ameripro, admitted that Ameripro has no

agreements, no contracts and no business relations with homebuilders and

residential developers such as Brohn Homes, Seahome Residences, and Clark

Wilson Builders and does not pay nor receive any money or other consideration

from homebuilders and residential developers for any products or services. (RR

Vol. 2 at 109-111). Overhauser admitted that Ameripro's customers are the

borrowers borrow money from Ameripro to purchase residential real estate. (RR.

Vol 2 115, L9-21).


                                         17
                                             II.

                      SUMMARY OF THE ARGUMENT

      An applicant for a temporary injunction bears the burden of proving that the

temporary injunction and the specific acts which are enjoined are necessary in

order to prohibit imminent and irreparable injury to the applicant. In this case,

Ameripro failed to offer evidence at the temporary injunction hearing of any

imminent injury that would cause Ameripro irreparable injury. In fact, shortly

after the temporary injunction hearing, Ameripro swore that it was entitled to

recover nearly $2 million in damages for breach of the contract. Texas law does

not permit a temporary injunction to enforce a contract where the applicant for the

injunction has an adequate remedy at law to recover contractual damages. There

simply is no imminent injury. And, there is no irreparable harm that was facing

Ameripro. Ameripro failed to sustain its burden of establishing imminent and

irreparable injury which would necessitate the entry of a temporary injunction.

Moreover, the temporary injunction has no nexus to any imminent or irreparable

injury and was not necessary to prohibit Ameripro from suffering and irreparable

injury.

      The temporary injunction order does not comply with the requirements of

Rule 683 because it does not explain why the injunction is necessary in order to

prohibit imminent and irreparable injury to Ameripro. The temporary injunction


                                        18
order makes merely conclusions regarding the applicable legal standard without

providing a reasoning or justification for the injunctive relief and why the

injunctive relief is necessary to prevent irreparable injury.          Therefore, the

temporary injunction order is void.

      The district court did not follow the language of the contract and applicable

law and restrained Appellants from soliciting publicly known residential builders

and developers.     The names and contact information of the publicly known

residential builders and developers is not a trade secret because the information is

readily available in the public and can be obtained by doing a simple Google

search. The contract fails to define the term "customer" but at the temporary

injunction hearing Ameripro's president admitted that Ameripro provides loans to

residential borrowers and that the residential borrowers are the customers of the

Ameripro.    He also admitted that Ameripro has no contracts, agreements or

business relationships with residential homebuilders and developers. They are not

"customers" of Ameripro and, consequently, the district court abused its discretion

in restraining Appellants from soliciting the homebuilders.

      The temporary injunction order is overbroad and there is no nexus between

the restrictions in the temporary injunction order and the need to protect Ameripro

from imminent and irreparable injury. The temporary injunction order erroneously

fails to limit the restrictions on solicitation to one (1) year after the termination of


                                          19
the employment contracts, and compelled Appellants to turn over forensic images

of their electronic devices and to cease and desist from using their electronic

devices including cell phones, hard drives and laptops which they had used in their

ordinary and daily business practices. There is no justification for this compelling

order and there is no nexus between this provision of the temporary injunction

order and any imminent or irreparable injury.

                            STANDARD OF REVIEW

      The standard of review for the grant or denial of a temporary injunction is

abuse of discretion. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex.

App.—Corpus Christi 2001, no pet.) (citing, Walling, 863 S.W.2d at 58; Tenet

Health Ltd. v. Zamora, 13 S.W.3d 464, 468 (Tex. App.—Corpus Christi 2000, pet.

dism'd., w.o.j.)). However, a trial court abuses its discretion when it acts arbitrarily

and unreasonably, without reference to guiding rules or principles, or misapplies

the law to the established facts of the case. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985). There is no particular deference to legal

conclusions of the trial court and a de novo standard of review applies when the

issue turns on a pure question of law. Zamora, 13 S.W.3d at 468; see State v. Heal,

917 S.W.2d 6, 9 (Tex. 1996). "[A] trial court abuses its discretion by entering an

overly-broad' injunction which grants 'more relief' than a plaintiff is entitled to by

enjoining a defendant from conducting lawful activities or from exercising legal


                                          20
rights." Harbor Perfusion, 45 S.W.3d at 717, (citing Fairfield Estates L.P. v.

Griffin, 986 S.W.2d 719, 723 (Tex. App.—Eastland 1999, no pet.); The Republican

Party of Texas v. Dietz, 940 S.W.2d 86, 93 (Tex. 1997); Villalobos v. Holguin, 146

Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948); Ghidoni v. Stone Oak, Inc., 966

S.W.2d 573, 583 Tex. App.—San Antonio 1998, no writ)). For reasons argued

herein, the temporary injunction granted by the district court is overly broad, not

based upon the evidentiary record and an abuse of discretion by the district court

and, consequently, the temporary injunction should be dissolved. A district court

abuses its discretion if it misapplies the law to the established facts of the case,

Law v. William Marsh Rice Univ., 123 S.W.3d 786, 792 (Tex. App.--Houston

[14th Dist.] 2003, pet. denied), or if it acts arbitrarily and unreasonably, without

reference to guiding rules or principles, or if Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

                      ARGUMENT AND AUTHORITIES

                                          I.

  THE TEMPORARY INJUNCTION ORDER IS VOID BECAUSE IT
DOES NOT COMPLY WITH THE REQUIREMENTS OF RULE 683 AND
THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT THE
ELEMENTS NECESSARY TO OBTAIN A TEMPORARY INJUNCTION.

      The temporary injunction order is void because it does not comply with the

strict requirements of Rule 683 of the Texas Rules of Civil Procedure. Rule 683


                                        21
provides that every order granting an injunction must "set forth the reasons for its

issuance" and "be specific in its terms." TEX. R. CIV. P. 683. That is, the order

must provide a "detailed explanation of the reason for the injunction's issuance."

Adust Video v. Nueces County, 996 S.W.2d 245, 249 (Tex. App.--Corpus Christi

1999, no pet.). This requirement is mandatory and must be strictly followed. Qwest

Comms. v. AT&T Corp, 24 S.W3d 334, 337 (Tex. 2000); InterFirst Bank San

Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640, 641 (Tex. 1986); Monsanto Co. v.

Davis, 25 S.W.3d 773, 788 (Tex. App.--Waco 2000, pet. denied); Big D Props.,

Inc. v. Foster, 2 S.W.3d 21, 22-23 (Tex. App.--Fort Worth 1999, no pet.). If an

order fails to comply with these requirements, it is void and should be dissolved.

Qwest Comms., 24 S.W3d at 337; InterFirst Bank, 715 S.W.2d at 641; Monsanto

Co., 25 S.W.3d at 788.

      When a temporary injunction is based in part on a showing that the applicant

would suffer irreparable harm if the injunction is not issued, Rule 683 requires the

order to state precisely why the applicant would suffer irreparable harm. See, State

v Cook United, Inc. 464 S.W.2d 105,106 (Tex. 1971); Monsanto Co., 25 S.W.3d at

788 (finding a temporary injunction order to be void under Rule 683 because it

stated only that plaintiffs "will suffer probable injury in the event that such writ of

temporary injunction is not issued"); Byrd Ranch, Inc. v. Interwest Sav. Assoc., 717

S.W.2d 452, 453-55 (Tex. App.--Fort Worth 1986, no writ) (same where order


                                          22
stated only that plaintiff "will suffer irreparable harm for which it has no adequate

remedy at law"); Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358

(Tex. Civ. App.--San Antonio 1981, no writ) ("Even though there were allegations

in the appellee's petition for injunction which may have justified the issuance of the

writ, the mere recital of 'no adequate remedy at law' and 'irreparable harm' in the

order lacks the specificity required by Rule 683."); Gen. Homes, Inc. v. Wingate

Civic Assoc., 616 S.W.2d 351, 353 (Tex. Civ. App.--Houston [14th Dist.] 1981, no

writ) (finding that a temporary injunction order did not satisfy Rule 683 "because

it only states the trial court's conclusion that immediate and irreparable harm will

result if the injunction is not granted, with no specific reasons supporting the

conclusion"); Stoner v. Thompson, 553 S.W.2d 150, 151 (Tex. Civ. App.--Houston

[1st Dist.] 1977, writ ref'd n.r.e.) (finding a temporary injunction order insufficient

under Rule 683 and noting that "[t]he conclusion [in the order] that the situation is

harmful [to the plaintiff] is not a reason        why injury will be suffered if the

interlocutory relief is not ordered"); see also Cornelison v. Offshore Entm't Corp.,

No. 13-02-00452-CV, 2002 Tex. App. LEXIS 8618, at *4-5 (Tex. App.--Corpus

Christi Dec. 5, 2002, no pet.) (not designated for publication) (finding a temporary

injunction order void under Rule 683 where order stated only that "[t]he Court

finds that immediate and irreparable injury, loss or damage as alleged will result to

plaintiff   unless   Defendant   is   forthwith    restrained   as   requested");   and


                                          23
Intercontinental Terminals Co. v. Vopak N. Am., Inc, 354 S.W.3d 887, 899 (Tex.

App. -- Houston [1st Dist.] 2011, no pet. ) ("Rule 683 mandates that a trial court

order granting a temporary injunction must explain in the order its reasons for

believing that the applicant has shown it will suffer injury if interlocutory relief is

not granted."). The temporary injunction order in this case does not explain in the

order the reasons the district court believes that Ameripro will suffer irreparable

injury if a temporary injunction is not granted and, thus, the temporary injunction

order is void because it does not comply with the strict and mandatory

requirements of Rule 683.

          Rule 683 requires that the injunction order state the reasons why an injury is

imminent and irreparable and why an adequate remedy at law does not exist with

detail.     The Rule requires that the order state specifically why the injury is

imminent and what injury will be suffered by the applicant if the injunctive relief is

not granted. Cook United, 464 S.W.2d at 106: Kotz v. Imperial Capital Bank, 319

S.W.3d 54,56 ( Tex. App. -- San Antonio 2010, no pet.); International Bhd. of

Elec. Workers Local Un. v Becon Constr. Co., 104 S.W.3d 239, 243 (Tex. App. --

Beaumont 2003, no pet.); Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App. -- El

Paso 1995, no writ); and, Mareno v. Baker Tools, Inc. 808 S.W.2d 208, 210 (Tex.

App. -- Houston [1st Dist.] 1991, no writ). A temporary injunction "that fails to

identify the harm that will be suffered if it does not issue must be declared void


                                            24
and be dissolved. This rule operates to invalidate an injunction even when the

complaining party fails to bring the error to the trial court's attention." Fasken, 901

S.W.2d at 593.

      Here, the temporary injunction order makes mere conclusions and does not

provide any explanation or description of why the extraordinary remedy of a

temporary injunction is needed in order to prevent imminent injury to Ameripro.

The temporary injunction order merely concludes that "Ameripro has met its

burden to establish a probable right of recovery and likelihood of success on the

merits"; but the temporary injunction order does not comply with the requirements

of the Rule 683 by providing the grounds or explaining why the alleged injury to

Ameripro is imminent, or irreparable, or why an adequate remedy at law does not

exist for damages.      The temporary injunction order merely concludes that

"Ameripro will suffer a probable, imminent and irreparable injury" but provides no

explanation of why the injury is imminent or, further why the injury is irreparable.

The order merely concludes that "Ameripro does not have a legal remedy that is

adequate in lieu of injunctive relief" but does not provide the necessary description

or grounds supporting why Ameripro does not have a remedy for breach of

contract in damages.

      Nowhere in the temporary injunction order is there any description or

explanation of why any injury to Ameripro is imminent.             There is also no

                                          25
explanation or description in the temporary injunction order relating to any

"customers" of Ameripro that Appellants unlawfully solicited. And, there is no

explanation in the temporary injunction order regarding any solicitation of "Brohn

Homes, Seaholm Residences or Clark Wilson Builders." On its face, the temporary

injunction order fails to comply with the requirements of Rule 683 and, as a result,

is void and should be dissolved.

      The temporary injunction applicant carries the burden to establish all of the

necessary elements that would entitle the applicant to a temporary injunction. At

the temporary injunction hearing, the applicant, Ameripro, must introduce

competent evidence to support all of the necessary elements required to secure a

temporary injunction including an injury that is imminent and a lack of any other

legal remedy. Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App. -- Amarillo 1998,

pet. denied). There is no evidence in the record of this appeal that would support

any conclusion that Ameripro does not have an adequate remedy at law in damages

for the alleged breach of the contract by Nasserfar, Task and Gosney. There is no

evidence in the record that Ameripro cannot recover damages and no evidence that

Ameripro made any effort to attempt to calculate its contract damages.

Furthermore, there is no evidence in the record of any "imminent injury" to

Ameripro caused by Appellants' possession of alleged confidential information of

Ameripro prior to the temporary injunction hearing.        In fact, the undisputed

                                        26
evidence is that all confidential information of Ameripro -- both paper and

electronic -- was returned to Ameripro prior to the temporary injunction hearing

(RR at Vol. 4 Applicant's Exhibit 4; RR at Vol. 3 at 122, L21--123, L5; Plaintiffs'

Exhibit 34 at RR Vol.4; RR at Vol 3 at 73 L18-- 78, L1 and 85, L6 -86, L23.), and,

consequently, there is no basis for any injunction related to the alleged confidential

information of Ameripro. Furthermore, there is no evidence in the record that

Appellants solicited any "customers" of Ameripro except those "customers" of

Appellants that existed prior to the time that they were employed by Ameripro in

which they are permitted to solicit under the express wording of the employment

contracts. In other words, there is no basis and no evidence in the record of any

solicitation of "customers" that would violate any contract. And, in addition, there

is simply no evidence in the record that this temporary injunction was necessary

because of an imminent injury to Ameripro. Consequently, based on the failure of

the temporary injunction order to comply with Rule 683 and the failure of

Ameripro to carry its burden of presenting competent evidence supporting the

elements necessary for a temporary injunction, the temporary injunction in this

case is void and should be immediately dissolved.

                                         II.

THE DISTRICT COURT ERRED IN THE TEMPORARY INJUNCTION
ORDER IN APPLYING THE NON-SOLICITATION PROVISIONS OF
THE CONTRACTS TO REAL ESTATE HOMEBUILDERS AND
CONDOMINIUM DEVELOPERS, REAL ESTATE SALES AGENTS, AND
                                         27
OTHER REAL ESTATE PROFESSIONALS INVOLVED IN THE REAL
ESTATE INDUSTRY BECAUSE THEY ARE NOT "CUSTOMERS" OF
AMERIPRO UNDER THE PLAIN READING OF THE CONTRACTS.

      The contracts only prohibit the solicitation of "any customer" of Ameripro

for a period of one (1) year following the termination of Nasserfar's and Task's

employment with Ameripro.           Several paragraphs in several employment

agreements provide generally the same verbiage as follows:

       "5.(e) For a period of one year following the termination of the Employee's
employment with the Company, the Employee agrees that he will not, directly or
indirectly, for his benefit or for the benefit of any other person, firm or entity do
any of the following:

      (i)     solicit from any customer, payor or supplier doing business with the
company as of the Employee's termination, business of the same or of a similar
nature to the business of the Company with such customer, payor or supplier:

...
             Notwithstanding anything to the contrary contained in the foregoing,
the prohibition contained in Section 5(e)(i) and 5(e)(ii) shall not apply to any
customer of Employee that existed prior to employment with the Company,
provided the customer and their loan is not being serviced by the Company."
(Emphasis added).

( App.6; RR Vol. 4 at Applicant's Exhibit 14). The employment agreements were

drafted by Ameripro. (RR at Vol. 3 at 70, L15-25).

      The employment agreements on their face do not define the terms

"customer" and Ameripro confessed that there are no definitions of the terms in the

agreements (RR at Vol. 3 at 71, L1-11) But the exception to the prohibition on

solicitation applies to "any customer of Employee that existed prior to employment


                                         28
with the Company, provided the customer and their loan is not being serviced by

the Company." (Emphasis added) Ameripro is in the business of loaning money to

customers to purchase residential real estate. (RR Vol. 2 at 109-111; 115, L9-21).

This paragraph of the employment agreement clearly defines the term "customer"

to refer to residential loan borrowers, not homebuilders or residential developers.

The district court erred as a matter of law in concluding that the term "customer"

applies to residential homebuilders, residential condominium developers, and other

real estate professionals such as real estate sales agents, and in granting a

temporary injunction prohibiting solicitation of "Brohn Homes, Seaholm

Residences and Clark Wilson Builders" (See, App. 1 at 4).      This construction

of the employment agreement by the district court is contrary to the language and

intent of the agreement. The district court's construction of the employment

agreement to define the term "customer" to include residential homebuilders,

residential condominium developers, and other real estate sales professionals such

as real estate agents creates a latent ambiguity in the agreement. It was not the

intent of the agreement. The intent of the agreement was to define the term

"customer" to mean only residential loan borrowers since Michael Nasserfar and

Michael Task are licensed residential mortgage loan officers and Ameripro is in

the business of loaning money to borrowers to enable them to purchase residential

real estate. Any other construction of these terms in the employment agreement is


                                        29
ambiguous and the ambiguity must be construed against the drafter of the

agreement -- Ameripro. Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95

(Tex. 2001); State & Cty. Mut. fire Ins. v. Macias, 83 S.W.3d 304, 307 (Tex. App.-

- Corpus Christi, 2002).

      A latent ambiguity in a contract occurs when a contract is unambiguous on

its face, but an ambiguity arises due to some collateral matter when the contract is

applied to the particular subject matter. Progressive Cty. Mut. Ins. v. Kelley, 284

S.W.805, 807 (Tex. 2009); and, Farmers Ins. Exch. v. Leonard, 125 S.W. 85, 65

(Tex. App. -- Austin 2003, pet. denied). The district court's construction of the

employment contract term "customer" to include residential homebuilders,

residential condominium developers, and other real estate sales professionals such

as real estate agents is not only erroneous but such construction creates a latent

ambiguity and, as such, cannot be the basis upon which a temporary injunction can

be sustained. Gallagher Headquarters Ranch Dev., Ltd v. City of San Antonio, 303

S.W,3d 700, 702 (Tex. 2010).

      Alternatively, the term "customer" is referred to in both Section 5(e)(i) and

5(e)(ii) of the employment agreement; but, it is also referred to in the paragraph of

the agreement which excludes the non-solicitation prohibition as to "any customer

of Employee that existed prior to employment with the Company." Therefore, if

the term "customer" is to be construed as including residential homebuilders,


                                         30
residential condominium developers, and other real estate sales professionals such

as real estate agents, then the non-solicitation prohibition does not apply to any

residential homebuilders, residential condominium developers, and other real

estate sales professionals such as real estate agents that Michael Nasserfar or

Michael Task did business with prior to their employment with Ameripro. This is

the clear reading on the agreement; however, the temporary injunction order fails

to include a finding that these "customers" can be solicited because the contracts

exempt these customers from the solicitation restrictions           However, this

construction of the employment agreement is not necessary if the agreement is

correctly interpreted to mean that the term "customer" refers to borrowers and does

not include any residential homebuilders, residential condominium developers, and

other real estate sales professionals such as real estate agents. The intent of the

agreement was only to limit the solicitation to residential loan borrowers of

Ameripro unless Michael Nasserfar or Michael Task were the loan officers for the

residential loan borrowers prior to their employment with Ameripro -- an instance

in the industry known as a refinance. No evidence establishes that neither Michael

Nasserfar nor Michael Task ever solicited loans from any residential loan

borrowers of Ameripro and, thus, if a proper construction of the employment

contract is utilized, there is no legal basis for a temporary injunction prohibiting

the solicitation of "Brohn Homes, Seaholm Residences, and Clark Wilson


                                        31
Builders" (see, Temporary Injunction Order, App. 1; CR 223-227 at 3-4) since

Nasserfar and Task are in complete compliance with all of their lawful obligations

under the contracts as properly construed.

      A "customer" is generally defined as "one who regularly or repeatedly

makes purchases of, or has business dealings with, a tradesman or business."

BLACK'S LAW DICTIONARY 348 (5th ed. 1979). The preferred definition of

"customer" by Webster's New International Dictionary is "one who regularly or

repeatedly makes purchases of, or has business dealings with a tradesman or

business house; one who customarily has dealings with a business establishment."

Ameripro confessed at the temporary injunction hearing that it does not have any

direct business dealings with and does not loan money to residential homebuilders,

residential real estate agents or residential developers. ( RR at Vol. 2 at 109-111).

There are no Texas cases which define a "customer" as one who refers a borrower

to a lender or mortgage company. There is no Texas common-law or statutory law

that would define a mortgage company's "customer" as anyone other than the

"borrower" of money from the mortgage company and there is no statutory or

common law in Texas that would define a mortgage company's customer as a

residential real estate homebuilder, residential condominium builder, licensed real

estate agent or sales agent, or any other professional involved in the real estate

industry. It is clear that the term "customer" in the employment agreements was a


                                         32
reference to borrowers who borrow money from Ameripro -- a company that is in

the business of lending money for the purchase of residential real estate. Id.

Ameripro's contention that residential homebuilders, condominium developers,

licensed real estate sales agents or other professionals in the real estate industry are

its "customers" is without merit, and the district court's construction of the

employment agreements to bar solicitation of residential real estate homebuilders,

residential condominium builders, residential real estate agents or other

professionals involved in the real estate industry is erroneous as a matter of law.

Consequently, the portion of the temporary injunction which prohibits the

solicitation of "Brohn Homes, Seaholm Residences, and Clark Wilson Builders"

(see, Temporary Injunction Order, App.1; CR 223-227) is legally erroneous and

this portion of the temporary injunction should be dissolved because the non-

solicitation provisions apply only to residential loan borrowers, not builders.

                                          III.

THE DISTRICT COURT ERRED IN CONCLUDING THAT
RESIDENTIAL HOME AND CONDOMINIUM BUILDER, AND REAL
ESTATE SALES AGENT CONTACT INFORMATION IS A TRADE
SECRET BECAUSE SUCH INFORMATION IS PUBLIC INFORMATION
AND CAN NEVER BE DETERMINED TO BE A TRADE SECRET, AND IS
NOT THE CONFIDENTIAL AND PROPRIETARY INFORMATION OF
AMERIPRO

      The district court's finding and conclusion that residential home and

condominium builder, and licensed real estate sales agent contact information is a


                                          33
confidential and proprietary trade secret belonging only to Ameripro is erroneous

as a matter of law. The contact information of residential home and condominium

builder, and licensed real estate sales agent is not a secret and is not property of or

a trade secret or confidential and proprietary information belonging exclusively to

Ameripro.     The contact information of residential home and condominium

builders, and real estate sales agents is generally known and is widely and readily

ascertainable by proper means through the public domain. (RR at Vol 4 Plaintiffs'

Exhibits 52-64; RR at Vol. 3 123-126). The contact information of residential

home and condominium builders, and real estate sales agents is easily obtainable

from the websites sponsored and authored by the residential home and

condominium builders, and real estate sales agents, their public advertising, their

marketing brochures, their business cards, Google searches, Bing searches, trade

Association journals, publications and website searches, public offices where they

conduct business, and other publicly available information. Id. It is no secret and it

is not confidential and proprietary information belonging to Ameripro.            And

because it is no secret, and particularly no secret limited to Ameripro, the district

court's conclusion in the temporary injunction order regarding trade secrets is

erroneous.

      To establish that the contact information of residential home and

condominium builders, and real estate sales agents is Ameripro's confidential and


                                          34
proprietary trade secret, Ameripro must prove that (1) it has taken reasonable efforts

to keep the information secret, and (2) that the information has actual or potential

independent economic value to third parties because it is generally unknown and not

readily ascertainable by proper means. Tex. Civ. Rem. Code §134A.002(6)

(emphasis added); Twister B.V. v. Newton Research Partners, 364 S.W.3d 428, 437

(Tex. App. -- Dallas, no pet.). To be protected the confidential and proprietary

information trade secret must be substantially secret and unknown to the public or

not ascertainable by the public using proper means. Wissman v. Boucher, 240 S.W.2d

278, 280 (Tex. 1951).

      The word "secret" means that the proprietary information is not generally

known or readily available to the public and, conversely, information that is generally

known in the industry, readily accessible by independent investigation, or publicly

disclosed is not a secret and is not confidential or proprietary information belonging

only to Ameripro. Interox Am. v. PPG Indus., 736 F.2d 194, 201-02 (5th Cir. 1984);

Sands v. Estate of Buys, 160 S.W.3d 684, 690-91 (Tex. App. -- Fort Worth 2005, no

pet.) (identities of corporation's clients could easily be acquired by others); SCM

Corp. v. Triplett Co., 399 S.W.2d 583, 586 (Tex. App. -- San Antonio 1996, no writ)

(plaintiff's customer list could be compiled by calling physicians and hospital

administrators and asking for the name of their supplier).




                                          35
      Information is "generally unknown" if individuals who would derive an

economic benefit from the information are unaware of the information or cannot

ascertain the information through proper means -- such as public websites, Yellow

Pages, and advertising materials. See, UNIFORM TRADE SECRETS ACT

("UTSA") §1 cmt. Ameripro failed to carry its burden at the temporary injunction

hearing of proving that the alleged confidential and proprietary trade secret

information is not readily ascertainable because it is not available in trade journals,

reference books, published materials, advertising materials or websites. See, Tex.

Civ. Prac. & Rem. Code §134A.002(6)(A) ("CPRC").            In 2013, Texas adopted

the Texas Uniform Trade Secrets Act ("TUTSA") codified at Civ. Prac. & Rem.

Code §134A.001 et. seq. To meet its burden, Ameripro must prove that the alleged

confidential and proprietary trade secret information could not have been

ascertained by independent development, independent research, and not by any

other means that would be proper. See, CPRC §134A.002(4). Prior to the adoption

of the TUTSA, Texas common-law similarly required that the alleged proprietary

information be secret. The proprietary information must have a modicum of

originality to separate it from every day knowledge. Kewanee Oil Co. v. Bicron

Corp., 416 U.S. 470,476 (1974), and information that can be accumulated from the

public domain does not qualify as proprietary and confidential trade secret

information. Brandon v. Copper, 591 S.W.2d 553, 556 (Tex. App. -- Amarillo


                                          36
1979, writ ref'd n.r.e.). Likewise, general skill, knowledge and experience, abstract

ideas, methodologies and practices and procedures required by law do not qualify

as proprietary confidential trade secrets. Numed, Inc. v. McNutt, 724 S.2d 432, 434

(Tex. App. -- Fort Worth 1987, no writ).

      The information that Ameripro contends is a proprietary and confidential

trade secret must not be information generally known or readily available to the

public, and Ameripro did not meet its burden to prove that the information was not

generally known or readily available to the public at the temporary injunction

hearing. Reliant Hosp. Partners v. Cornerstone Healthcare Grp. Holdings, Inc.,

374 S.W.3d 488, 499 (Tex. App. -- Dallas 2012, pet. denied); and, Allan J.

Richardson & Assocs v. Andrews, 718 S.W.2d 833, 837 (Tex. App. -- Houston

[14th Dist.] 1986, no writ). So, for example, information that is generally known

in a particular industry, readily ascertainable by inspection or independent

investigation, or publicly disclosed is not considered a confidential and proprietary

trade secret. Interox Am. v. PPG Indus., 736 S.W.194, 201-02 (5th Cir. 1984);

Sands v. Estate of Buys, 160 S.W.3d 684, 690-91 (Tex. App. --Fort Worth 2005, no

pet.) (identities of corporation's clients could easily be acquired by others and, thus,

is not confidential and proprietary trade secret information); and, Wissman v.

Boucher, 240 S.W.2d 278, 281 (Tex. 1951) (general knowledge available to the

public does not qualify as a confidential and proprietary trade secret).


                                           37
      In addition, Ameripro failed at the temporary injunction hearing to address

several of the factors as set forth in the Restatement (3d) of Unfair Competition

§39 reporter's note cmt. d. First, is the information known outside Ameripro's

business? The court should assess the extent to which the alleged confidential and

proprietary trade secret is information that is outside of the Ameripro's business,

and is information only known to the Ameripro. The court should consider the

extent to which the alleged confidential and proprietary trade secret information is

generally known in the residential real estate market in Austin and the surrounding

communities. Lamons Metal Gasket Co. v. Traylor, 361 S.W.2d 211, 213 (Tex.

App. -- Houston 1962, writ ref'd n.r.e.) (Machines were generally known to the

basket and metal industry and were not a trade secret). Specifically, customer lists

that contain information readily discoverable by independent means would not

qualify as a protectable confidential proprietary trade secret. Numed, Inc. v.

McNutt, 724 S.2d 432, 435 (Tex. App. -- Fort Worth 1987, no writ); (customer lists

could be compiled by calling physicians and hospital administrators and asking for

the name of their supplier and, thus, does not qualify); SCM Corp. v. Triplett Co.,

399 S.W.2d 583, 586 (Tex. App. -- San Antonio 1966, no writ) (the customer lists

could be ascertained by anyone and, thus, is not confidential and proprietary trade

secret information).




                                        38
      Second, what is the level of difficulty to duplicate the information? The

court should assess the ease or difficulty with which others could properly acquire

or duplicate the information. In re Union Pac. R.R., 294 S.W.3d 589, 592 (Tex.

2009); and In re Bass, 113 S.W.3d 735, 742 (Tex. 2003). These factors weigh

heavily in rejecting Ameripro's contention that the contact information of real

estate homebuilders and other professionals in the real estate business is a

confidential and proprietary trade secret belonging only to Ameripro, and

Ameripro failed to prove at the temporary injunction hearing that such information

is a trade secret. The information clearly is not confidential, not proprietary and not

secret. Because of Ameripro's failure to present or offer evidence or to rebut the

public nature of this information, the District Court erred in concluding that there

was any trade secret status to the contact information of real estate homebuilders

and other professionals in the real estate business and, consequently, trade secrets

is an improper basis for granting the temporary injunction.

                                               IV.

THE DISTRICT COURT ERRED IN GRANTING THE TEMPORARY
INJUNCTION BECAUSE AMERIPRO FAILED TO PROVE PROBABLE,
IMMINENT AND IRREPARABLE INJURY CAUSED BY THE PREVIOUS
POSSESSION OF CONFIDENTIAL INFORMATION OF AMERIPRO.

      Where is the probable, imminent and irreparable injury to Ameripro from

Appellants' alleged previous possession of alleged confidential information? No

injury or harm was established by Ameripro at the temporary injunction hearing,
                                          39
and certainly no imminent injury. There is no irreparable injury existing in the

record to support the temporary injunction clauses related to the alleged

confidential information or alleged trade secrets.      Ameripro failed to prove

probable and imminent irreparable injury caused by the previous possession by

Appellants of Ameripro's alleged confidential information. It is improper for the

district court to assume irreparable injury when there is no proof of misuse of

confidential information by Appellants. W.R. Grace & Co. v. Henson, 2007 Tex.

App. LEXIS 6771, 2007 WL 2389547, at *3 (Tex. App.—Corpus Christi Aug. 23,

2007, no pet.). The obligation not to use confidential information also does not bar

a former employee from using the general knowledge, skill, and experience that

the employee acquired during the employment to compete with the former

employer. Rimkus Consulting Group, Inc. v. Cammarata, 255 F.R.D. 417, 443

(S.D. Tex. 2008); Sharma v. Vinmar Int'l, Ltd., 231 S.W.3d 405, 425 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). Here, there is no reason to infer that

Appellants did or would use Ameripro's confidential information because at the

time of the temporary injunction hearing Appellants did not have any confidential

information in their possession (see, RR at Vol. 3 at 122, L21-123,L5; Plaintiffs'

Exhibit 34at RR Vol.4; RR at Vol.3 at 73 L18-78, L1 nad 85, L6-- 86, L23) and do

not need such information in their current positions given their extensive industry

knowledge. See Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459, 469 (5th


                                        40
Cir. 2003) (declining to infer that former employee would probably use the

information).

      The purpose of injunctive relief is to halt wrongful acts that are threatened or

in the course of accomplishment, rather than to grant relief against past actionable

wrongs or to prevent commission of wrongs not imminently threatened. See Tex.

Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 853 (Tex.

App.--Austin 2002, pet. denied). Although an injunction is a preventive device,

injunctive relief is improper when the party seeking the injunction has mere fear or

apprehension of the possibility of injury. Harbor Perfusion, Inc. v. Floyd, 45

S.W.3d 713, 716 (Tex. App.--Corpus Christi 2001, no pet.)

      No legal presumption of use of confidential information exists under Texas

law. Texas courts have declined to apply the inevitable disclosure doctrine when

the former employee does not have possession of confidential information or has

not used any such alleged confidential information with his current employer, M-I,

L.L.C. v. Stelly, 2009 U.S. Dist. LEXIS 65866, 2009 WL 2355498, at * 7 (S.D.

Tex. Jul. 30, 2009); Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d

230, 242 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Ameripro offered no

evidence of any past improper use of any alleged confidential information by

Appellants, and, as a matter of law, there can be no future improper use of

confidential information since the record establishes, without debate, that


                                         41
Appellants no longer possess any confidential information of Ameripro. (RR at

Vol. 3 at 122, L21-123,L5; Plaintiffs' Exhibit 34at RR Vol.4; RR at Vol.3 at 73

L18-78, L1 nad 85, L6-- 86, L23). Ameripro cannot rely upon the "inevitable

disclosure doctrine" to support its burden to prove irreparable harm caused by the

Appellants previous possession of alleged confidential information. There is no

evidence of irreparable harm, or any injury at all, suffered in the past or in the

future by the Appellants previous possession of alleged confidential information of

Ameripro and certainly no injury that is imminent. Therefore, the district court

erred in granting the temporary injunction because there is no probable and

imminent irreparable injury to Ameripro resulting from Appellants previous

possession of alleged confidential information.

      Despite the employment contracts and Texas statutes, Ameripro is still

required to prove imminent and irreparable injury in the interim if a temporary

injunction is not entered. America failed to prove any imminent injury and

certainly no irreparable harm. In 2012, the Dallas Court of Appeals held that

employment contracts and statutes regarding non-compete and non-solicitation

covenants do not replace the common law requirement for injunctive relief that an

applicant show imminent and irreparable injury to obtain a temporary injunction.

Primary Health Physicians, P.A. v. Sarver, 390 S.W.3d 662, 664-65 (Tex. App.—

Dallas 2012, no pet.). The Sarver court then joined its sister courts of appeals in


                                        42
holding that employment contracts and statutes do not preempt the requirements

for obtaining temporary injunctive relief. Id. at 665 (citing EMSL Analytical, Inc. v.

Younker, 154 S.W.3d 693, 695 (Tex. App.—Houston [14th Dist.] 2004, no pet.);

and NMTC Corp. v. Conarroe, 99 S.W.3d 865, 867-68 (Tex. App.—Beaumont

2003, no pet.)). The Sarver court agreed with the reasoning of these cases that

employment contracts in Texas statutes do "not supplant the common law

requirements for a pretrial temporary injunction." Id. Since Sarver issued in 2012,

other Texas courts of appeals have agreed that evidence of a probable, imminent,

and irreparable injury in the interim is a necessary element for a temporary

injunction. See Tranter, Inc. v. Liss, No. 02-13-00167-CV, 2014 Tex. App. LEXIS

3398, 2014 WL 1257278, at *7 (Tex. App.—Fort Worth Mar. 27, 2014, no pet.)

(mem. op.) (section 15.52 does not apply to temporary injunctions); Down Time-

South Texas, LLC v. Elps, 13-13-00495-CV, 2014 Tex. App. LEXIS 3047, 2014

WL 1464320, at *7 (Tex. App.—Corpus Christi-Edinburg Mar. 20, 2014, no pet.)

(mem. op.) (requiring proof of injury). Therefore, an applicant seeking a temporary

injunction must show a probable, imminent, and irreparable injury in the interim

before trial to sustain its burden to be entitled to a temporary injunction. Ameripro

failed to do so.

      There is no evidence in the record of any probable, imminent and irreparable

injury that Ameripro would suffer if a temporary injunction was not entered. In


                                         43
fact, the record establishes, without rebuttal or conflict, that all of the confidential

information alleged by Ameripro was returned to Ameripro prior to the temporary

injunction hearing and no paper or electronic copies of any confidential

information was retained by Appellants. (RR at Vol. 3 at 122, L21-123,L5;

Plaintiffs' Exhibit 34at RR Vol.4; RR at Vol.3 at 73 L18-78, L1 nad 85, L6-- 86,

L23). Since the record conclusively establishes that Appellants, at the time of the

temporary injunction hearing, did not possess any confidential information of

Ameripro, Ameripro has failed to meet its burden to establish a probable, imminent

and irreparable injury in the interim caused by the alleged confidential information,

and the district court abused its discretion in entering a temporary injunction

regarding electronic files, electronic media, and confidential information.

                                          V.

THE DISTRICT COURT ERRED IN GRANTING THE TEMPORARY
INJUNCTION BECAUSE AMERIPRO HAS AN ADEQUATE REMEDY AT
LAW FOR CONTRACTUAL DAMAGES AND THERE IS NO
IRREPARABLE INJURY SUFFICIENT TO JUSTIFY THE TEMPORARY
INJUNCTION.

      The purpose of a temporary injunction is to preserve the status quo of the

litigation's subject matter pending a trial on the merits. Butnaru v. Ford, 84 S.W.3d

198, 204 (Tex. 2002), citing, Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993);

and Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex. Civ. App.-

Dallas 1974, no writ). The Texas Supreme Court emphasized that "[a] temporary


                                          44
injunction is an extraordinary remedy and does not issue as a matter of right",

citing Walling, 863 S.W.2d at 57 and that "[t]o obtain a temporary injunction, the

applicant must plead and prove three specific elements: (1) a cause of action

against the defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim." Butnaru, 84 S.W.3d at 204, citing,

Walling, 863 S.W.2d at 57; and, Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218

(Tex. 1968). The probable injury element requires a showing that the harm is

imminent, the injury would be irreparable, and that the plaintiff has no other

adequate legal remedy. Zamora, 13 S.W.3d at 468.

      An irreparable injury exists if the party injured cannot sufficiently be

compensated in damages or the amount of damages is immeasurable by pecuniary

standards. Id. (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d

398, 401 (Tex. App.--Dallas 1989, no writ)). The contract provisions at issue here

"will not be enforced by an injunction where the party seeking the injunction has

failed to show that without injunctive relief he will suffer irreparable injury for

which he has no adequate legal remedy." Reach Group, L.L.C. v. Angelina Group,

173 S.W.3d 834, 837-38 (Tex. App.--Houston [14th Dist.] 2005, no pet.).

      Although an injunction is a preventive device, injunctive relief is improper

where the party seeking the injunction has mere fear or apprehension of the

possibility of injury. Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d


                                         45
246, 248 (Tex. 1983). A prerequisite for injunctive relief is actual injury, the threat

of imminent harm, or another's demonstrable intent to do that for which injunctive

relief is sought. Tri-State Pipe and Equip., Inc. v. S. Cnty. Mut. Ins. Co., 8 S.W.3d

394, 401 (Tex. App.—Texarkana 1999, no pet.). An injunction will not issue if

damages are sufficient to compensate the applicant for any wrong committed by

the respondent and if the damages are subject to measurement by an ascertainable

pecuniary standard. Tom James Co. v. Mendrop, 819 S.W.2d 251, 253 (Tex. App.--

Fort Worth 1991, no writ), and Minexa Ariz., Inc. v. Staubach, 667 S.W.2d 563,

567 (Tex. App.-- Dallas 1984, no writ). The party requesting the injunction has the

burden of negating the existence of adequate legal remedies. Minexa Ariz., Inc.,

667 S.W.2d at 567; and Cardinal Health, 106 S.W.3d at 235. The burden is on the

applicant (Ameripro) to prove that its damages cannot be calculated, not on the

non-movant (Appellants) to disprove that notion. See Reach Group, L.L.C., 173

S.W.3d at 838. Ameripro failed to carry that burden because it produced no

evidence, either express or implicit, that its damages are simply too speculative to

be calculated and, after the temporary injunction hearing swore that it had nearly

$2 million in damages (CR Supp. 2 filed August 31 2015 at 17) and, additionally,

that it was entitled to disgorgement damages and a reasonable royalty from

Appellants. (See, App. 3,4 and 5 at 3-6,16-17: CR Supp. 2 filed August 31, 2015 at

3-6, 16-17).


                                          46
      Ameripro failed to establish or offer any evidence that Appellants intended

to or were violating any provision of the contract and, specifically, there is no

evidence that Appellants had possession of any of the alleged confidential and

proprietary files (paper or electronic) of Ameripro at the time of the temporary

injunction hearing.    In fact, the evidence establishes, without rebuttal from

Ameripro, that all of the electronic files had been deleted from all electronic

devices of the Appellants prior to the temporary injunction hearing (RR at Vol. 3 at

73 L18-78, L1 and 85, L6 -- 86, L23 -- testimony of Lee Whitfield) and, thus, there

is no basis for the temporary injunction clauses with respect to the paper or

electronic alleged confidential and proprietary records and files of Ameripro. In

addition, Ameripro failed to establish that Ameripro had a probable, imminent and

irreparable injury in the interim that could not be compensated by damages and,

thus, the temporary injunction was improperly granted by the district court.

      A district court abuses its discretion in granting a temporary injunction

unless "it is clearly established by the facts that one seeking such relief is

threatened with an actual irreparable injury if the injunction is not granted." Markel

v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex. App.—San Antonio 1996, no pet.)

(quoting Dallas Gen. Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879

(Tex. 1956)). And evidence of fear, apprehension, and possibilities is not sufficient

to establish any injury, let alone irreparable injury. Id. at 79-80. To demonstrate


                                         47
probable injury or harm, an applicant must show an injury for which there can be

no real legal measure of damages or none that can be determined with a sufficient

degree of certainty, i.e., a non-compensable injury. Marketshare Telecom, L.L.C. v.

Ericsson, Inc., 198 S.W.3d 908, 925-26 (Tex. App.—Dallas 2006, no pet.).

       The party seeking injunctive relief carries the burden to demonstrate an

irreparable injury. See Reach Group, L.L.C. v. Angelina Group, 173 S.W.3d 834,

838 (Tex. App.--Houston [14th Dist.] 2005, no pet.). An injury is considered

irreparable if the party cannot be adequately compensated in damages, or if those

damages are incapable of calculation. Butnaru, 84 S.W.3d at 204; Reach Group,

L.L.C., 173 S.W.3d at 838. Generally, however, courts do not enforce contractual

rights by injunction, because an applicant who may recover breach-of-contract

damages can rarely establish an irreparable injury and accompanying inadequate

legal remedy. Butnaru, 84 S.W.3d at 211; Reach Group, L.L.C., 173 S.W.3d at

838.

       It is improper for a district court to enforce contractual rights by injunction

"because a party can rarely establish an irreparable injury and an inadequate legal

remedy when damages for breach of contract or available." Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 211 (Tex. 2002), citing, Canteen Corp. v. Republic of Tex.

Props., Inc. 773 S.W.2d 398, 401 (Tex. App. -- Dallas, 1989, no writ), and

Chevron U.S.A. , Inc. v Stoker, 666 S.W. 2d 379, 382 (Tex. App. Eastland 1984,


                                          48
writ dism'd). The district court erred in enforcing a contract between the parties

when the legal remedy of damages was available to Ameripro.

      Under common law, the applicant seeking injunctive relief must demonstrate

four elements to be entitled to an injunction: (1) the existence of a wrongful act; (2)

the existence of imminent harm; (3) the existence of irreparable injury; and (4) the

absence of an adequate remedy at law. Devon Energy production company, L.P. v.

McCarver, ____S.W.3d ___, 2015 Tex App. LEXIS 8241, (Tex, App. -- Waco,

August 6, 2015, no pet.), citing, Noell v. City of Carrollton, 431 S.W.3d 682, 712

(Tex. App.—Dallas 2014, pet. denied); Webb v. Glenbrook Owners Ass'n, Inc., 298

S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.); Priest v. Tex. Animal Health

Comm'n, 780 S.W.2d 874, 875 (Tex. App.—Dallas 1989, no writ).

      It is no excuse that §65.001 of the Texas civil practice and remedies code

does not set forth in these elements specifically since the principles governing

courts of equity govern injunction proceedings under §65.001. See, §65.001 ("The

principles governing courts of equity govern injunction proceedings if not in

conflict with this chapter or other law."). And, Rule 693 of the Texas Rules of

Civil Procedure provides that "[t]he principles, practice and procedure governing

courts of equity shall govern proceedings in injunctions when the same are not in

conflict with these rules or the provisions of the statutes." See, TRCP 693.




                                          49
      In Town of Palm Valley Texas v. Johnson, 87 S.W.3d 110, (Tex. 2001), the

Texas Supreme Court rejected the opinion of the Court of Appeals that an

injunction may be granted without a showing of irreparable harm". The court held

that the requirement of equity of showing irreparable harm and a lack of an

adequate legal remedy are prerequisites to obtaining injunctive relief. Town of

Palm Valley Texas, supra, 87 S.W.3d at 111. "For the same reasons as we

explained in Powers, the statute does not permit injunctive relief without a

showing of irreparable harm otherwise required by equity." Town of Palm Valley

Texas, supra, 87 S.W.3d at 111. The Waco Court of Appeals, as recently as August

6, 2015, has affirmed that the Texas Supreme Court "does not permit injunctive

relief without a showing of irreparable harm or injury as otherwise required by

equity." Devon Energy production company, L.P. supra, Tex App. LEXIS 8241

*4, citing, Town of Palm Valley Texas v. Johnson, 87 S.W.3d 110, 111 (Tex.

2001).

      Ameripro failed to establish in the district court, and cannot establish

"irreparable injury" which is a necessary element for a temporary injunction

because Ameripro has an adequate remedy at law -- namely, damages. As held by

the Dallas Court of Appeals, "[i]rreparable injury" is stated to be '"an injury of such

nature that the injured party cannot be adequately compensated therefore in

damages, or that the damages which result there from cannot be measured by any


                                          50
certain pecuniary standard."' Canteen Corp. v. Republic of Tex. Props., Inc. 773

S.W.2d 398, 401 (Tex. App. -- Dallas, 1989, no writ), citing, Chevron U.S.A. , Inc.

v Stoker, 666 S.W. 2d 379, 382 (Tex. App. Eastland 1984, writ dism'd), and

Minexa Arizona, Inc. v. Staubach, 667 S.W.2d 563, 567 (Tex. App. -- Dallas 1984,

no writ). Because Ameripro has an adequate damage remedy, the temporary

injunction was improper and the district court abused its discretion in granting the

temporary injunction.

         "An injury is irreparable if the injured party cannot be adequately

compensated in damages or if the damages cannot be measured by any certain that

pecuniary standard." Devon Energy, supra, Tex App. LEXIS 8241 *4, citing,

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Canteen Corp. v.

Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no

writ).

. Ameripro, the applicant, must establish that there is no adequate remedy at law

for the damages Ameripro seeks. Devon Energy, supra, Tex App. LEXIS 8241 *4,

citing, Millwee-Jackson Joint Venture v. DART, 350 S.W.3d 772, 782 (Tex.

App.—Dallas 2011, no pet.); and Cardinal Health Staffing Network, Inc. v. Bowen,

106 S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

         In Butnaru, the Texas Supreme Court held that the applicant for the

injunction must establish "in the trial court, in addition to the other temporary-


                                        51
injunction elements, and an inadequate legal remedy." Butnaru, 84 S.W.3d at 204,

210. Even in the context of an employment contract not to solicit, the applicant for

the injunction, Ameripro, must still meet its burden of establishing that it has no

adequate remedy at law and that it cannot calculate or establish damages resulting

from the alleged unlawful breach of the contract not to solicit customers "In the

context of a covenant not to compete, a covenant will not be enforced by an

injunction where the party seeking the injunction has failed to show that without

injunctive relief he will suffer irreparable injury for which he has no adequate legal

remedy." The Reach Group, LLC v. Angelina Group, 173 S.W.3d 834, 836-38

(Tex. App. -- Houston [14th Dist.] 2005, no pet.), citing, Tom James Co. v.

Mendrop, 819 S.W.2d 251, 253 (Tex. App.--Fort Worth 1991, no writ). "Courts

generally will not enforce contractual rights by injunction, because a party can

rarely establish an irreparable injury and an inadequate legal remedy when

damages for breach of contract are available." The Reach Group, LLC, 173 S.W.3d

at 838, citing, Butnaru, 84 S.W.3d at 211. ("An injury is irreparable if the injured

party cannot be adequately compensated in damages or if the damages cannot be

measured by any certain pecuniary standard.") Butnaru, 84 S.W.3d at 204; and see

Cardinal Health Staffing Network, Inc v. Bowen, 106 S.W.3d 230, 235 (Tex. App.-

-Houston [1st Dist.] 2003, no pet.)(quoting Butnaru, 84 S.W.3d at 204); Mendrop,

819 S.W.2d at 253 ("An injunction will not issue if damages are sufficient to


                                         52
compensate the plaintiff for any wrong committed by the defendant and if the

damages are subject to measurement by an ascertainable pecuniary standard.").

And Ameripro, the injunction applicant, has the burden to establish that there is no

adequate remedy at law for damages. The Reach Group, LLC, 173 S.W.3d at 838,

citing, Cardinal Health, 106 S.W.3d at 235.

      In W. R. Grace & Co. v. Henson, 2007 Tex. App. LEXIS 6771 (Tex. App. --

Corpus Christie 2007, no pet.), the employee resigned his position with the

employer and accepted a job with one of the employer's competitors. He testified

that he intended to solicit business from customers that he had serviced when

working for the employer, but that he would not disclose any information received

while working for the employer. The employer contended that it would suffer

irreparable injury absent an injunction. However, the appellate court noted that the

employer did not: (1) present any evidence of wrongful acts that were imminently

threatened or in the course of accomplishment, (2) claim that it had lost any

business, or (3) prove that the employee used any confidential information to

solicit business for his new employer. The employer provided no evidence

regarding harm or injuries that could not be remedied through an award of

monetary damages. The Court of Appeals affirmed the district court's denial of the

requested temporary injunction because there was no imminent harm and the




                                        53
applicant for the injunction failed to prove that it's injuries could not be

compensated through the award of monetary damages.

      Here, Ameripro failed to prove that it has no adequate remedy at law if the

temporary injunction is not granted. After the temporary injunction was granted,

Ameripro swore that it had suffered approximately $2 million in damages. But, at

the temporary injunction hearing, Ameripro failed to prove that it cannot recover

its contractual damage claims. The district court erred in granting the temporary

injunction because there was no proof of an imminent and irreparable injury.

Ameripro can proceed with its contractual damages claims; but the temporary

injunction should be dissolved.

                                       VI.

THE DISTRICT COURT ABUSED ITS DISCRETION AND ENTERED AN
OVERBROAD TEMPORARY INJUNCTION IN WHICH THERE IS NO
NEXUS BETWEEN THE ENJOINED CONDUCT AND ANY IMMINENT
AND IRREPARABLE INJURY TO AMERIPRO.

      A district court abuses its discretion when it misapplies the law to

established facts or when it concludes that a temporary injunction should be

granted and such conclusion is not reasonably supported by the evidence. State v.

Southwestern Bell Tel Co., 526 S.W.2d 526, 528 (Tex. 1975). The entry of a

temporary injunction that enjoins lawful as well as unlawful acts is overbroad and

constitutes abuse of discretion. RCI Entm't (San Antonio), Inc. v. City of San

Antonio, 373 S.W.3d 589, 603 (Tex. App. -- San Antonio 2012, no pet.); and,
                                       54
Computek Computer & Office Sups. v. Walton, 156 S.W.3d 221 (Tex. App. --

Dallas 2005, no pet.).

      A temporary injunction must enjoin only those acts that are necessary to

protect the applicant from imminent and irreparable injury and must not enjoin acts

that are unnecessary to protect the applicant during the interim before trial from

imminent and irreparable injury. "[A] trial court abuses its discretion by entering

an overly-broad' injunction which grants 'more relief' than a plaintiff is entitled to

by enjoining a defendant from conducting lawful activities or from exercising legal

rights." Harbor Perfusion, 45 S.W.3d at 717, (citing Fairfield Estates L.P. v.

Griffin, 986 S.W.2d 719, 723 (Tex. App.—Eastland 1999, no pet.); The Republican

Party of Texas v. Dietz, 940 S.W.2d 86, 93 (Tex. 1997); Villalobos v. Holguin, 146

Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948); Ghidoni v. Stone Oak, Inc., 966

S.W.2d 573, 583 Tex. App.—San Antonio 1998, no writ)). A temporary injunction

order that goes further than necessary to protect the applicant from imminent

irreparable injury or that does not comply with applicable law is overbroad and an

abuse of discretion. Matlock v. Data Processing Security, Inc., 618 S.W.327, 329

(Tex. 1981).

      The temporary injunction order entered by the district court is overbroad and

is an abuse of discretion by the court. Clause (i) of the temporary injunction order

requires Appellants "to provide" "forensic images of all original source media that


                                         55
contains or did contain Ameripro files or information (including but not limited to

flash drives, disks, USB storage devices, external storage devices, hard drives, cell

phones and laptops) (hereinafter collectively the "Media") in the possession,

custody or control of Nasserfar, Task, and Gosnay." (App. 1 at 3) This provision is

overbroad and unnecessary to preserve the status quo until trial. The temporary

injunction order does not set forth an explanation of why Ameripro will be

imminently and irreparably injured if the forensic images are not turned over to

Ameripro, and there is no evidence of imminent or irreparable injury that will

occur to Ameripro if the forensic images are not turned over.

      In the same clause (i) of the temporary injunction order, the district court

ordered that "[t]he Media [including hard drives, cell phones and laptops of

Nasserfar, Task and Gosnay which they use every day in their business] from

which the forensic images are made will be preserved and held by" Appellants'

counsel as "attorneys eyes only." In essence, the district court ordered that the hard

drives, cell phones and laptop computers of Nasserfar, Task and Gosnay which

they use in their daily business practices had to be relinquished by them, turned

over to their attorney and held by the attorney without access by Nasserfar, Task

and Gosnay. This provision of the temporary injunction order is unreasonable and

overbroad and an abuse of discretion. The temporary injunction order does not set

forth an explanation of why Ameripro will be imminently and irreparably injured if


                                         56
Nasserfar, Task and Gosnay do not relinquish their hard drives, cell phones and

computers, and there is no evidence of imminent or irreparable injury that will

occur to Ameripro if Nasserfar, Task and Gosnay do not relinquish their hard

drives, cell phones and computers. Ameripro sought this provision of the order to

punish Nasserfar, Task and Gosney for resigning their at will employment with

Ameripro. This provision of the order bears no resemblance to any need for

protection for Ameripro, is overbroad and an abuse of discretion.

      Clause (iii) of the temporary restraining order unreasonably restrains "Oak

Mortgage, [and] employees of Oak Mortgage" from "directly or indirectly,

soliciting business from Brohn Homes, Seaholm Residences and Clark Wilson

Builders." There is no contract or fiduciary relationship between Oak Mortgage

and Ameripro and, thus, no legal justification for enjoining all loan officers and

employees of Oak Mortgage from soliciting business from publicly known

homebuilders. The temporary injunction order does not set forth an explanation of

why Ameripro will be imminently and irreparably injured if loan officers and

employees of Oak Mortgage -- other than Nasserrfar, Task and Gosnay -- solicit

business from publicly known homebuilders -- such as Brohn Homes, Seaholm

Residences, and Clark Wilson Builders -- and there is no evidence of imminent or

irreparable injury that will occur to Ameripro if such actions are not enjoined.




                                         57
      Clause (iii) of the temporary restraining order is also unreasonable and

overbroad because it does not restrict the prohibition on solicitation to the one (1)

year term as set forth in the employment agreements. (App. 6; RR Vol 4 Plaintiffs'

Exhibit 3). The restriction on solicitation, if properly applied and applicable at all,

is limited to one year from the date that Nasserfar, Task and Gosnay terminated

their employment relationship with Ameripro. Id. this portion of the temporary

injunction order is too broad and, if applicable at all, must be limited to one (1)

year from the date of the termination of the employment relationship which

occurred on January 16, 2015.

                                      PRAYER

      For these reasons, Appellants pray that the court dissolve the temporary

injunction.

                                 Respectfully submitted,

                                 /s/ Charles Bundren
                                 WM. CHARLES BUNDREN & ASSOCIATES
                                 LAW GROUP, PLLC
                                 Wm. Charles Bundren, Esq.
                                 Attorney-in Charge
                                 State Bar No. 03343200
                                 2591 Dallas Parkway, Suite 300
                                 Frisco, Texas 75034
                                 (214) 808-3555 Telephone
                                 (972) 624-5340 Facsimile
                                 e-mail:      charles@bundrenlaw.net
                                 ATTORNEY FOR APPELLANTS



                                          58
                          CERTIFICATE OF SERVICE

      The undersigned certifies that on this 17th day of September, 2015, all
counsel of record were served with a copy of this document by serving the
following:

         Susan Burton, Esq.
         State Bar No.      03479350
         GRAVES DOUGHTERY HEARON & MOODY
         P.C.
         401 Congress., Suite 2200
         Austin, Texas 78701
         Telephone: (512) 480-5600
         Telecopier: (512) 480-5862 (facsimile)
         E-mail:            sburton@gdhm.com
         ATTORNEY FOR APPELLEE:


__X__by the electronic filing manager pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a),
9.5 (b) (1), 9.5(c) (4)and 9.5(e),

____ by certified mail return receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5
(a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),


__X__ by email at the email address indicated above pursuant to TRAP 6.3, 9.2
(c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

____ by commercial delivery service deposited with ___________________ on the
date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c)
(4)and 9.5(e),

and/or

____ by fax at the fax number indicated above pursuant to.
TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

                                        /s/ Charles Bundren
                                        Wm. Charles Bundren, Esq.
                                           59
                                       ATTORNEY FOR:
                                       APPELLANTS


                   CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Microsoft

Word and contains 10,967 words, as determined by the computer software's word-

count function, excluding the sections of the document listed in Texas rule of

appellate procedure 9.4(i)(1).

                                 /s/ Charles Bundren

                                 WM. CHARLES BUNDREN & ASSOCIATES
                                 LAW GROUP, PLLC

                                 Wm. Charles Bundren, Esq.
                                 Attorney-in Charge
                                 State Bar No. 03343200
                                 2591 Dallas Parkway, Suite 300
                                 Frisco, Texas 75034
                                 (214) 808-3555 Telephone
                                 (972) 624-5340 Facsimile
                                 e-mail:     charles@bundrenlaw.net
                                 ATTORNEY FOR APPELLANTS




                                         60
              CASE NO. 03-15-00416-CV


             IN THE COURT OF APPEALS
 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS


OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
    MICHAEL E. TASK, AND TYCORD R. GOSNA Y

                       Appellants

                             V.

             AMERIPRO FUNDING, INC.

                        Appellee

        Appeal from the 345th Judicial District Court
                  of Travis County Texas



             APPELLANTS' APPENDIX


                                  Wm. Charles Bundren, Esq.
                                  Attorney-in-Charge
                                  State Bar No. 03343200
                                  2591 Dallas Parkway
                                  Suite 300
                                  Frisco, Texas 75034
                                  Telephone:214.808.3555
                           CERTIFICATE OF SERVICE

      The undersigned certifies that on this 17th day of September, 2015, all
counsel of record were served with a copy of this document by serving the
following:

         Susan Burton, Esq.
         State Bar No.      03479350
         GRAVES DOUGHTERY HEARON & MOODY
         P.C.
         401 Congress., Suite 2200
         Austin, Texas 78701
         Telephone: (512) 480-5600
         Telecopier: (512) 480-5862 (facsimile)
         E-mail:            sburton@gdhm.com
         ATTORNEY FOR APPELLEE:


_X_by the electronic filing manager pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a),
9.5 (b) (1), 9.5(c) (4)and 9.5(e),

_ _ by certified mail return receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5
(a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),


_X_ by email at the email address indicated above pursuant to TRAP 6.3, 9.2
(c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

_ _ by commercial delivery service deposited with                               on the
date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c)
(4)and 9.5(e),

and/or

_ _ by fax at the fax number indicated above pursuant to.
TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1 ), 9.5(c) (4)and 9.5(e),

                                         /s/ Charles Bundren
                                         Wm. Charles Bundren, Esq.
ATTORNEY FOR:
APPELLANTS
              CASE NO. 03-15-00416-CV


             IN THE COURT OF APPEALS
 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS


OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
    MICHAEL E. TASK, AND TYCORD R. GOSNA Y

                       Appellants

                             v.
             AMERIPRO FUNDING, INC.

                        Appellee

        Appeal from the 345th Judicial District Court
                  ofTravis County Texas



             APPELLANTS' APPENDIX




            EXHIBIT 1
                                                     DC             BK15168 PG52
                                                                                          Flied in The District Court
                                                                                           of Tl'lvis County, TtXII


                                                                                        At
                                                                                                JUN 16 2015
                                                                                                       }Q     5Q&.,
                                                                                                                     &
                                             CAUSE NO. D-1-GN-15-000785
                                                                                        Vtlvl L. Price, 0Jttttet Cltrtc
OAK MORTGAGE GROUP, INC.,                                       §         IN THE DISTRICT COURT
MICHAEL H. NASSERFAR, MICHAEL                                   §
E. TASK, and TYCORD R. GOSNA Y,                                 §
                                                                §
                  Plaintiffs I Counter-Defendants,              §
                                                                §
v.                                                              §         OF TRAVIS COUNTY, TEXAS
                                                                §
AMERIPRO FUNDING, INC.,                                         §
                                                                §
                  Defendant I Counter-Plaintiff.                §         3451h JUDICIAL DISTRICT


                                       TEMPORARY INJUNCTION ORDER

         Ameripro Funding, Inc.'s ("'Ameripro") Application for Temporary Injunction, set tbrth

in Defendant and Counter-Plaintiff Ameripro Funding, Inc.'s Counterclaim and Sworn

Application for Temporary Injunction and Permanent Injunction, came on for hearing before the

Court on May 26 and May 27, 2015. Based on the pleadings, the evidence submitted, and the

argument of counsel, the Court finds that Ameripro is entitled to entry of a temporary injunction

against Plaintiffs and Counter-Defendants Michael H. Nasserfar ("Nasserfar"), Michael E. Task

("Task"), Tycord R. Gosnay (''0osnay1'). and Oak Mortgage Group, Inc. ("Oak Mortgage") as

set forth below.

         The Court finds that, based upon the evidence, Ameripro has met its burden to establish

that it has a probable right of recovery and likelihood of success on the merits on its claims for

misappropriation of trade secrets a11d confidential and proprietary infonnation, conversion.

breach of fiduciary duty, tortious interference with contract, and breach of contract, in that

Counter-Defendants Nasserfar, Task, Gosnay, and Oak Mortgage have attempted to permanently

destroy Ameripro documents and files, and have taken from Amcripro's computer network and

premises confidential and proprietary information belonging to Ameripro (including but not


     1111m   llllllllltllllllllllllllllllltlltlllll\111111111
     004074910
                                      DC             Bt'.15168 PG53




limited to Ameripro's pricing information, general ledgers, profit and loss statements, loan

profitability reports, statements of income, customer and referral lists and contact information,

builder preferences or builder contacts or cell phone numbers, pro formas. concession fees,

borrower information, transaction details, templates, loan set-up sheets, e-mails exchanged using

Ameripro servers, correspondence, and other information that had been stored on Ameripro 's

computer network or in Ameripro offices) (hereinafter "Ameripro Information").

       The Court further finds, based upon the evidence, that Ameripro has met its burden to

establish that Ameripro will sufier a probable, imminent, and irreparable injury until trial on the

merits, absent entry of a temporary injunction, in that Ameripro has shown that the full extent of

injury to Ameripro if this Order did not issue would be very difficult to ascertain or quantify. a

future award of damages would not fully or adequately compensate Ameripro, Ameripro does

not have a legal remedy that is adequate in lieu of injunctive relief, and even to the extent that a

legal remedy might be available, its redress will be limited and inadequate. The Court further

finds that the balancing of the equities as between Ameripro and CounterMDefendants Nasserfar,

Task, Gosnay, and Oak Mortgage favors the issuance ofthis temporary injunction, and that this

temporary injunction is necessary to preserve the status quo between the parties pending trial on

the merits.

        IT IS THEREFORE ORDERED that Counter-Defendants Nasserfar, Task, Gosnay, and

Oak Mortgage, employees of Oak Mortgage, and other entities acting or purporting to act in

participation or concert with them, arc commanded forthwith to:

        (i)    within three (3) days ofthis Order, provide to Roy Rector ofR3 Digital Discovery

               (Ameripro's forensic computer expert) forensic images of all original source

               media that contains or did contain Ameripro files or information (including but



                                                 2
                                                                                                       224
                             DC             BK15168 PG54




       not limited to flash drives, disks, USB storage devices, external storage devices,

       hard drives, cell phones, and laptops) (hereinafter collectively the "Media") in the

       possession, custody, or control of Nasserfar, Task, and Gosnay (including in the

       possession, custody, or control of their attorneys and/or Lee Whitfield of Digital

       Discovery), including all bit by bit forensic copies or images. however and

       whenever made, including but not limited to, aU such forensic images stored in

       any of the following formats: EO 1. LO 1. dd, sO 1, ad 1 and/or gho. The forensic

       images of the Media may be reviewed and analyzed by Roy Rector, and by

       outside counsel of Ameripro at Graves Dougherty Hearon & Moody ("Graves

       Dougherty") as Attorneys' Eyes Only under the Agreed Protective Order. and

       Graves Dougherty may show forensic images to in-house counsel tor Ameripro so

       long as the images relate to Ameripro.      The Media from which the forensic

       images are made will be preserved and held by Counter-Defendants' attorney,

       Charles Bundren, as Attorneys' Eyes Only under the Agreed Protective Order. If

       the parties' counsel can agree upon which information contained in the Media

       belongs to the respective parties, without Court intervention, then the parties are

       authorized to return the other party's infonnation to it or him. Ameripro will

       provide to Mr. Bundren forensic images of the three laptops that Counter-

       Defendants Nasserfar, Task, and Gosnay returned to Ameripro on January 15-16,

       2015 (it was stated on the record that those forensic images were provided to Mr.

       Btindren on May 28,2015 at the hearing).

(ii)   desist and refrain from, directly or indirectly, using any of the Ameripro

       Informatfon, including but not limited to any of the Ameripro Information



                                        3
                                                                                              225
                                        DC           BK15168 PG55




                 contained on the Media, and from copying, purging, modifying, or destroying any

                 Ameripro Infonnation (except to make the forensic images for Roy Rector as set

                 forth above in this Order).

         (iii)   desist and retrain from, directly or indirectly. soliciting business from Brohn

                 Homes. Seaholm Residences, and Clark Wilson Builders.

         IT IS FURTHER ORDERED that Ameripro remove any reference to Michael Nasserfar

(e.g.• videos, likenesses) from the Ameripro website.

         IT IS FURTHER ORDERED that the Parties mediate this case no later than sixty (60)

days from the date of this Order. Such mediation shall take place in Austin, Travis County.

Texas and shall be conducted by a licensed attorney agreed upon by the Parties. Costs of the

mediation shall be shared equaJly by Counter-Defendants and Ameripro.

         lT IS FURTHER ORDERED that this matter is set for trial on the merits on February 22,

2016, in the Travis County Courthouse, 1000 Guadalupe Street, Austin, Travis County, Texas

78701.

         In accordance with Rule 684 of the Texas Rules of Civil Procedure, the Clerk shall issue

such temporary injunction order upon Ameripro filing with the Court a bond executed by it and

adequate sureties in the amount of $10,00.00. payable to Counter-Defendants, approved and

conditioned as the law requires and such bond shatl remain on file with the Court, as bond for

this Temporary Injunction Order. The Clerk of the Court shall forthwith issue a temporary

injunction in confonnity with the law and the terms of this order.

             SIGNEDthis /5dayof         ~            ,2015at3.:      l~a.m.~.

                                               ~o&
                                               HON. GISELA D. TRIANA
                                                                               .=:
                                               JUDGE PRESIDING


                                                 4
                                                                                                    226
                                DC            BK.15168 PG56




APPROVED:

GRAVES, DOUGHERTY. HEARON & MOODY, P.C.
401 Congress, Suite 2200
Austin, Texas 78701
(512) 480-5764/Fax (512) 536-9908
       c·-      !'·-o!
By:   ~         ,6J.   L~/if2&..4,.....
      Susan P. Burton
      State Bar No. 03479350
      sburton(Qlgdhm.com
      Eric G. Behrens
      State Bar No. 02050700
      ebehrens@gdhm .com

ATTORNEYS FOR DEFENDANT
AMERIPRO FUNDING, INC.


APPROVED AS TO FORM:

WM. CHARLES BUNDREN & ASSOCIATES LAW GROUP, PLLC
2591 Dallas Parkway, Suite 300
(214) 808-3555/Fax (972) 624-5340

By:------~------------------
      Wm. Charles Bundren
      State Bar No. 03343200
      Charles@bundrenlaw.net

ATTORNEYS FOR PLAINTIFFS OAK MORTGAGE GROUP, INC .•
MICHAEL H. NASSERFAR, MICHAEL E. TASK AND TYCORD R. GOSNAY




                                          5
                                                              227
              CASE NO. 03-15-00416-CV


             IN THE COURT OF APPEALS
 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS


OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
    MICHAEL E. TASK, AND TYCORD R. GOSNA Y

                       Appellants

                             v.
             AMERIPRO FUNDING, INC.

                        Appellee

        Appeal from the 345th Judicial District Court
                  of Travis County Texas



             APPELLANTS' APPENDIX




            EXHIBIT 2
                                                                 7/6/201511:54:50 AM
                                                                                    Velva L. Price
                                                                                   District Clerk
                                                                                   Travis County
                         CAUSE NO. D-1-GN-15-000785                             0·1-GN-15-000785


OAK MORTGAGE GROUP, INC.                     IN THE DISTRICT COURT
MICHAEL H. NASSERF AR,
MICHAEL E. TASK
and,
TYCORD R. GOSNA Y,
                                             345th JUDICIAL DTSTRlCT
        Plaintiffs,

vs.
AMERlPRO FUNDING, INC.,                      IRA VIS COUNTY, TEXAS

        Defendant


      PI.. AINTIFFS' AMENDED NOTICE OF ACCELERATED APPEAL


TO THE HONORABLE COURT:

        1.     OAK MORTGAGE       GROUP~    INC. Michael H. Nassettar, Michael E.

Task and Ty R. Gosnay (all hereinafter refe1Ted to collectively as "'Plaintiffs'')

desire to appeal from the Temporary Injunction Order signed by The Honorable

Gisela D. Triana, Judge Presiding, in the above referenced civi I action on June 15,

2015.

        2.     OAK MORTGAGE GROUP, INC. Michael H. Nassetfar, Michael E.

Task and Ty R. Gosnay appeal to the Third Coutt of Appeals. Austin, Texas.




PLAI~TIFFS'     AMENDED NOTICE 01<' ACCELERATED APPEAL                        PAGEl

                                                                                         233
      3.         The appeal of this case is an accelerated appeal because it is an appeal

of a Temporary Injunction Order pursuant to the Texas Civil Practice and Remedies

Code §51.104(a){4).

                                    Respectfully submitted,

                                    By: /s/ Charles Bundren

                                    Wl\'1. CHARLES BUNDREN & ASSOCIATES
                                    LAW GROUP~ PLLC

                                    Wm. Charles Bundren, Esq.
                                    Attorney-in Charge
                                    State Bar No. 03343200
                                    2591 Dallas Parkway, Suite 300
                                    Frisco, Texas 75034
                                    (214) 808-3555    Telephone
                                    (972) 624-5340    Facsimile
                                    e-mail:     charles@bundrenlaw.net
                                    ATTORNEY FOR PLAINTIFFS

                             CERTIFICATE OF SERVICE

      The undersigned certifies that on this 6th day of July, 2015. all counsel of
record were served with a copy of this document in accordance with Rule 21 a of
the Texas Rules of Civil Procedure by serving the fo11owing:

      Susan Burton, Esq.
      State Bar No.      034 79350
      GRAVES DOUGHTERY HEARON & MOODY
      P.C.
      40 l Congress., Suite 2200
      Austin, Texas 78701
      Telephone: (512) 480-5600
      Telecopier: (512) 480-5862 (facsimile)
      E-mail:             sburton~Dgdhm.com
      ATTORNEY FOR DEFENDANT:


PLAJ~TIFFS
             1
                 AMENDED NOTICE 0}' ACCELERATED APPEAL                            PAGE2

                                                                                            234
_X_by the electronic filing manager pursuant to TRCP 21 a( a)( l ),

__ by certitied mail return receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to TRCP 2la(a)(2),

_X_ by email at the email address indicated above pursuant to TRCP 2la(a)(2).

__ by commercia] de1ivery service deposited with - - - - - - - - on the
date indicated above pursuant to TRCP 2la(a)(2), and/or

__ by fax at the fax number indicated above pursuant to TRCP 2la(a)(2).

                                      is/ Charles Bundren
                                      Wm. Charles Bundren, Esq.
                                      ATTORNEY FOR: PLAINTIFFS




PLAI~TIFFS'   AMENDED NOTICE OF ACCELERATED APPEAL                        PAGE3

                                                                                  235
              CASE NO. 03-15-00416-CV


             IN THE COURT OF APPEALS
 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS


OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
    MICHAEL E. TASK, AND TYCORD R. GOSNA Y

                       Appellants

                             v.
             AMERIPRO FUNDING, INC.

                        Appellee

        Appeal from the 345th Judicial District Court
                  of Travis County Texas



             APPELLANTS' APPENDIX




            EXHIBIT 3
                                                                            7/8/2015 5:03:45 PM
                                                                                              Velva L Price
                                                                                             District Clerk
                                                                                             Travis County
                               CAliSE   ~0. D-1-G~-15-000785                              0·1-GN-15-000785


OAK MORTGAGE GROUP. INC..                        §       IN THE DISTRICT COURT
MICHAEL H. ~ASSERF AR, MICHAEL                   §
E. TASK, and TV CORD R. GOSNA Y,                 §
                                                 §
            Plaintiffs I Counter-Defendants,     §
                                                 §
~                                                §       OF TRAVIS COUNTY. TEXAS
                                                 §
AMERJPRO      FU~DJNG,     INC.,                 §
                                                 §
            Defendant I Counter-Plaintiff.       §       345tn JUDICIAL DISTRICT

          COUNTER-Pl.AINTIFF Al\U:RIPRO FllNDING, INC.'S FIRST
        AMENDED COUNTERCLAIM AND S\VORN APPLICATION FOR
     TEMPORARY AND PERMANENT INJllNCTION, AND AMENDED ANSWER

TO THE HONORABLE JUDGE OF SAID COURT:

       AMERIPRO FUNDING, INC. C'Ameripro''l respectfully files this its First Amended

Counterclaim and Sworn Application for Temporary and Permanent Injunction, complaining of

Counter-Defendants Michael H. Nasscrl11r, Michael E. Task, and Tycord R. Gosnay ("Individual

Counter-Defendants") and Oak Mortgage Group. Inc. ("Oak Mortgage"). and An1cndcd Answer.

       TI1is Court entered a Temporary Restraining Order on May II, 2015 (the "TRO''), and a

Temporary Injunction on June 16, 2015 (the ..Temporary Injunction"}, based on Counter-

Defendants' theft of Amcripro's confidential information. violations of contractual non-

solicitation provisions, and other misconduct as described in those orders and detailed below.

Amcripro requests that the Court issue permanent injunctive relief lo restrain Counter-

Dercndants from engaging in similar misconduct, in addition to disgorgcmcnt and other relief set

forth herein. Amcripro would respectfully show the Court the following.

A.     Introduction: Counter-Defendants' breach of fiduciary duty. misappropriation and
       conversion. and breach of contractual ownership and non-solicitation provisions.

       1.     Amcripro is an Austin-based residential mortgage lender.          The Individual

Counter-Defendants are lormer employees who \vorkcd at Amcripro 's branch office in Lakeway,


                                                                                                     3
Texas. Nasscrfar served as Branch Manager fCJr the Lakeway branch. Task served as Sales

Manager and co"managed the branch. Gosnay was a loan oniccr and agent or Amcripro. Each

of the Individual Counter-Dcrcndants owed formal fiduciary duties to Amcripro during his

employment with the company.

       2.      On January 15-16, 2015, the Individual Counter-Defendants abmptly resigned

from Amcripro without prior oral or wl"itten notice. The following Monday, they opened a new

branch office for Ameripro's competitor, Oak Mortgage, two streets away.

       3.      Amcl"ipro subsequently discovered that the Individual Counter-Defendants had

been secretly transmitting copies of its confidential records to Oak Mortgage, beginning over tlt'o

months before they resigned.     Oak Mortgage scanned and downloaded copies of Amc1ipro

reports onto its own computer network.       Under contract, common law, and statute, all such

records were the exclusive properly of Amel"ipro, and the Individual Counter-Detcndants were

ban·ed from taking or disclosing that infom1ation, let alone to a competitor.

       4.      Over one month before they resigned, the Individual Counter-Defendants secretly

reached an agreement under which Oak Mortgage would pay their legal expenses "in the event a

law suit is lilcd" against them by Ameripro.       The Individual Counter·Dcfendams continued

working as fiduciaries to Amcripro, however. and used lhcir position of trust with Amcripro to

funnel confidential information to their future employer.       By the time they resigned (rom

Amcripro. the Individual Counter-Defendants had assembled and taken thousands of Amcripro

financial spreadsheets, inlcmal reports, and borrowct· data (which they loaded onto thumb drives

and cxtemal storage devices), as well as a bankers box full of Amcripro ·s internal monthly

general ledgers, loan profitability reports, pro formas. statements or income, lcdcrally-protcctcd

lists of Amcripro borrowers, and other conlidcntial property       or Amcripro.    The Individual

Counter-Defendants deleted hundreds of files and e-mails from Amcripro compuLers, including



                                                                                                      4
approximately 911 customer files which Task deleted trom an Amcripro-issucd laptop.

       5.      The Individual Counter-Defendants also began working in concert with Oak

Mortgage to solicit customers and divert business away lrom Amcripro, again whik they were

still employed and under tiduciary obligations to Amcripro. Five weeks before the Individual

Counter-Defendants resigned from Amerlpro, Oak Mortgage e-mailed Nasser1ar and Task that

·•vou can maintain and solicit to your book of business, and your buildcr:realtor relationships.

You can maintain and solicit to your past customer database."           In direct violation or their

fiduciary obligations. the Individual Counter-Defendants proceeded to solicit business secretly

on behalf of Oak Mortgage, even while they continued their employment with Ameripro.

       6.      For example, Nasscrlar c-mailed Oak Mortgage personnel several weeks before

his resignation from Ameripro, to report on his progress in "dropping in on all builder contacts.''

During Nasscrtar's employment with Amcripro, Oak Mortgage sent him "scripts" to usc in

contacting "All previous clients & database," ··Borrowers in Pipeline," and "Realtors in

Pipeline." Gosnay forwarded an internal Amcripro compilation of customer contacts and closing

preferences to his personal gmail account. lor later usc at Oak Mortgage, Still other texts and c-

mails show that the Individual   Counter~Ddendant-;   were secretly communicating with Ameripro

customers about their plans to open a competing branch office with Oak Mortgage. even \vhile

still employed with Ameripro.

       7.      Counter-Defendants' conduct violated multiple duties and prohibitions imposed

on them by contract, statute, and common law. The fact that the Individual Counter-Defendants

began disclosing confidential information to a competitor and soliciting on its behalf even be!'ore

they resigned is particularly unconscionable in light of the fiduciary obligations they still owed to

Ameripro.    Oak Mortgage not only aided and abetted those breaches of liduciary duty, but

specifically pressed the Individual Counter-Defendants to supply it with copies or intemal

                                                 3
                                                                                                        5
con tidential data, and provided scripts and other assistance to help Amcripro 's fiduciaries divct1

customers and business opportunities         to   Oak Mortgage.' The Individual Countcr-Dctcndants'

fiduciary duties, independent of the contractual non-solicitation and non-disclosure clauses they

signed, barred them lium engaging in such conduct.

        8.       The infonnation which Counter-Defendants stole provided a detailed blueprint of

the business operations or Amcripro's Lakeway oflicc, which enabled Counter-Defendants to

open a new competing branch in a single business day, less than one-quarter mile awuy. Leaving

aside the confidential nature of its inl(m11ation, Amcripro invested considerable time and

expense in developing the multitude of detailed financial records, spreadsheets. data

compilations, and proprietary forms. By unlawfully taking all of that work product. Counter-

Defendants not only misappropriated Ameripro 's property, but also Ameripro's investment of

time and money in creating it By acting in !lagrant disregard of their fiduciary duties over a

period of several months, Counter-Defendants succeeded in destroying the business operations at

Amcripro's Lake,vay branch, and usurping it for themselves.

        9.       As a consequence of Countcr-Dctcndants' multiple statutory, common law, and

contractual violations, Ameripro seeks actual and punitive damages against Counter-Dercndants

(including the remedy of disgorgemcnt from all Countcr-Dcfcndants),2 and permanent injunctive

rclicC as detailed below.

 1
   Fitlelity Nat. Title ins. Co. v. Hean ol Tex. Title Co., :2000 WL 13037 *6 (Tex. App.-Austin Jan. 6,
2000. pet denied) (not design. pub!.) (company 1.mgag\]d in fhlUd and "participated in or conspired to
commit a breach of fiduciary duty" when it "actively encouraged Margos to recruit her co-workers whtk
she was still employed" by a ditTcrcnt entity).
  :In re Longview Ener:s.Y Co.,_ S.W.3d -' 2015 WL 2148353 *5 (Tex. 2015} ('"Disgorgement is an
equitable tbrtciturc" applicable if a fiduciary agent ~..:ompctcs with the principal, or usurps an opportunity.
or divctts an opportunity fi:om the principal, or breaches the ''relationship of trust." "The remedy
discourages disloyalty and strengthens fiduciary rdationships by 'strip[ping] the defendant of a wrongful
gain.'"); .ERI Consult. Engrs., Inc. t .. Swinnea, 31 X S.\V.3d R67. R73 (Tex. 2010) (same, and ewn if a
fiduciary did not obtain a benefit, he "may be required to tbrfcit the right to compensation" for his work);
Rcstarement (Th1rd) of Restirution and Unjust Enrichment §§ 40. 43 (conversion. breach of duty).

                                                       4
                                                                                                                  6
B.      Background facts in support of Ameriprois equitable and legal claims, and answer.

        10.     Arneripro is a residential mortgage lending company. By the nature of its lending

business, Amcripro receives loan applications, social security numbers, credit reports, tax

records, asset descriptions, and other private information of consumers.

                               lndiv;dua/ Counter-Delendams ' access
                               to Ameripro 's co'!fidentia/ information

        Il.     Ameripro and its employees are required by law to protect the confidentiality of

such consumer information under the Gramm-Leach-Bliley Act of 1999, Rcgulatjon P, and other

applicable federal and State regulations which guard the J>rivacy of consumers.;

        12.     For example, under Regulation P, any "list, description, or other grouping'' of

consumers derived in whole or in part from nonpublic sources (such as borrower lists that

Ameripro compiles from its loan records or computer files) is federally protected infon11ation

and may not be disclosed, even if the same lisL could have been derived from publicly available

infonuation.    In the course of their employment with Amcripro, the Individual Cmmlcr-

Defendants served as loan originators for Amcripro, and were given access to mortgage

applications, consumer credit scores, loan documentation, fists of Ameripro borrowers and their

loan nun1bers, and other consumer inl(mnation maintained on Ameripro's network which is

con1idential by statute.

        13.     Counter-Defendants were also given access to Ameripro's confidential and

proprietary infmmation, including monthly general ledgers, profitability reports, and pro fonnas.

The detailed financial and customer infom1ation in Amcripro's internal reports is not generally

known to its competitors, and gives Amcripro a competitive advantage in the marketplace.



 3
   Chapter 94 of the Orarnm-Leach-Biilcy Act of 1999 ("Privacy - Disclosure of Nonpublic Personal
lnfommtion'') is codified in patt at 15 U.S.C. § 6RO L er seq. Regulation P iscoditicd at I 2 C.P.R.§ I016
(Dec. 21.2011 ). etseq.

                                                    5
                                                                                                             7
Disclosure of that data to a competitor, such as Oak Mortgage, would enable it to assess the

economic viability of opening an office in the same locale, and to replicate Amcripro's business

operations and jumpstart a competing branch. That is in fact what Counter-Defendants did.

                       Under both contract and common law, Ameripro
                         is the e::.:c/usive owner of'such information

       14.    In sworn testimony, Counter-Defendants admitted that the records they took from

Ameripro were confidential, that they had not obtained those records from any public source, and

that they instead downloaded or printed them from Amcripro 's password-protected computers.

       15.    Each of the Individual Counter-Defendants signed multiple contracts with

Ameripro. however, in which they agreed that Ameripro is the sole owner of all such property.

Attached as Exhibit A is a Hst of excerpts from a portion of the contracts that the Individual

Counter-Defendants signed with Ameripro, in which they contractually agreed:

              (a)   that Amcripro is the exclusive owner of all infom1ation to which they were

                    given access during their employment or which they themselves created,

              (b)   lhat all of their work product falls within the "work made for hire" doctrine

                    and is owned exclusively by Ameripro,

              (c)   that in the event Ameripro is not already deemed the sole owner of all such

                    information, the Individual Counter-Defendants conlractua!ly assign to

                    Ameripro any and all right, title, and interest they may have in any of the

                    information, again vesting exclusive ownership in Amcripro, and

              (d)   that they will not disclose that infonnation or use it for any purpose other

                    than pertbm1ing their duties at Ameripro, and upon the tennination of their

                    employment the Individual Counter-Defendants would return all copies of

                    Lhat infom1ation   to   Amcripro, and would not retain, usc, or disclose any

                    copies or extracts for any purpose.
                                                  6
                                                                                                    8
           16.    The Individual Counter-Defendants also contractually agreed that ..all leads and

loans in process are Company's property," that they will not ''take any action to divert such loans

to a competitor or away fi·om Company." and that upon termination they would provide a

"'written account of any and all open leads. business prospects, and/or loans in process as of the

date" of his tem1ination.

           17.    The contracts which the Individual Counter-Defendants signed supplement the

protections that Amcripro has in its business information under common law.           Even in the

absence of an enforceable contractual restriction, the Individual Counter-Defendants and those

acting in concert with them arc barred wtder Texas common law "from using for [their] own

advantage, and to the detriment of [their] fom1er employer, confidential infom1ation       m: trade
secrets acquired by or imparted" to them in the course of their employment. 4

           18.    Likewise, even if any portions of Amcripro's confidential repons could

potentially have been derived from researching public records, Cowtter-Dcfendants were barrcd

from taking a shortcut and copying Ameripro 's compilations of that data. under both common

Jaw and the terms of their contracts. At common law, ..The question is not 'how could he have

secured the knowledge?' but 'How did he?''' Here the Individual Cowtter~Defendants admitted
                                               5



that the information they took from Ameripro could not be tbund publicly. and that they copied it

from Ameripro's protected computer network rather than from any public source.

                             Individual Counter-Defendams also entered
                            into enjr)rceahle non-solicitation agreements

           19.    The Individual   Counter~Defcndants'   contracts with Amcripro also contain

statutorily enforceable provisions which bar Lhcm from soliciting Ameripro customers and


 4
     See. e.g., Hill v. McLmze Co., Inc., 2011 WL 56061 at *2 (Tex. App.-Austin 2011. no pet.) (not
design. publ.).
 ~   ld.

                                                   7
                                                                                                      9
employees after their termination from the company. 6              Those provisions arc independent of

common law safeguards which bar employees (and certainly fiduciaries) from soliciting for a

competitor during ct11ployment. 7 Nasserfar's and Task's employment agreements provide:

         "For a period of one year following the termination of the Employee's employment
         with the Company, the Employee agrees that he will not, directly or indirectly, for
         his benefit or for the benetlt of any other person, finn or entity, do any of the
         following: (i) solicit from any customer, payor or supplier doing business with the
         Company as of the Employee's tcnnination, business of the same or of a similar
         nature to the business of the Company with such customer, payor or supplier; (ii)
         solicit from any known customer, payor or supplier of the Company business oflhe
         same or a similar nature to that which has been the subject of a known written or
         oral bid, offer or proposal by the Company, or of substantial preparation \\-ith a
         view to making such a bid, proposal or o1Ter, within six months prior to the
         Employee's termination; (iii) recruit or solicit the employment or services ot: or
         hire, any person who was known to be employed by, or a consultant of, the
         Company upon tennination of the Employee's employment, or within six months
         prior thereto, or (iv) otherwise knowingly interfere with the business of the
         Company.''

The only exception to the contractual          non~solicitation   provision was for a person who had

already been a ..customer" of the employees prior to his employment with Amcripro (even then,

in light of their conunon Jaw fiduciary duties, they could not solicit any such preexisting

customers on behalf of themselves or for a competitor while they were still employed with

Ameripro).

         20.     On social media, Nasscrfar represented to the public that Amcripro's customers

include ''3 Texas based builders" for whom Amcripro was the lender (and for whom Nasserfar

 6
   The non~solicitation clauses arc also cnfon.:cable under Tex. Bus. & Comm. Code§ l 5.50, et seq. The
employment agreements promised access to confidential intbrmation. Once these employees were given
such access (including confidential customer files and Ameripro tinancial records), they became bound by
their reciprocal promise not to usc or disclose such information. 111at satisfied rhc "otherwise enforceable
agreement" provisions under Section 15 .50. Excerpts of those reciprocal agreements arc quoted in
Exhibit A to this pleading. The Texas Supreme Court expressly held that "clients' names. billing
infonuation, and pertinent tax and financial information'' constitut~~s confidential infmmation for purpost.::s
of enforcing non-compete provisions under Section 15.50. Mann Fmnkfort Srt:in & Lipp Advisors t•.
Fielding, 2g9 S.W.3d 844, 851 (Tex. 2009) (accounting). That holding applies with greater force here, in
light of the federal regulations which make client mortgage information confidential as a matter of statute,
in addition to Amcripro's OV\11 financial records to which Individual Counter-Defendants also had access.
     Fideli~J', 2000 WL 13037 *6; ERI, 318 S.W.3d at 873; Longview. 2015 WL 2148353 *5 (Tex. 2015).
 7



                                                      8
                                                                                                                  10
claimed to have built a "builder-centric'' model "developed here at Amcripro"), and "builder

partners and other referral groups" whom he stated had       a   "seamless & successful" mortgage

relationship with Ameripro.      Likewise, Task admitted under oath that the non-solicitation

provisions of their contracts barred them from soliciting from Ameripro 's builder and realtor
                8
referral sources, and publicly represented that multiple developers were ·'clients'' of Amcripro.

       21.     Similarly, Gosnay's ''Employment, Confidential Information and Invention

Assignment Agreement" with Ameripro provides the following         non~solicitalion   clause:

       "Interference. I agree that during the course of my employment and for a period of
       18 months immediately following the tcm1ination of my relationship with the
       Company tor any reason, whether with or without cause, at the option either of the
       Co()mpany or myself: with or without notice, I will not, either directly or indirectly,
       interfere with the Company's relationships with any customers or clients of the
       Company whom I served or othcrv.:ise had direct contact with during the course of
       my employment. ln the event that I violate my obligations under this paragraph, I
       agree that the 18~month time period will be extended by a period of time equal Lo
       that period beginning when I began violating my obligations under this paragraph
       and ending when the activities constituting such a violation came to an end."

Similar to Amcripro's contracts with Nasserfar and Task. Gosnay's contract also prohibited him

trom soliciting any employee of Amcripro for 18 months after his employment terminated.

                      Cotmter-D~f(mdanrs · th~ti r~(Ameripro 's confidential
                 b~formation   commenced months befiJre the employees resigned

       22.     Counter-Defendants knew that their contracts with Ameripro barred them !rom

using, disclosing, or retaining copies of Amcripro's confidential records. and from assisting a

competitor while still employed with Amcripro, When Gosnay was offered a job in Febmary

2014, Nasserfar even called special attention to those provisions of his contract, writing:

       "Employee Confidentiality and Assignment of Inventions Agreement. As with all
       Company employees, you will be required as a condition of your employment with
       the C.ompany, to sign the endosed standard Employee Confidentiality and


  & Transcript of the May 11, 2015 hearing on Arneripro's TRO application, at 49-50.    The same
testimony was introduced into evidence at the May 26-27, 2015 hearing on Amt.--ripro's Temporary
lnjw1ction application.

                                                 9
                                                                                                    11
        Assignment of Inventions Agreement."

Nasserfar also advised Gosnay in writing:

        "In addition, while you render services with the Company, you will not alisist any
        person or entity in competition with the Company, in preparing to compete with the
        Company or in hiring any employees or consultants of the Company."


        23.     Less than one year alier Nasscrfar wrote those words, all three Individual

Counter-Detbndants consciously violated those provisions of their contracts and their fiduciary

obligations. Oak Mortgage actively encouraged and participated in those breaches of duty.

        24.    Oak Mortgage e.-mailed Nasser(ar on October 30, 2014. asking him to provide

Oak with documents showing the ''currem year's sales production (unil'> & volume)" and the

"previous year's sales production (units & volume)" for Amcripro's Lakeway branch. Nasserfar

the same day e·mailed those totals for both years to Oak Mortgage, beginning a stream of

confidential information that he relayed to Amcripro's competitor over the next 2'lz months.

        25.    Nasserfar understood that his secret communication of confidential information

with Oak Mortgage subjected him to liability, and understood that his contracts with Amcripro

barred him from soliciting from referral sources.        As part of the same October 30 e-mail

exchange, NasserJar gave Oak Mortgage a list of his "Concerns," which included "Lose Centcrra

builder account. Lose Brohn accoWll. Lose some PLR realtors. Lawsuit. Non compete clause.

Old client list with no contact to." Nasserfar also listed "Ramp up time" as one of his concerns.

Nonnally. setting up a new branch office would take several weeks (and typically months) to

accomplish. Over    2 1,~   months before Nasscrfar resigned from Amcripro, he and Oak Mortgage

were already discussing the ramp-up time to set up a competing office. CountcrMDefcndants,

however, ended up skipping the nom1al ramp-up rime by simply copying and downloading

Ameripro 's ledgers, reports, client lists, and even its proprietary templates and lonns.


                                                  10
                                                                                                    12
         26.       On November 12, 2014. tor example~ Oak Mortgage's senior vice president c·

mailed Nasscrfar that ''I will need some more information from you." and asked Nasscrfar to

provide multiple categories of internal Ameripro documents by t11at weekend. TI1e items Oak

Mortgage insisted upon included Amcripro's '"Year to Date P&L and Last Year's P&L,"

Amcripro's "J>roduct Mix" with a breakdown of units and volume for each type of loan product,

other Arneripro staff member's "Compensation" (even if Nasscrfar did not anticipate trying to

solicit them to leave), and Ameripro "Pricing'' for three "scenarios/deals" that Nasserfar was

working on at the time so that Oak Mortgage "can compare it to our pricing."                     Counter-

Defendants sought that infom1ation for Ameripro's Lakeway branch in particular, as they went

Jbrward with their plans to set up a competing office in the same location.

         27.    The following Monday, November 17, 20 J4, Nasser far gave Oak Mortgage a

copy of Ameripro's internal loan prolitability report at a meeting in Dallas. That report not only

supplied Oak Mortgage with confidential itemized fees and profits for Amcripro's office for the

preceding year, but also a year-to-date lisl of all or the names of borrowers and account numbers
                   9
for that branch.       Oak Mortgage's CEO scanned a copy of the report onto his computer the same

day. The Individual Counter-DeJendants also provided Oak Mortgage with an electronic copy of

an Ameripro loan profitability report, which Oak Mortgage's senior vice president loaded onto

his computer as well.

         28.    Oak Mortgage gave Nasscrfar a job description which stated that one of his duties

at Oak Mortgage would be to "[e]stablish" and manage the budget for Oak Mortgage's new

Lakeway branch. The Individual Counter-Defendants admitted in testimony that they supplied
     1
 '  The loan profitability rcporr was compiled from nonpublic loan tiles. That by itself would bar
disclosure under Regulation P, even if borrower names could have been obtained by searching deed
records. Moreover. even if Nasscrfar had compiled a list from public sources (he admitted he did not).
Regulation P also barred him from disclosing it ''in a manner that indicates that any ofth.: individuals on
the list is a consumer of a financial institution," such as Ameripro. The nonpublic intbtmation in the
report. such as fees paid by the individual consumers. also barred its disclosure to Oak Mmigagc.

                                                    11
                                                                                                              13
Oak Mortgage with copies of every monthly general ledger report tor 20 I4, giving a blueprint of

every budget item for Ameripro's Lakeway branch for the entire year, including itemized

expenses and credits.    Like the other confidential information they took, that data was not

available from any public source, and instead was printed from Ameripro's computer network.

The lndividual Counter-Defendants continued funneling intormation to Amcripro 's competitor

over the following months, including a list of borrowers whose loans were still pending.

       29.     In the days immediately before they resigned from Amcripro, Counter-Defendants

intensilied their thefis of Ameripro conlidential intl."lmlation.   In order to obtain access to

Amcripro's financial infonnation on the Accounting for Mortgage Bankers (AMB) network, a

person must usc his or her password to log onto Ameripro's computer network, and while logged

into that network, usc a second password to Jog onto the AMB network. As a Branch Manager,

Nasscrfar was the only employee at Ameripro's Lakeway office who had been given a second

password to log into the AMB system. The week they resigned, however, Nasscrfar and Task

jointly printed copies of Ameripro 's financial records from AMB, to take with lhcm Lo their new

Oak Mortgage office.     They printed and downloaded Amcripro's internal records, including

general ledgers, profitability reportS, pro lotmas, borrmver records, and statements of income.

       30.     In addition to taking electronic copies ofcontidential records on thumb drives and

external storage devices, they took a bankers box    or Ameripro internal   reports and personnel

files when they resigned.    Task admitted he later gave the bankers box to Gosnay at Oak

Mortgage's new offices, for him to scan as welL        Among several thousand other Amcripro

reports, Nasscrlar downloaded copies or loan profitability reports for 2012,2013, and 2014 fium

Amcripro's computers, giving details of the fees and associated profits lor Ameripro during

those years in the same location where Oak Mot1gagc planned to open a competing office,

       31.     Some of' the most serious examples        or   Counter-Defendants' thefls include

                                                12
                                                                                                    14
electronic copies of credit reports for Ameripro borrowers (listing the borrowers' social security

numbers, bank account numbers, and credit scores), and borrowers' loan applications (listing

their social security numbers, employers, income, and other protected consumer infom1ation).

Counter-Defendants also removed copies of personnel records for other Ameripro employees,

including salary information. They admitted that they had no excuse fbr taking such legally

protected consumer and personnel records with them upon their termination from Ameripro.

        32.     At least as early as December 10, 2014, Gosnay likewise began sending copies of

proprietary templates and fom1s from Ameripro's computer network to Gosnay's personal gmail

account, to use at Oak Mortgage. In one blatant example, Oak Mortgage forgot to remove

Ameripro's address at the boitom of the rcmns, before using the same template for Oak's new

office. By Januaty 13, 20 l 5, just two days before he resigned from the company, Gosnay was

still logging onto his computer at Ameripro and transmitting its confidential infommtion to his

personal gmail account, including details of Ameripro's client concession fees, builder contacts

and cell phone numbers, clients' title company preferences, transaction details. and other

compilations contained in Amet'ipro computer files, and additional proprietary templates and

tbm1s that Ameripro developed lor its business and maintained on its computers. 10 Gosnay then

tried to permanently delete that evidence on Amcripro's computer, including copies of his

forwarded e-mails. bclbre returning the laptop to Ameripro.


  w Counter-Defendants have made the irrelevant argument that the identities of builders is information
that can be publicly obtained. CoU11ter-Dcfcndanrs' argument fails to insulate them from liability in at
least three respects. First, Counter-Defendants took Ameripro's llQD.-public compilation, which in tum
included non-public details such as pricing, builder preferences. cell phone numb~rs. and contact
information. Second, even as to any intom1ation that could have independently compiled thlm public
records, they chose instead to log onto Amctipro computers and take Ameripm 's compilation\·. Their
misappropriations sound in both tort and contract. Bancserrices Group, Inc. v. Strunk & Assoc.. 2005
WL 2674985 *3 (Tex. App. -Houston (14th Dist.]2005, pet. denied) (not design. pub!.) (mere fact that a
person supposedly could obtain the same information through legitimate means docs not deprive its
owner of recourse "from those who would secure possession of it by unfair means,'' including taking thm1
a computer to usc in a competing business). Third, the nmHolicitation provisions of their contracts bar
them from soliciting those customers, regardless whether they usc confidential infonnation in doing so.
                                                  13
                                                                                                           15
                           Solicitatton   ofcustomet~\·.for a   competitor. even
                            while still serving as .fiduciaries for Ameripro

        33.     As Nasserfar previously wrote Gosnay, dw·ing the Individual Counter~

Defendants' tenure with Ameripro they were not penniitcd to assist anyone ''in competition with

the Company;• or "in preparing to compete with ihe Company." In addition to transmitting

confidential infhnnation to Oak Mortgage, however, the Individual Counter-Defendants began

soliciting business on Oak Mortgage's behalf even while they were still emplo.ved at Amcripro.

        34.     Over one month before the Individual Counter-Defendants resigned ti·om

Ameripro, Oak Mortgage advised the Ameripro employees that they can ''solicit to your book of

business, and your builder/realtor relationships," and that they that they can ''solicit to your past

customer database." As a further encouragement tor the Individual Counter-Defendants to begin

acting against their principal, the following day Oak Mortgage agreed to indemnify the

employees if they were later sued by Amcripro. One week later, Nasscrfar compiled and c-

mailed Task a list of contact names for several of Amcripro's primary builder clients, including

Ccnterra Homes and Brohn Homes, and a lew days later, reported to Oak Mortgage that he was

driving 200 miles and "dropping in on aU builder contacts.'' (Nassertar reported that progress to

Ameripro's competitor, not to his employer Ameripro.)

        35.     By January 6, 2015, Oak Mortgage had sent Nasserlar scripts to use for

"Borrowers in Pipeline," "Rea) tors in Pipeline," and "All previous clients & database," including

the advantages of his moving to Oak Mortgage -            again while Nasserfar was still employed at

Amcripro. 11 Nasserfar also advised existing Amcripro customers of their plans to open a new


 11
    Counter- Defendants argued at the Temporary Injunction hearing that •·customer" as used in the non-
solicitation clauses of their contracts is limited to ''boJTowers.'' In testimony, however, they had
previously admitted that "customer" as used in the contracts include the builders which fom1ed the core of
Amcripl'O's business for that branch, and made similar admissions in social media and in c-mails.
including in Nasserfar's e·maillist of"'Conccn1s" quoted above. The Court rc;jectcd Counter-Defendants·
overly narrow det1nition. Even under Coumer-Dctlendants · definition. however, their conduct shows that
                                                    14
                                                                                                             16
Oak Mortgage office, and exchanged texts with builder personnel about standing down until his

resignation notice was received. (As discussed below, Task destroyed his text conmnmications,

erasing evidence of similar communications he had with Ameri pro customers.)

        36.     While they were still employed in management positions for Ameripro, Nasscrfar

and Task also set up meetings with builder customers and business prospects on behalf of Oak

Mortgage. While still Ameripro employees, they even began scheduling meetings to occur ajter

they resigned, again for the bene lit of Oak Mortgage.

        37.     Even if no contractual non-solicitation existed at all, Counter-Defendants'

conduct in secretly soliciting Ameripro customers -·"-during a time when they were still serving

in fiduciary roles for Amcripro -is a plain violation of Texas common law. l11eir thcll of

Ameripro's confidential information also assisted them in soli.citing Amcripro clients, enabling

them to open a competing office in just one business day, instead of the months it would

normally take to ramp up an ollicc and begin operations.. Although the Individual Counter-

Defendants were contractually required to give Ameripro a "written account of any and all open

leads, business prospects, and/or loans in process as of the date" of his tcm1inaLion, they also

breached that provision and ialled to provide any such list. After they resigned, they refused to

return calls from Amcripro or otherwise cooperate about upcoming closings, disrupting the

closings that were still in progress and injuring Ameripro's goodwill and builder relationships.

                            Counter-Dej(mdams ·destruction ofjites and
                            evidence, including after issuance of the TRO

        38.     Counter-Defendants also engaged in destruction of Ameripro files and evidence.



they made no pretense of trying to comply with the contracts or common law. Oak Mortgage sent
Nasserfar scripts to use for "Bonowers" in pipcJinc, and advised that the employees could solicit to their
''book of business" and "past customer database" - all of which would be baned even under their
definition. Moreover, regardless of the contractual definition, no employee (let alone a fiduciary) is
pennitted to solicit on behalf of a competitor while still working for his employer.

                                                   15
                                                                                                             17
TI1e same day that Nasserfa1· resigned on January 16, 20 15, he logged into Amcripro' s computer

network and began systematically deleting files, inducting almost 120 contacts in the Outlook

Contacts folder he had maintained at Ameripro. Nasserfar took additional steps to try to purge

the files trom Amcripro 's computer system altogether, by selecting the option to ''pcm1anently

delete" those tiJes from the "Deleted Jtcms" folder. Task deleted 62 folders (containing 911

customer files) from a laptop that Ameripro had issued to him, before returning it to the

company.     Gosnay attempted to permanently destroy all of the evidence that he had been

forwarding Ameripro documents to his personal gmail account.

       39.     At least as early as December 11,2014, C()Untcr-Dcfendants knew of the potential

lawsuit with Amcripro, as cxempl.ificd by the indemnity that Oak Mortgage had previously given

the Individual Counter-Defendants while they were still fiduciaries of Ameripro. Remnants of

text messages produced by Oak Mortgage show that Task had tcxtcd with his co-conspirators

over the following month, including on the subject of contacting people whom he admitted he

was not allowed to solicit. Nevertheless, Task manually destroyed every lext message that he

had exchanged during his employment \'-'ith the other Counter-Defendants and with Amcripro

customers.

       40.     At the hearing on Amcripro's request for TRO on May It. 2015, Amcripro

brought Task's destruction of text messages to the Court's attention. In addition to ordering

Counter·Defendants to return all of Ameripro 's infom1ation in whatever medium they possessed

and/or took such infonnation, the Court specifically instructed Counter-Defendants "not to

destroy anything, period:' and later in the hearing repeated >+cto not destroy anything." Counter-

Defendants represented in open court that '"in the meantime, nothing is going to be destroyed."

The bard drive they supplied in response to the TRO, however, showed that Counter-Defendants

subsequently destroyed over 150 tiles, after the TRO issued, and sought to wipe out the evidence


                                               16
                                                                                                     18
of that conduct in the unallocated space of the hard drive. Forensic analysis of the hard drive

shows that unallocated lblders have been cleaned and zeroed out: in other words, leaving aside

any destruction of information that might be shown in the original media, confidential

documents which they had copied onto the hard drive copy were deleted atlcr the TRO actually

issued. In the process of destroying such evidence, however, Counter-Defendants overlooked or

were unaware of a Master File Table on the same hard drive. which recorded their destruction of
                                 12
evidence after the TRO issued.

        41.     This Court has inherent auU1ority to punish such destruction of evidence even if

no TRO had been entered against Counter-Defendants.               The    tact   that Counter-Defendants

destroyed additional evidence after this Court    ~:ntcrcd   the TRO,   ho~.vcvcr,   is contempt of court,

particularly in light of this Court's express conunand to Counter-Defendants at the TRO hearing

to desist from destroying anything "period.''

                     Upon their resignationsjl·om Ameripro, the Individual
               Counter-Defimdants' actions have been as agents for Oak ~Mortgage

       42.      Upon their resignations from Amcripro, the lndividual Counter-Defendants all

became agents of Oak Mortgage. As of January 19, 2015, Nasscrfar was the Vice President of

Austin and Branch Manager for Oak Mortgage, Task was its new Austin Area Sales Manager,

and Gosnay was its Mortgage Loan Officer at the new Lake•way office.

       43.      As agents of Oak Mortgage, they kept the reams of confidential intbmtation they

took from Ameripro; ranging trom general ledgers to borrower credit reports, and in violation of

the non-solicitation provisions of their contracts, continued snliciting from Amcripro customers.

Counter-Defendants' conduct has been a continuing violation of statute, common law, and



 11
    ~l11c Table shows that 140 file folders were deleted after May 14, 2015 at 1:52 p.m., from the "COC-
002" folder (Michael Task's thumb drive), and that another 12 files were deleted on May 19, 2015. at
1:46 p.m., via the recycle bin of"COC-001'' (Michael Nasserfar's thumb <hive), ali after the TRO issued.

                                                  17
                                                                                                             19
contract. The entirety of Oak Mortgage's competing Lakeway office personnel, as listed on its

website, were in continuous possession of Amcripro's confidential infom1ation in the several

months before this Court issued a Temporary Injunction against them, and are preslmlcd under

Texas law to have used all such data.

C.     Application for permanent injunctive relief (and for continued enforcement of the
       Court's June 16, 2015 Temporary ln.junctioo against Counter-Defendants).

       44.     Amcripro incorporates by reference all factual allegations stated hereinabove.

Counter-Defendants,     together   with   Counter-Defendants'   agents,   representatives,   new

employcr(s), servants, employees, independent contractors, attorneys, and those persons or

entities in active concert or participation with them, are collectively retesTed to as the

"Restrained Parties."

       45.     Based on their conduct recited above, Counter-Defendants have taken confidential

and proprietary infom1ation belonging to Amcripro (including Amcripro's internal financial

reports, borrower credit reports and loan applications, pricing infonnation, client and referral

supplier lists, concession fees, builder contacts and cell phone numbers, clients' business

preferences, transaction details, proprietary templates, loan set-up sheets, document lbm1s,

correspondence, and other Amcripro compilations of infom1ation and lbrms that Ameripro

developed for its business), and have also attempted to permanently destroy copies of Ameripro

files, all in violation of Texas common law and the Individual Counter-Defendants' written

employment contracts.     Counter-Defendants' conduct is causing. and unless enjoined will

continue to cause, irreparable harm to Amcripro.

       46.     Based on Counter-Defendants' conduct and misappropriation of information,

Ameripro has suffered, and unless Counter-Defendants and those acting in concert with them are

immediately enjoined from engaging in the tollowing actions. Amcripro reasonably !cars it is

likely to continue suffering imminent and irreparable hann, loss, and damage through Counter-
                                               18
                                                                                                   20
Defendants' usc of Amcripro's confidential and proprietary information in competition against

Amcripro (including Amcripro's customer and referral suppliers), loss of customers and

customer goodwill through Counter-Delcndants' solicitation for a competitor, permanent loss of

customers and referral suppliers, and permanent damage to Ameripro's goodwill and business

reputation.   Disclosure of the above confidential and proprietary information to Amcripro's

competitor Oak Mortgage, in addition to constituting misappropriation and conversion of

Amcripro's property, would give Counter-Defendants an unfair competitive advantage over

Amcripro. The only adequate, effective, and complete relief to Ameripro is to restrain Counter-

Defendants from further engaging in the following proscribed activities as set forth below.

       47.     Cowllcr-Defendants' conduct described above also constitutes misappropriation

of confidential and proprietaJ)' infonnation, conversion, breach of fiduciary duty, and breach of

contract, and as indicated in this counterclaim and sworn application, Ameripro has shown a

probable right of recovery and likelihood of success on the merits.

       48.     Pursuant to Tex. R. Civ. P. 680, et seq .. and Tex. Civ. Prac. & Rem. Code §

65.001, et seq., and in order to preserve the status quo during the pendency of this action.

Ameripro therefore requests the Court's continued enforcement of the Temporary lnjunction

issued in this cause, as well as issuance of a pcnnancnt injunction. ordering and immediately

enjoining Counter-Defendants and the other Restrained Pa11ies to do each of the loHowing:

       i)      ordering Counter-Defendants and the other Restrained Parties to immediately

               return to Amcripro all documents and information they removed from Ameripro

               (including but not Jimiled to any information that was contained on Ameripro

               computers or in Ameripro files, Ameripro · s pricing information, client and

               referral supplier lists, concession lees, builder contacts and cell phone numbers,

               clients' business preferences, transaction details, proprietary templates, loan set-

                                                19
                                                                                                      21
       up sheets, document fom1s, correspondence, and other Amcripro compilations of

       infom1ation and forms that Ameripro developed for its business). and other

       duplications of infom1ation located at Amcripro or on Ameripro computers. c-

       mails, original tiles or documents, printouts, photocopies, electronically stored

       documents, and other information taken from Ameripro, including any

       information which identifies or pertains to customers and referral suppliers (and

       contacts with each) with whom Ameripro did business during the tem1 or the

       Individual Counter-Defendants' employment at Ameripro;

ii)    enjoining Counter-Defendants and the other Restrained Parties from continuing to

       withhold from Ameripro documentt. and information they removed from

       Ameripro (including but not limited to information that was contained on

       Amcripro computers or in Ameripro files, Ameripro's p1·icing information, client

       and referral supplier lists, concession fees, builder contacts and cell phone

       numbers, clients' business preferences, transaction details, proprietary templates,

       loan set-up sheets, document fom1s, correspondence, and other Ameripro

       compilations of information and forms that Ameripro developed tor its business),

       and other duplications of infomtation located at Ameripro or on Amcripro

       computers, e-mails, original     tiles or documents, printouts. photocopies,

       electronically stored documents, and other information taken from Ameripro,

       including any infonuation which identities or pertains to customers and referral

       suppliers (and contacts with each) with whom Ameripro did business during the

       tem1. ofthe Individual Counter-Defendants' employment at Ametipro:

iii)   enjoining Counter-Defendants and the other Restrained Parties rrom soliciting

       from customers (including in particular Brohn Homes, Ccntcrra Homes, Clark

                                       20
                                                                                             22
      Wilson Builders, and Seaholm Residences), and referral suppliers with whom

      Ameripro did business during the term of the Individual          Counter~ Defendants'


      employment at Ameripro;

iv)   enjoining Counter-Defendants and the Restrained Parties from destroying any

      documents and infmmation they removed from Ameripro until such Lime that all

      such information has been retumcd to Amcripro (including but not limited to

      information that was contained on Amcrjpro computers or in Ameripro Iiles,

      Ameripro's pricing information, client and referral supplier list<>. concession tees,

      builder contacts and cell phone numbers. clients' business preferences, transaction

      details.   proprietary   templates,   loan   set-up    sheets,    document     tbnns,

      correspondence, and other Amcripro compilations of information and tonns that

      Ameripro developed tor its business), and other duplications of information

      located at Ameripro or on Amcripro computers, c-mails, original files or

      documents, printouts, photocopies. electronically stored documents, and other

      information taken from Amcripro, including any information which identifies or

      pertains to customers and rcfetTal suppliers (and contacts with each) with whom

      Amcripro did business during the tcnn of the Individual Counter-Defendants'

      employment at Ameripro;

v)    enjoining Counter-Dclcndants and the other Restrained Parties from using

      (including tl·om using in connection with Oak Mortgage's business), or from

      transferring or conveying to any third pat1y, or from accessing or granting access

      to, any of Lhc documents and information they removed from or transmitted

      outside of Amcripro, except to transfer such information to Ameripro (including

      but not limited to infom1ation that was contained on Ameripro computers or in


                                       21
                                                                                              23
               Amcripro flies, Amcripro's pricing information, client and referral supplier lists,

               concession fees, builder conlacts and cell phone nwnbcrs, clients' business

               preferences, transaction delai!s, proprietary templates, loan set-up sheets,

               document     forms,   correspondence, and other Ameripro compilations of

               information and forms that Amcripro developed for its business), and other

               duplications of infom1ation located at Ameripro or on Ameripro computers, e-

               mails, original files or documents, printouts, photocopies, electronically stored

               documents, and other infonnation taken from Ameripro, including any

               information which identifies or pertains to customers and referral suppliers (and

               contacts wiLh each) with whom Amcripro did business during the tcm1 of the

               Individual Counter-Defendants' employment at Ameripro.

       49.     Amcripro is a mortgage company which has served the Central Texas area since

2003, and it depends on the goodwill of its customers and referral suppliers to remain in

business. Ameripro has made a significant investment in maintaining good relationships with its

customers and referral suppliers, and marketing its services.

       50;     As required by the Gramm-Leach-Biiley Act and Regulation P, Ameripro

maintains a sophisticated computer system and internal safeguards to comply vv·ith statutory

requirements and other regulations govcming conlidcntiality of loan information, and to ensure

that customers receive excellent service and protection of their personal and financial

infonnation.   Amcripro 's saJcguards or its confidential and proprietary information include

secure-access entry to its premises, log-in requirements to access its computers (including

requiring employees first Lobe registered and accepted through Amcripro's IT department before

receiving log-in credentials), additional log-in safeguards lor loan officers, and similar security

safeguards for federally regulated banks.

                                                22
                                                                                                      24
       51.     Coantcr-Defcndants'    conduct    m   removing     confidential   and   proprietary

information, attempting to solicit from Amcripro's customers and referral suppliers, and the

other conduct set forth above will result (and has already resulted) in loss of customers and

referral suppliers, loss of goodwill, violation of laws which bar misappropriation of in!brmation,

and the loss of and pennanent injmy to the value of Amcripro's confidential infbm1ation.

Ameripro does not have an adequate remedy at law for the same reasons set forth in the

preceding paragraphs, including because Counter-Defendants have wrongfully taken confidential

infonnation belonging exclusively to Ameripro.

       52.    The injury that will result to Amcripro if Counter-Defendants and the other

Restrained Parties arc not enjoined from the conduct described above would outweigh any injury

that continued enforcement of the tempormy injunction and issuance of the pcnnanent injunction

might cause Counter-Defendants, and would not disservc the public interest.        Amcripro has

posted the bond set by the Court in cmmcction with the Temporary Injunction, pending trial on

the merits and issuance of a permanent injunction. and the writs of Temporary 1(\junction have

been issued and served.

D.     Breach of fiduciary duty. and knowingly aiding and abetting breach.

       53.    Amcripro incorporates by reference all factual allegations stated hereinabove.

Each of the Individual Counter-Defendants served in agency roles on behalf of Amcripro, and

consequently owed fiduciary duties to Ameripro as a matter of law.        By the nature of their

management duties and access to files (and as detailed in their employment agreements) each of

them was cntmstcd with the most highly coniidcntial client infonnation of Amcripro, including

internal Amcripro financial reports and financial infbm1ation and loan documentation of

consumer clients, which the Individual Counter-Defendants agreed to keep confidential and to




                                                23
usc exclusively for Ameripro's mortgage lending business. 13 Each of them owed a high duty of

loyalty, good faith, fair dealing, honest performance, titll disclosure, and strict accountability to

Ameripro. 14

        54.     The Individual      Countcr~Dcfendants'      conduct as detailed above, including

transmittals (while still employed and under agency with Amcripro) of Amcripro's general

ledgers. loan profitability reports, sales by unit and volume, pricing infom1ation, clients and

contact information, templates, and other confidential and proprietary information lor purposes

of using at Oak Mortgage's competing husiness, and their attempted pcnnanent destruction of

Amcripro computer files which identify customers, arc 11agrant violations of fiduciary duty.

Their active solicitation of Amcripro customers on behalf of a competitor, even while they were

stilt employed by Amcripro, is a flagrant violation of liduciary duty. 15 While still employed with

Ameripro and under agency, the Individual Counter-Defendants were in constant communication

with their co-conspirator Oak Mortgage to plan a competing business, using Ameripro

confidential information and its existing builder customers.

        55.     As a consequence of the Individual Counter-Defendants' violations of fiduciary

duty, and Oak Mortgage's knowing aiding and abetting those breaches of duty, Counter-

Defendants arc jointly and severally liable to Amcripro for its actual damages, and punitive

damages. for which Ameripro seeks recovery. Counter-Defendants are also liable to Ameripro

  u Abezter 1i'ucking Co. v. :trizpe, I 13 S. W.3d 503, 50R-09 (Tex. App. - Houston [1'1 Dist.J 2003, no
pet.) (principal and agcr1t is among the formal fiduciary relationships which arise '"as a matter of law").
 14
       Vogr v. Warnock, 107 S. W.3d 778, 7e:2-83 (Tex. App. - El Paso 2003. pet. denied) ("A fiduciary
owes her principal a high duty of good faith, fair dealing, honest performance, and strict accountability.
. . . In discussing the nature of tiduciary relationships, our Supreme Court has stated that the higher
standards there imposed should rarely be subject to t:xccprions .. _'').
 15
    Their conduct also violates their common law duty to refrain from using for their own advantage. and
to the detriment of their former employer, confidential infonnation or trade secrets acquired by or
imparted to them in their employment. Employees are held to that common law duty even in the absence
of a fiduciary rdationship. The Individual Counter-Dctbndants' conduct was particularly inexcusable in
that each of them was an employee, agent, and fiduciary to Amcripm while he commincd those acts.

                                                    24
                                                                                                              26
for disgorgcment, and in the case of the Individual Counter-Defendants, also liable for forfeiture

of compensation (including compensation they received from Ameripro during the period of

their breach), for which Ameripro seeks recovery.

E.     Misappropriation and conversion.

       56.    Ameripro incorporates by reference all factual allegations stated hereinabove.

Counter-Defendants' conduct described above constitutes misappropriation and conversion of

Amcripro's property.     Even in the absence of written employment agreements with the

Individual Counter-Defendants, each of the Counter-Defendants is charged with knowledge that

former employees may not use for their own advantage, and to the detriment of their fbnncr

employer Amcripro, confidential infom1ation acquired by or imparted to them in the course of

their employment.    Similarly, the employment agreements describe in detail that t1nancial

information, client lists, pricing information, client financial infonnation, and other Ameripro

documents lo which they were given access (or which they themselves created during their

employment) are the sole property of Ameripro, and may not be used or disclosed by the

Individual Counter·Defendants for any purpose other than Amcripro 's business.

       57.    At least as early as December 10, 2014, Oak Mortgage had reviewed NasserHu's

and Task's employment agreement with Amcripro, and in addition to the knowledge that Oak

Mortgage is presumed to have of Texas common taw, knew of the contractual conJidentiality

provisions. Amcripro also made Oak Mortgage specifically aware of the Individual Counter-

Defendants' employment agreements, to remove any question that its continued retention and

usc of Ameripro proprietary and confidential information was a violation of law and or the

employment agreements.     At the spccilic request of Oak Mortgage, however, the Individual

Counter-Defendants secretly e.-mailed and delivered copies of such confidential and proprietary

information as described above for use at Oak Mortgage. Ameripro's competitor, and deleted

                                               25
                                                                                                     27
Ameripro computer records.       Oak Mortgage retained and used copies of those confidential

records.

       58,     As a consequence of their acts of misappropriation and conversion, Counter-

Defendants arc jointly and severally Liable to Ameripro for actual damages, and punitive

damages, for which Ameripro seeks recovery.

F.     Breach of contract. and tortious interference with contract.

       59.     Ameripro incorporates by reference all factuaJ allegations stated hereinabove. As

quoted extensively above, Nasserfar's and Task's "Proprietary lnformation Agreement,''

"Confidentiality Agreement," "Non-Disclosure Agreement," and "Employment Agreement,"

Gosnay's "Employment, Confidential Information and Invention Assignment Agreement" and

"Loan Officer Agreement," and the Amcripro employee handbooks with which they

contractually agreed to comply, contain extensive provisions which dctine Amcripro's agreed

ownership of financial information, customer information, pt·icing information, compilations of

client files, and other intbnnation to which they were given access during their employment with

Ameripro, and the Individual Counter-Defendants' contractual obligation not to usc or disclose

any of that information, and not to solicit from or intertere with Ameripro 's customers, suppliers,

payers, or employees tor one year (Nasserfar and Task) and 18 months (Gosnay}.

       60.     l11e Individual Counter-Defendants' conduct described above, including their

disclosures of confidential information, their misappropriation and conversion of Amcripro's

confidential information, their solicitation of its customers. suppliers, payors, and employees,

and their intentional attempts to destroy Amcripro computer files, not only sound in tort but also

constitute breach of contract. In breach of contract, they also failed to provide a written list of

any and all leads, business prospects. and/or loans in process as of the date of his termination, as

required by their agreements. On account ofthcse multiple breaches of contract and commission

                                                26
                                                                                                       28
of torts, and their failure to remain "available to help with and participate in the closing process"

despite Amcripro 's attempts to contact them, none of the Individual Counter-Defendants

tcnninatcd his employment in good standing. 16 Oak Mortgage's active encouragement of those

contractual violations constitutes tortious interference with Ameripro 's contracts.

        61.     Counter-Defendants argue that the Individual Counter-Defendants never received

access to confidential information at Ameripro.            In testimony, however, Counter-Defendants

admitted the exact opposite, including the confidential nature of general ledgers, bo!Towcr

infom1ation, and other records they stole. Moreover, as Counter-Defendants acknowledge in

their petition, Ameripro is "a mortgage company that originates residential loans in the State of

Texas." [Second Amended Petition at          ~1   3.] Each of the lndividual    Counter~Dcfcndants     (who

were formerly Ameripro's branch manager, sales manager, and loan officer) routinely had access

to such loan Iiles. Ameripro's client loan riles consequently are confidential as a matter oflaw,

including under the provisions of the Gramm-Leach-Blilcy Act and Regulation P.

        62.     As a matter of law, such information also satisfies the Texas Supreme Court's

Mann Fran/if(Jrt analysis of confidential information that        will support the enforcement of non-

compete and non-solicitation provisions under Tex. Bus. & Comm. Code § 15.50, et seq.

Countcr~Defendants'      argument that they never received confidential intonnation during the

course of their employment (and that they cannot be held liable for that reason) is l'rivolous.

        63,     Counter-Defendants have also argued that the contracts arc unenforceable as

"contracts of adhesion," because the contracts were supposedly presented to them on a ''take it or


 16
     In the same paragraph which required the Individual Counter-Defendants to provide a written list of
''any and all" leads, prospects, and loans in process, it adds: hProvjded the Employee terminates in good
standing and is available to help with and pa11icipatc in the closins process when requested. he:she will be
eligible for compensation on pending loans that close within 30 days oftcnnination." They failed to meet
any of those prerequisites, tailing to provide the required written list, refusing to be available to help and
participate in closings, and violating the confidentiality. ownership, and non-solicitation provisions of
their contracts. They refused to respond to Amcripro•s multiple attempts to contact them.

                                                      27
                                                                                                                 29
leave it basis'' by Amcripro. That argument not only is factually unttue, but also of no legal

consequence. The Texas Supreme Court has spccificaHy held that "an employer may make

precisely such a 'take it or leave it' oiTcr to its at-will employees."         Even if the employer

premises "continued employment on acceptance of new or additional terms," it is entitled to do

so, and the contract is not rendered ..unconscionablc.'' 11        Indeed, Counter-Defendants have

purported to sue under those contracts. even as they simultaneously argue that they are

unentbrccable.     Their attacks on enforcement of the contracts arc both factually and legally

without merit.

        64.      As a consequence of the Individual Counter-Defendants' breaches of contract,

and Oak Mortgage's tortious interference with those contracts. Counter-DefendanLs are liable to

Ameripro for its actual damages, punitive damages (as to Oak Mortgage), and attorneys' fees (as

to the Individual Counter-Defendants), for which Amcripro seeks recovery.

        65.      In addition, Ameripro is entitled to, and hereby respectfuUy requests, an equitable

extension of the non·solicitation period for a time period equivalent to the duration when

Counter-Defendants were in breach. Their breaches commenced at least as early as December
                                                                                            111
2014, and continued at least through entry of the TRO in this cause on May II, 2015.

G.      Violation of Tex. Bus. & Com. Code§§ 143.001-02 (Harmful Access by Computer).

        66.      Amc1ipro incorporates by reference all factual allegations stated hereinabove. As



 11
   111 re Halliburton Co .• 80S. W.3d 566 (Tex. 2002). See also Obra Homes, Inc. v. Gonzalez, 2010 WL
2224662 *R (Tex. App.- Corpus Christi 2010, no pet.) (even if an agreement qualifies as a "contract of
adhesion'' because a party has no bargaining power, that in itself docs not render it unconscionable).
 1
  ~ Nationsbuilders Ins. Sen• .. Inc. v. Houston lnt 'fins. Group, Ltd., 2013 WL 3423755 *6 (Tex. App. -
DaJJas July 3, 2013, no pet) ("The concept of equitable extension has also been recognized w1dcr Texas
law:· and noting the "remedy of a onc~year extension of the restricted period gave [claimant] the bcnctlt
of its bargain of a one-year period without appellees preparing to conduct a business in competition'');
Guy Cwpenter & Co. v. Pnwenzale, 334 F.3d 459, 464 (5th Cir. 2003) (court has authority to extend the
expiration of non-solicitation clause). Without equitable extension, Ameripro would be dcptivcd of the
benefit of its bargain for the time period when Counter-Defendants breached the non-solicitation clauses.

                                                   28
                                                                                                            30
a consequence of the conduct described above. Counter-Dctendants arc also liable to Amcripro

under Tex. Civ. Prac. & Rem. Code      §~   143.001-02, tor harmful access by computer.     Oak

Mortgage actively encouraged the Individual Counter-Dctendants to supply it with internal

confidential records of Amcripro, while they were still employed by Amcripro. The Individual

Counter-Defendants complied. ln addition to paper copies printed from Amcripro's computers.

they transmitted electronic versions of intemal Ame1ipro information while still employed with

Amcripro, and after resignation, took and kepL copies of such records as agents or Oak Mortgage.

       67.     Oak Mortgage had no consent to use of Ameripro computers at all, whether

directly or indirectly through the Individual Countcr-Dctcndants.     The limited conscnL that

Amcripro had given the Individual Counter-Defendants to usc its computers was strictly for the

business purposes of Ameripro, and certainly did not extend to them supplying confidential

documents that were secretly requested by a competitor. As Task admitted at the Temporary

Injunction hearing, the Individual Counter-Defendants printed and downloaded records from

Ameripro computers tbr a purpose other than that for which Arncripro had given consent. As

Nasserfar stated when he extended Amcripro 's job offer to Gosnay, any activity that would assist

"'in preparing to compete with the Company" would also certainly be outside the parameters of

any authorized use of Amcripro's computers. Similarly, their destruction of tiles and    c~rnails


from Ameripro-issued laptops was outside any authorit:cd use of the company's computers.

They used that stolen information to untairly compete against Ameripro, including by

jumpstarting a competing office in one business day.

       68.    Under Section 143.00 l, a person who is injured, or whose computer has been

injured, as a result of intentional or knowing conduct which violates of Chapter 33 of the Penal

Code, may maintain a civil cause of action. Section 33JJ2 of the Penal Code provides, in turn,

that "A person commits an offense if the person knowingly accesses a computer, computer


                                               29
                                                                                                    31
network, or computer system without the effective consent of the owner." "Harm" is defined to

include not only erasure of information, but also "any other loss, disadvantage, or injury that

might reasonably be suffered as a result ofthe actor's conduct." Section 33.01(12) provides that

"Consent is not etTcctive if: ... used for a purpose other than that lbr which consent was given"

-    the very facts to which Counter-Defendants admitted at the Temporary Injunction hearing.

Section 33.01 defines ''Access" to include making ··usc of any resource of a computer, computer

network, computer progmm, or computer system" -             the very method by which Counter-

Defendants downloaded and printed Ameripro's conJidcntial infom1ation. As a consequence of

their statutory violations, Counter-Dclcndants arc liable to Amcripro for its actual damages.

reasonable attorneys' fees, and costs, for which Amcripro seeks recovery.

H.      Violation of Tex. Bus. & Com. Code § 134A.001, et seq. (Texas Uniform Trade
        Secrets Acf).

        69.    Amcripro incorporates by reference all factual allegations stated hereinabove. As

a consequence of their conduct, Counter-Defendants arc also liable to Amcripro under Tex. Civ.

Prac. & Rem. Code§ l34A.001, et seq., for violation of the Texas Uniform Trade Secrets Act

("TUTSA''). "Trade secret" under TUTSA is defined to be '''infom1ation" (specifically including

''financial data," or a "list of actual or potential customers or suppliers") that derives actual or

potential independent economic value from not being generally known or readily ascertainable

by ''proper means" by other persons who can obtain economic value from its disclosure or use,

and that is the subject of reasonable cffm1s to maintain secrecy. Under Section 134A.002(3),

Counter-Defendants' misappropriation included their "acquisition," their "disclosure," and their

"usc" or such information, each of which independently gives rise to their liability to Amcripro.

        70.    The confidential and proptictary information which Counter-Dctcndants obtained

trom Ameripro, as described above, constitute trade secrets under that statutory dctinition. Each

of the Individual Cow1ter-DefendanLs admitted that the reports they copied and downloaded from
                                                30
                                                                                                       32
Amcripro were not derived from public sources, and could not be found publicly. Amcripro's

monthly general ledgers, loan profitability reports, pro fomtas, statements of income, lists of

borrowers and their account numbers at Ameripro, and other data were accessible only (rom

Ameripro's secure offices and password-protected computer network, and was not information

generally known to the public. The very fact that Oak Mortgage actively sought copies of that

data, and secretly obtained copies         from        the   Individual Counter-Defendants.   is an

acknowledgement that the information was or economic value, including for Oak Mortgage's

analysis of the economic viability of opening a new office in the same Lakeway location and

unusual expenses associated with that location.

       71.    The general ledgers and other detailed data also enriched Counter-Defendants by

enabling them to jumpstart a new office in one business day - piggybacking on Ameripro 's

investment of time and resources to develop such infom1ation - instead of the usual ramp-up

time of several months.    When they downloaded Amcripro fom1s, Counter-Defendants even

forgot to remove Ameripro's address, before using the same documents for Oak Mo11gage.

       72.    Cow1tcr-Defendants improperly duplicated Ameripro's Lakeway oflicc, from its

budget information to its templates and tom1s, and reopened the onice under its own banner. tn

the process. they destroyed Ameripro's Lakeway office. and unjustly appropriated Amcripro's

labor and Amcripro's business lor themselves. As a consequence of their conduct described

above, Counter-Defendants are liable for damages for Ameripro's loss of business, damages

measured by Counter-Defendants· unjust enrichment, exemplary damages as a consequence of

Counter-Defendants' willful and malicious misappropriation, and injunctive relief, for which

Amcripro seeks recovery.

I.     Civil conspiracy.

       73.    Ameripro incorporates by reference all factual allegations stated hereinabove. As

                                                  31
                                                                                                      33
detailed above. the Cow11cr-Dcfcndants coordinated their efforts in committing the violations of

common   law~   contract, and statute. The Individual   Counter~Dctendants   all abruptly resigned on

January 15-16, 2015, without prior notice to Arneripro, and immediately began working in the

same Hill Country Galleria complex for Amcripro 's competitor, Oak Mortgage. ln the months

before their departure from Amcripro, they were in constant communication with Oak Mortgage,

and at Oak Mortgage's initiation. were secretly transmitting Ameripro's confidential infom1ation

to that competitor, including internal financial records, customer information, pricing

inJonnation, and templates and forms, were secretly deleting Ameripro records from Ameripro's

computers, and secretly soliciting Amcripro 's customers.          Aller the Individual Counter-

Defendants resigned from Ameripro. Lhcy continued those violations as agents of Oak Mortgage.

       74.      The evidence supports that beginning at least as early as October 2014. Counter-

Defendants had a common objective and design to engage in the tortious acts, statutory

violations, and breaches of contract described above, and that they each took acts in furtherance

of that conspiracy. Each Countcr-Detcndant is jointly and severally liable for the actions of each

other Counter-Defendant, in connection with each cause of action asserted by Amcripro above.

J.     Spoliation of e\'idence.

       75.      Ameripro incorporates by reference all factual allegations stated hereinabove.

Counter-Defendants' intentional destruction of text messages and e-mails (alter Oak Mortgage

agreed to indemnify them tor a future lawsuit with Amcripro), their destruction of computer files

and folders (including destruction of over 150 files and cleaning out the unallocated space even

afler this Coutt issued a TRO and commanded them to desist such destruction). and their other

intentional and negligent acts to destroy relevant information as described above, constitute

spoliation of evidence.      Counter-Defendants had a duty to preserve all such evidence,

commencing at least as early as December II,. 2014 when Oak Mortgage agreed to indemnify


                                                32
                                                                                                        34
them in litigation against Amcripro. They certainly had such a duty on May J 1, 2015, when the

Court ordered them not to destroy "anything, period."               In each instance, they nevertheless

continued to willfully and negligently destroy documents.

        76.     Ameripro respectfully requests that a spoliation instruction be given to the jury,

instructing the jury that such evidence had it been produced would have been unfavorable to

Counter-Defendants, in addition to any other instructions or action by the Court to appropriately

address Counter-Defendants' intentional and negligent destruction of relevant information.

K.      Rule 47 statement.

        77.     Pursuant to Tex. R. Civ. P. 47, Ametipro seeks monetary relief over $200,000 but

not more than $1,000,000, and n~m-monctary relief (including injunctive relief as set forth

hereinabove). The damages sought by Ameripro arc within the jurisdictional limits or the Court.

        78.     Amcripro reserves the right to amend its statement of monetary relief sought,

following discovery into the extent of Counter-Defendants' tortious, contractual, and statutory

violations, as well as to reflect the altorncys'   fee~   that Ameripro has incurred.

L.      Ameripro•s Amendt.-d Answer.

        79.     In answer to "PlaintitTs' Second Amended Original Petition," Ameripro

incorporates by reference all factual allegations stated hereinabove, and further pleads Lhc

following by way of general denial and aflirmativc defense.

                                            General denial

        80.     Pursuant 1.o Tex. R. Civ. P. 92, Amcripro generally denies each and every, all and

singular, the allegations contained in "Plaintiffs' Second Amended Original Petition." Amcripro

demands strict proof of their allegatjons by a preponderance of the evidence.

                                      Invalid hasesfor anti-suit
                                      injunction, and mootness

        81.     Subject to and without waiving the generality of the foregoing, Counter-
                                                     33
                                                                                                          35
Defendants' amended requests for injunctive relief fail as a matter of law. Counter-Defendants

requested that Ameripro be enjoined from "liling any legal action against Plaintitls," and !'rom

"asserting or alleging" claims (including to enjoin Amcripro from alleging that "any confidential

and proprietary in formation is provided'' to its employees). However, those requests fail to

satisfy any of Golden Rule's extraordinary predicates for an approp1iatc             anti~suit   injunction. As

a matter of law, they should be summarily dcnied. 19

           82.     Counter-Defendants' request for anti-suit injunction should also be denied as

moot. Ameripro's claims have a/reat<v been filed. The Court has alreat{J' ruled that '"Ameripro

has met its burden to establish that it has a probable right of recovery and likelihood of success

on the merits," and issued a Temporary Injunction in connection with the very claims they seck

to enjoin. In short, their requests lor i~unctivc relief arc both meritless and pointlcss.~ 0

                                           Violations f~j'Rule I 3 and
                                             Secrions 9.00/-9.012

           83.      For the same reasons stated above, Counter-Defendants' unsworn request fm

injunctive relict: and their allegation that Amcripro has committed "antitrust" violations. arc

groundless and brought in bad faith, have no basis in Jaw or fact, and are not warranted by a

good faith argument for the extension, modification, or reversal of existing law. Their amended

petition violates Tex. R. Civ. P. l3 and Tex. Civ. Prac. & Rem. Code*§ 9.001-9.012.

           84.     Counter-Defendants do not even pretend to comply witl1 Golden Rule

requirements in seeking their injunction. Likewise. their attempt to cast Ameripro 's filing of its

lawsuit as an ··antitrust" violation is not only factually and legally baseless, but also is barred by

the absolute judicial privilege, which docs not permit Lhem to maintain a cause of action based

 l'l   Golden Rule Ins. Co. v. Harpet', 925 S. W.2d 649, 651 (Tex. 1996) (pl-'1' curiam).
  (1 Counter-Defendants' other request for injunctive rdic!'~ relating to ownership and control of a website
 1

and alleged templates, has also already been rejected by the Court, both on the record and in the June 16.
2015 "Order Denying Plaintiffs'!Counter-Dcfcndants' Applicatioll for Tcmponuy Resttainillg Order.''

                                                        34
                                                                                                                  36
on Amcripro's prosecution of its claims or on statements made in Amcripro's plcadings. 11

          85.     Counter-Defendants have also alleged in bad faith that the Individual Counter-

Defendants were never given access to any confidential information at Ameripro, and that

Ameripro's contracts are consequently unenforceable.              Counter-Defendants made opposite

admissions in their prior sworn testimony, and among other confidential records, admitted they

had ongoing access to loan applications fbr Amcripro botTowcrs. 22 They also had access to

Ameripro's internal financial reports, such as general ledgers (which Counter-Defendants again

admitted are confidential). Their asserti<m of demonstrably false statements, which contradict

their prior sworn testimony, is both groundless and in bad taith.

          86.     Pursuant to Tex. R. Civ. P. 13 and Tex. Civ. Prac. & Rem. Code§§ 9.001-9.012,

Ameripro respectfully moves the Court, after reasonable notice to the parties, to order Counter-

Defendants to pay the incurred expenses of Amcripro in opposing the frivolous claims (including

attorneys' fees, any witness fees, fees of experts, and deposition expenses), and to strike those

allegations from Plaintiffs' Second Amended Original Petition.

                                      Failure to state a justiciable
                                      claim for declaratory rellel

          87.     Similarly, Counter-Defendants' request for declaratory relief should be summarily

dismissed as a matter of law, as an improper usc of declaratory judgment procedure. Counter-

Defendants have requested declaratory relief for their .. alledged [sic] tortious inlcrlcrcncc with


  ~ 1 BtU-ger v. Burger, 2006 WL 495663 *5 n. 15 (Tex. App.- Fort Wm1h M:u. 2, 2006, no pet.) ("comts
have consistently applied the privilege to all types of claims arising out of communications made in the
course of judicial proceedings, regardless of the lubl!ls placed on them"); Daystar Res.. inc. v. Col/mer.
I 76 S.W.3d 24, 27 (Tex. App. -llouston [1 11 Dist.] 2004. pet. denied) (privilege extends to pleadings).
 21
      As discussed above, the Supreme Court held that "clients' names, billing information, and pertinent
tax and financial information" is confidential for purposes of enforcing non-compete provisions under
Section 15.50. Mann F'rankfort, 289 S. W .3d at fi5 L Confidentiality provisions (like those in Amcripro 's
contracts) arc what support the existence of un "otherwise enforceable agreement" under Section 15.50,
not defeat it. Moreover, contrary to Counter-Defendants' argument that the contracts arc uncntorccablc.
this Court has enforced them twice over. in the TRO and again in the Temporary Injunction.

                                                    35
                                                                                                              37
contractual and business relationships," and have asked the Court to make various declarations

relating to "Dejendam's [Ameripro's] claim" against them. Counter-Defendants' request for a

declaration of their non-liability for tortious interference and other causes of action is an

improper usc of the declaratory judgment procedure, and should be dismissed as a matter of law.

                    Nasseljar ccmtractua!Zv assigned to Ameripro the website
                    and alleged templates (and denied the latter even existed)

       88.     Counter-Defendants also argue that Nasserfar supposedly authored templates

prior to working for Amcripm, and lhat Amcripro and its employees supposedly began using

iterations of those documents after he began working for Amcripm. They contend that Nasscrfin

still owns those templates.       Nasserfar also claims to own the internet domain name

michaclnasscrfar.com.

       89.     Those arguments are baseless, however, on the face of the contracts that Nasserliu

signed with Amcripm; i) Nasscrfar contractually conveyed all ofhis right. title, and interest in

the michaclnasscrfar.com domain to Ameripro on May 12, 2014; ii) Nasserf'ar contractually

warranted to Amcripro on October !8, 20 II. that he did not have any intellectual property or

other proprietary infonnation   or his   own when he began working for the company (such as

templates): and iii} on four separate occasions, Nasscrrar contractually agreed that if any such

prior works existed and were used on Amcripro computers, on its premises, or in connection

with its business, then he conveyed all right, title, and interest in them to Ameripro. Pursuant to

Tex. R. Civ. P. 58, Amcripro adopts herein by reference its "Ameripro Funding, Inc.'s Response

to Counter-Defendants' Application for InJunction" tiled May 22, 2015, detailing those facts.

While Ameripro is the owner and legally entitled lo use all such property, Amcripro is not using

any templates created by Nasscrfar, and has disabled the website link.

       90.     In fact, at the May 26~27, 2015 hearing on Amcripro's Temporary Injunction, this

Court heard the same arguments by Counter-Defendants, and rejected them. The CoUJt also
                                                36
                                                                                                      38
issued an order denying Counter-Defendants· application Cor restraining order on J unc 16, 20 15.

                            Ameripro 's lmvsuit to eJ{/tm:e its contractual rights
                             cannot support a claim of" tortious inte~ference

       91.        Counter-Defendants argue that the man11cr in which Amcripro has sought to

cniorce its contracts ·- i.e., Ameripro's filing of its lawsuil against Counter-Defendants -

constitutes tortious interference with Counter-Defendants' contracts and business relationships.

As a matter of law, Counter-Defendants' claim fails on at least two grounds: i) the absolute

judicial privilege bars them from maintaining a cause of action based on Ameripro' s prosecution

of its claims;    ii)   their claims arc also barred by the privilege or legal justification or excuse,

under whi.ch Ameripro has a privilege to protect its own colorable rights and seck redress for

Counter-Defendants' conduct.            In the June 16, 2015 Temporary Injunction, this Court

determined that Amcripro ·•met its burden to establish that it has a probable right of recovery and

likelihood of success on the merits" as to all Counter-Defendants. At a minimum, Ameripro has

established the existence of colorable rights, and as a maHer of law. its suit to enforce those

rights is covered by both privileges.

                                     Compensation claims are barred

       92.        The Individual Counter-Defendants' claims for additional compensation from

Ameripro are likewise bar·rcd on multiple grounds:

             A.    The Individual Countcr-Dctcndanls' employment agreements with Amcripro

                   included a compensation li:mnula which defined how each of them would be

                   paid.     Amcripro paid each of them in accordance with that lbrmula.           No

                   additional amounts are due any      or the Individual Counter-Defendants under the
                   terms ofthcir contracts with Amcripro. Instead. as detailed above. each ofthem

                   is accountable to Amcripro for forlciturc and disgorgcmcnt of amounLs he was

                   paid during the time period he was in breach of his duties to the company.
                                                     37
                                                                                                          39
            B.    A~   a consequence of the Individual Counter-Defendants' breaches of contract

                  and fiduciary duty described above (including their admitted failure to provide a

                  written account    or open   leads, business prospects, and loans in process, their

                  failure to assist in closings that occurred atler their tem1inations, and their

                  misappropriation of confidential records), none of the Individual Counter-

                  Defendants was in ''good standing" with Ameripro as ofthe date of termination.

                  They are not owed any amounts, including any commissions lbr closings that

                  occurred after they tem1inatcd their employment. As a consequence               or their
                  breaches of contract and fiduciary duty, they are also barred from seeking

                  enforcement of the contracts against Amcripro, and Ameripro is relieved from

                  any obi igation to perfom1 under those breached agreements.

            C.    The Individual Counter-Defendants' argument that Ameripro should have

                  renegotiated their contracts (and that they should be paid based on profitability)

                  fails to stale any valid cause of action, and is not legally unenforceable. The

                  parties never agreed upon any of the materia.! U!m1s for a new employment

                  agreement to take the place of their existing contracts, let alone in any writing

                  signed by both parties.       Moreover. Ameripro made clear to the Individual

                  Counter-Defendants that they are barred (as loan originators) from being paid

                  based on profits for their branch, and Amcripro refused to agree to any such

                  provision.    As a matter of law, the Individual Counter-Defendants cannot
                                                           . cxlstcnce.-
                  en fiorce contract terms thaL never came mto .       ")3 Evcn .1f thc parttcs
                                                                                            . were



 ~ K£Jttke v. Scott, 2011 WL 1467194 *4 (Tex. App. - Austin April 14, 20 ll, no pet.) (''lt is well settled
  1



law that when an agreement leaves material matters open for future adjusrmcnt and agreement that never
occur, it is not binding upon the parties and merely consritutes an agreement to agree."). In addition to a
merger clause, Amcripro's contracts with the tbrmer employees required any futtm.! modifications or
substitutions be in a writing signed by both parties. Gamer v. Fi€/elity Bank, 244 S. W.3d 855, 860 (Tex.
                                                    38
                                                                                                              40
                  to have ever agreed to such a modification (which they did not), it would have

                  violated governing regulations, and hence been illegal, void, and unenforceable.

        93.     All of Counter-Defendants' claims against Ameripro arc further barred under the

doctrines of unclean hands, estoppel, and waiver, including as a consequence of their material

breaches of contract, tortious conduct, and statutory violations described in detail above.

M.      All conditions precedent have been performed or have occurred.

        94.     Amcripro previously gave written notice and demand to each Counter-Defendant

to cease and desist the conduct described above, and for Individual Counter-Defendants to

comply with their contracts with Ameripro, but to no avail.

        95.     All conditions precedent have been performed or have occurred, including all

conditions precedent to Ameripro's right to recover from Counter-Defendants.

        WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiff Ameripro respectfully

prays that the Court continue to enforce the Temporary Jnj unction dated June 16, 20 l5 through

enu·y of linal judgment, that Counter-Defendants lake nothing by their claims, and that upon trial

or other disposition, the Court enter final judgment in favor of Amcripro and against Counter-

Defendants, jointly and severally, for the following:

        (a)     awarding Amcripro permanent injunctive relief against Counter-Defendants. as

requested and detailed above~

        (b)     awarding Amcripro recovery        or its actual damages against Counter-Defendants,
including for Counter-Defendants' misappropriation and conversion of Amcripro's confidential

and proprietary infbnnation, and lbr their breaches of fiduciary duty, breaches or contract,

statutory violations, and Oak Mortgage's aiding and abetting of those breaches, its 1ot1ious


App.- Dallas 2008, no pet.) ('"A written agreement will be enforced as written and cannot be added to,
varied. or contradicted by parol rcstiml"my. This is particularly true where the written contract contains a
recital that it contains the entire agreement between the parties or a similarly-worded merger provision.").

                                                    39
                                                                                                               41
interference with contracts, and its other acts in conspiracy with the other Countcr~Dclcndants:

       (c)     awarding    Ameripro       disgorgcment      damages   against   Counter~Dcfendants

(including all amounl'> by which Counter-Defendants have been tmjustly enriched), and ordering

forfeiture of compensation that the Individual Counter-Defendants received and;or allegedly

earned and ordering repayment of same to Amcripro;

       (d)     awarding Ametipro prejudgment interest to the maximum exLcnL permitted by

law;

       (e)     awarding Ameripro its reasonable attomeys' fees, costs of court, and any other

fees and amounts authorized by statute;

       (l)     awarding Amcripm postjudgmcnt interest as provided by la\v; and

       (g)     awarding Amcripro such other and thrthcr relief, at law or in equity, to which

Anteripro may be justly entitled.

                                      Respectfully submitted,

                                      GRAVES DOUGHERTY HEARON & MOODY, P.C.

                                      By:     /:'i/ Susan
                                                        P. Burton
                                              Susan P. Burton
                                              State Bar No. 03479350
                                              sburloncil)gdhmrcom
                                              Eric G. Behrens
                                              Stale Bar No. 02050700
                                              cbch rcns(ciigdhm .com
                                              401 Congress Ave., Suite 2200
                                              Austin, Texas 7870 l
                                              Telephone: (512) 480~5600
                                              Facsjmilc: (512) 480-5862

                                      ATTORNEYS FOR COUNTER-PLAINTIFF
                                      AND DEFENDANT AMERIPRO FUNDING, JNC.




                                                 40
                                                                                                     42
                                         AFFIDAVIT

STATE OF TEXAS                       §
                                     §
COUNTY OF TRAVIS                     §

        BEFORE ME, the undersigned >.tuthority. on this day persouaHy appt:ared ChaJ
Overhauser, who after being duly sworn stated under oath the following:
        "My name is Chad Overhauser. ! am the President and Founder of Ameripro Funding,
Inc.(' Atneripro'), the Counter~Piaintiff in this cause. 1 am duly authorized to make this affidavit
on Ameripro 's behalf. J am over the age of 2 I and have not been convicted of a Jelony. r am of
sound mind. capable of making this Aftidavit, and fuUy competent to testify to the matters slated
herein. l hav~ read the above Defendant and Counter-Plaintifl" Ameripro Funding. Inc_ 's First
Amended Counterclaim, and Sw<)rn Application for Temporary Injunction and Permanent
Injunction, and Answer. and every factual statement cont~ji' therein (e:xcludi[lg only legal
conclusions) is within my personal knowledge. and is true_.IU'\a ..e'fl~-"       . < ,..
                                                         ,."'//_/,.J   /'~·/_,J
                                              ___...._)/'... .f:~ " _.~/_____.
                                              Chad Ove'fn<iuser


2015.



               SU&ANDUtREn
         Notary Public. State of lex04
           MY Commtsal<:»" E)(plun
              January 1s. 2019




                                                41


                                                                                                       43
                               CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing pleading was served on aU
counsel of record on this gth day of July. 2015.

                                            ·s• Susan P.   Burton
                                     Susan P. Button




                                               42
                                                                                                    44
              CASE NO. 03-15-00416-CV


             IN THE COURT OF APPEALS
 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS


OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
    MICHAEL E. TASK, AND TYCORD R. GOSNA Y

                       Appellants

                             v.
             AMERIPRO FUNDING, INC.

                        Appellee

        Appeal from the 345th Judicial District Court
                  of Travis County Texas



             APPELLANTS' APPENDIX




            EXHIBIT4
                                                                         8/11/2015 4:51:44 PM
                                                                                             Velva L Price
                                                                                            District Clerk
                                                                                            Travis County
                              CAUSE    ~0.   D-1-GN-15-000785                            D·1-GN·15..000785
                                                                                              Patsy Ybarra
OAK MORTGAGE GROUP, INC.,                       §       IN THE DISTRICT COURT
MICHAEL H. XI\SSERFAR, MICHAEL                  §
E. TASK, and TYCORD R. GOSNA Y,                 §
                                                §
           Plaintiffs I Counter-Defendants,     §
                                                §
~                                               §       OF TRAVIS COUNTY. TEXAS
                                                §
AMERIPRO FUNDING, INC.,                         §
                                                §
           Defendant I Counter-Plaintiff.       §       345th JUDICIAL DISTRICT


                COUNTER-PLAINTIFF AMERJPRO FUNDING, INC.'S
                      SUPPLEMENTAL COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

       AMERJPRO FUNDING, INC. ("Amcripro'') respectfully files this its Supplemental

Counterclaim ("Supplemental Counterclaim''), supplementing "Countcr-Piaintifr Amcripro

Funding, lnc.'s First Amended Counterclaim and Sworn Application for Temporary and

Pcnnanenllnjunction, and Amended Answer" (the "First Amended Counterclaim") in this cause,

complaining of Counter-Defendants Michael H. Nasscrfar, Michael E. Task, and Tycord R.

Gosnay ("Individual Counter-Defendants") and Oak Mortgage Group, Inc. ("Oak Mortgage'').

       As stated in the First Amended Counterclaim, ''Amcripro seeks actual and punitive

damages against Counter·Defcndants (including the remedy of disgorgement from all Counter-

Defendants)." In the First Amended Counterclaim, Amcripro has already asserted its right to

disgorgcmcnt and for unjust enrichment in connection with its claims for conversion and

misappropriation. the Individual Counter-Defendants' breaches of fiduciary duty, Oak

Mortgage's knowing participation in the Individual Counter-Defendants' breaches of fiduciary

duty, and under Tex. Civ. Prac. & Rem. Code* 134A.00 l, et seq. ("TUTSA").

       In discovery responses, Counter-Defendants incorrectly suggest that Amcripro's pleading



                                                                                                   3
for disgorgcmcnt was limited to its breach of tiduciary duty claims, and have refused to produce

responsive documents relating to disgorgcment. Counter·Defcndants have misstated the scope of

Amcripro's disgorgcmcnt claim in the First Amended Counterclaim, but in order to ovoid any

question of adequate notice to Countcr-Dctendants regarding the scope of disgorgcmcnt relief

which Ameripro seeks to recover from them. Amcripro clarities as follows:

       1.       In addition to all other relief set forth in the First Amended Counterclaim.

Amcripro seeks disgorgcmcm damages against all Count.cr-Dclendants. As to Oak Mortgage.

Ameripro is entitled to the remedy of disgorgemcnt hascd on Oak Mortgage's acts or conversion,

misappropriation, knowing participation in and aiding and abetting the Individual Counter-

Defendants' breaches of fiduciary duty, violations           or   Tex. Civ. Prac. & Rem. Code §

134A.004(a) (the Texas Unilom1 Trade Secrets Act or ·'TUTSA"), and conspiracy with the

Individual Counter-Delendants in connection w·ith their breaches of fiduciary duty, conversion,

and misappropriation, all such conduct as described in greater detail in the First Amended

Counterclaim.

       2.       As to the Individual Countcr-Dclcndants, Amcripro is entitled to the remedy of

disgorgement based on the Individual Counter-Defendants' acts of conversion, misappropriation,

breaches of fiduciary duty, violations of TUTSA, and conspiracy with the other Counter-

Defendants in connection with their breaches or tiduciary duty (and knowing participation in and

aiding and abetting of same), conversion, and misappropriation, all such conduct as described in

greater detail in the First Amended Counterclaim.

       3.       As the Texas Supreme Cout1 has noted, the equitable remedy or disgorgcmcnt is
                                                  1
to •·•strip the defendant of a wrongful gain.'"       Ameripro seeks disgorgcmcnt as to all Counter-


 1
   In re Lo11gview Energy Ca.,_ S.W.3d _, 2015 WL 214!:!353 *5 & n. 34 (Tex. 2015) (quoting with
                                                                   s
approval Restatement (Third) of Restitution and Unjust Enrichment 51 cmr A).



                                                                                                       4
Defendants for all profits, usc value, proceeds, and/or consequential gams that Counter-

Defendants obtained through their wrongful conduct, including any benefits they received in the

way of profits, savings, and/or avoided expenditures. As shown as the hearing on Ameripro 's

Temporary Injunction application and in depositions in this cause. Counter-Dc1cndants'

commission of the conduct set out in the First Amended Counterclaim (including their

conversion and misappropriation ofAmeripro's internal financial data and customer information,

and commission and knowing participation in breaches of liduciary duty) enabled C'ountcr-

Defendams to assess the financial viability of opening a branch office in that same locale as

Amcripro, to jumpstart the opening of a competing branch office in shortened time and

commensurate cost savings, to unlZtirly compete for Ameripro's customers, to avoid the expense

of generating forms and templates and compiling spreadsheets and contact list infom1ation, to

compare internal Ameripro pricing infom1ation in setting their own pricing. to wrongfully obtain

the value of using Ameripro's contidential and proprietary intbrmation without authorization,

and to cfiectively duplicate Amcripro's business, among other wrongful benefits they gained

through their conduct. Ameripro is entitled to recover from Counter-Defendants, jointly and

severally, disgorgernent or the value or those receipts, avoided costs, and other benefits,

including but not limited to the value of the above benefits and of their unlicensed usc of the

property which they took from Amcripro. As set Corth in Ameripro 's First Amended Petition,

Ameripro is also entitled to a reasonable royalty tbr Counter-Defendants' unauthorized

disclosure andior usc of its trade secrets pursuant to TUTSA.

       4.      This pleading supplements, rather than amends, Amcripro's First Amended

Counterclaim, Pursuant to Tex. R. Civ. P. 58, Amcripro adopts and incorporates herein by

reference the First Amended Counterclaim in its entirety.

       WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiff Ameripro respectfully


                                                3
                                                                                                   5
prays that the Court enter linal judgment in favor of Ameripro and against Cmmtcr-Dctcndants,

jointly and severally, for all relief set forth in Amcripro's First Amended Counterclaim and in

this supplement thereto (including disgorgement relief against Counter-Defendants, amounts by

which Counter-Defendants have been unjustly enriched, and forfeiture of compensation that the

Individual Counter-Defendants received and/or allegedly earned and ordering repayment of same

to Ameripro). Amcripro further requests such other and further relief. at Ia\\' or in equity, to

which Amcripro may be justly entitled.

                                     Respectfully submitted.

                                     GRAVES DOUGHERTY HEARON & MOODY, P.C.

                                     By:     .s/ Susan P. Burton
                                             Susan P. Button
                                             State Bar No. 03479350
                                             ':iburton\(t.gdhm.com
                                             Eric G. Behrens
                                             State Bar No. 02050700
                                             ,~;kh.rcn~\dgdh.m.com
                                             40 1 Congress A vc .. Suite 2200
                                             Austin, Texas 78701
                                             Telephone: ( 512) 480-5600
                                             Facsimile: (512) 480-5862

                                     ATTORNEYS FOR COUNTER-PLAINTIFF
                                     AND DEFENDANT AMERIPRO FUNDING, JNC.



                                CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing pleading was served on all
counsel of record on this 11'11 day of August, 2015.

                                            /s · Susan P. Burton
                                     Susan P. Burton




                                                                                                     6
              CASE NO. 03-15-00416-CV


             IN THE COURT OF APPEALS
 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS


OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
    MICHAEL E. TASK, AND TYCORD R. GOSNA Y

                       Appellants

                             v.
             AMERIPRO FUNDING, INC.

                        Appellee

        Appeal from the 345th Judicial District Court
                  of Travis County Texas



             APPELLANTS' APPENDIX




            EXHIBIT 5
                                                               8/24/2015 8:00:00 AM
                                                                                   Velva L. Price
                                                                                  District Clerk
                                                                                  Travis County
                        CAUSE NO. D-l-GN-15-000785                             D·1..GN-15..000785
                                                                               Jonathan Sanders

OAK MORTGAGE GROUP, INC.             §      IN THE DISTRICT COURT
MICHAEL H. NASSERF AR,               §
MICHAEL E. TASK                      §
and,
TYCORD R. GOSNAY,
     •                                      345th JUDICIAL DISTRICT
     Plaintiffs,

vs.
AMERIPRO FUNDING, INC.,                     TRAVIS COUNTY, TEXAS

      Defendant.


                   NOTICE OF DAMAGES Cl.AIMED BY
                   DEFENDANT/COUNTER-PLAINTIFF


TO THE HONORABLE COURT:

      Attached hereto as "Exhibit 1it is a true and cotTect copy of

"DefendanVCounter-Piaintiff's Answers And Objections To P1aintiffs'/Counter-

Defendants' First Interrogatories" sworn to by Chad Overhauser, President of

Ameripro Funding, Inc .• Defendant/Counter-Plaintiff: on August 17. 2015.

                               Respectfully submitted,

                               By: Is/ Charles Bundren

                               Wl\tl. CHARLES BUNDREN & ASSOCIATES
                               LAW GROUP, PLLC

                               Wm. Charles Bundren, Esq.

PLAINTIFFS• NOTI(:E OF .DAMAGES CLAIMED BY DEFENDANT/COUNTER-
PLAINTIFF                                                   PAGE 1

                                                                                          7
                               Attomey-in Charge
                               State Bar No. 03343200
                               2591 Dallas Parkway, Suite 300
                               Frisco. Texas 75034
                               (214) 808-3555    Telephone
                               (972) 624-5340    Facsimi1e
                               e-mail:     charles@bundrenlaw.net
                               ATTORNEY FOR PLAINTIFFS

                        CERTIFICATE OF SERVICE

       The undersigned certities that on this 22nd day of August, 2015, all counsel
of record were served with a copy of this document in accordance with Rule 21 a of
the Texas Rules of Civil Procedure by serving the following:

      Susan BUiton, Esq.
      State Bar No.      03479350
      GRAVES DOUGHTERY HEARON & MOODY
      P.C.
      401 Congress., Suite 2200
      Austin, Texas 78701
      Telephone: (512) 480-5600
      Telecopier: (512) 480-5862 {facsimile)
      E-mail:            sburton(@gdhm.com
      ATTORNEY FOR DEFENDANT:


_X_by the electronic tiling manager pursuant to TRCP 2la(a}( 1},

_ _ by certitied mail retun1 receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to TRCP 21 a(a)(2).

~X- by    email at the email address indicated above pursuant to TRCP 21 a(a}(2).

__ by commercial delivery service deposited w i t h - - - - - - - - on the
date indicated above pursuant to TRCP 21 a(a)(2), and/or

__ by fax at the fax number indicated above pursuant to TRCP 2la(a){2).


PLAJ~TIFFS• ~OTICE    OF DAMAGES CLAIMED BY        DEFENDA~T/COUNTER-
PLAINTIFF                                                                   PAGE    2

                                                                                        8
                                Is/ Charles Bundren
                                Wm. Charles Bundren, Esq.
                                ATTORNEY FOR: PLAINTIFFS




PLAI~TIFFS•   NOTICE OF DAMAGES CLAIMED BY   DEFE~DA~T/COllNTER-
PLAINTrFF                                                      PAGE 3

                                                                        9
                    CAUSE NO. D-1-GN-15-000785

OAK MORTGAGE GROUP, INC.      §    fN THE DISTRICT COURT
MICHAEL H. NASSERFAR,         §
MICHAEL E. TASK               §
and,                          §
TV CORD R. GOSNAY,
     ,
     Plaintiffs,
                              *
                              A
                              ~

                              §
                                   345th JUDICIAL DISTRICT

                              §
VS.                           §
                              §
AMERlPRO FUNDING, INC.,       §    TRAVIS COUNTY, TEXAS
                              §
       Defendant.             §


      NOTICE OF DAMAGES CLAIMED BY DEFENDANT/COUNTER-
                         PLAINTIFF




         EXHIBIT 1
PLAINTIFFS• NOTICE OF DAMAGES CLAIMED BY DEFENDANT/COUNTER·
PLAINTIFF                                                 PAGE 1


                                                                   10
                             CAUSE      ~0. D-l-G~-15-000785


OAK MORTGAGE GROUP, l~C..                      §               IN THE DISTRICT COURT
MICHAEL H. ~ASSERFAR, MICHAEL                  §
E. TASK, and TV CORD R. GOS~AV.                §
                                               §
           Plaintiffs/Counter-Defendants.      §              OF TRAVIS COUNTI', TEXAS
                                               §
~                                              §
                                               §
AMERIPRO      FU~DING.I~C..                    §
                                               §
             Defendant/Counter-Plaintiff.      §              345 1b JUDICIAl, DISTRICT


      DEI~ENDA~T/COUNTER-PLAINTIFPS   ANSWERS A~D OBJECTIONS TO
        PLAINTIFFS'/COUNTER-DEFI!:NDANTS' FIRST INTERROGATORIES

TO:    PlaintifTs Counter-Defendants, Oak Mortgage Group, Inc., Michael H. Nasser far,
       Michael E. Task and Tycord R. Gosnay, hy and through their counsel or record, Wm.
       Charles Bundren, Esq., WM. CllARLLS BUSDRE\! & ASSOCIXn:s LAW GROCP, PLLC,
       2591 Dallas Parkway, Suite JOO, Frisco. Texas 75034.

       Dcfcndant:Counter-PlaintliT. Amcripro Funding, Inc. ("Amcripro") submits these it:-.

answers and objections to Plaintills.·Countcr-Dcfcndants · (''Counter-Defendants'')         First

Intcnogatorics.

                                            Respectfully submiued,

                                            GRAVES, DOt:OHERTY, HhAIH}\ & MOODY, P.C.
                                            401 Congress Avenue. Suite 2200
                                            Austin. Texas 78701
                                            (512)480-5738 Telephone
                                            (512) 4R0-5S38 Tclecopicr

                                  By:       s. Susan P. Burton
                                            Susan P. Burton
                                            State Bar No. 03479350
                                            sl7urlQJl(~gillJJ1l£Qill
                                            Eric G. Behrens
                                            State Bar No. 02050700
                                            cbchrcn~,agdhm.com



                                   AI TOR.'\l·Ys FOR DliFL'.\UA:\TCOL:\Tl·:R~PLAJ:'\TIFI.
                                   AMLRlPRO Fc:-.;or:.,;G,   1:-.:C.


                                                                                                    II
                               CERTJFICA TE OF SERVICE

      1 hereby certify that a true and correct copy of the foregoing   \Vas   served on this 17111 day
of August, 20 I5, via electronic mail on lhc foiiO\ving:

       Wm. Charles Bundren, Esq.
       WM. CIL>\RLES BU~DRE:-.; & ASSOCIA'IES   LAW GROUP, PLLC
       259 I Dallas Parkway, Suite 300
       Frisco, Texas 75034

                                            ·s Sus an P. Burton
                                            Susan P. Burton




                                                2

                                                                                                         12
                                     OBJt.:CTIOJ\S TO CElHAfl\1
                                 INSTRt:CTIO!IiS :\NO DEFINITIONS

        Amelipro o~jccts to the "Time Fnm1c" listed at p. II of Counter-Defendants'
intcn·ogatorics (a 4 1 /~-ycar period lhm1 January I, 2011 to the present). on the ground that it is
overbroad, harassing, and covers years that are not relevant to any issue in this lawsuit: Gosnay
did not begin working for Amcripro until 2014, and he alleges that he \Vas not paid commissions
"earned in the month of January 2015." Similarly, Nasscrfar and Task only allege they were nnt
paid amounts owed ''beginning in the first quarter of 2014.'' Ameripro's claims rdate to
Counter-Defendants' tortious conduct and breaches or contract which arc believed to have begun
no earlier than 2014. ln short Counter-Defendants' 4 1/~-year .;Time Frame" fl·om 2011 forward
is overbroad, irrelevant, and harassing.

        Ameripro fitrthcr objects to the "'fimc Frame" extending through the date "the answers to
these lntelTogatorics arc made" to the extent that the instruction contlicts \Vith the exemption
contained in Tex. R. Civ. P. 193.3(c): Ameripro intends to withhold privileged infomtation that
laH within Rule 193.3{c)'s exemption, generated on or allcr its "Petitioner Amcripro Funding.
Inc.'s Verified Rule 202 Petition'' was tiled in the related proceeding bel ween the same parties
relating to the same dispute, and as permitted by Rule 193.3(c), do so without tht:: necessity of
complying with Rule l93.3{a) and (b}.

        Amcripro further objects to the instructions at pp. 2-3 of Counter-Defendants'
interrogatories, in \Vhich Amcripro is inslmctcd to make detailed explanations regarding each
document that had existed in the past 4 1,2 yl.!ars that is no longer in Ameripro 's possession or
control or that otherwise is no longer arc in existence, and to list each person who might have
knowledge regarding same, on the ground that the inslmctions are unreasonable. overbroad,
would subject Amcripro to undue burden, unnecessary expense, harassment, and annoyance.
Amcripro further objects that those instructions arc beyond the scope oC Rule J97's
requirements.

        Ameripro l'urther objects to the inst.ructions at pp. 9-10 of Counter-Defendants'
interrogatories, and to the interrogatories which ask Amcripro to list every document that relates
to claims in the lawsuit (including multiple categories or detail listed at pp. 9-1 0) and to list each
person who might have knowledge regarding each such individual document, on the ground that
the instructions and questions arc unreasonable, overbroad, would subject Ameripro to undue
burden, unnecessary expense, harassment, and annoyance. Am.eripro further objects that those
instructions arc beyond the scope of Rule !97's requirements which allow a party to ask f()r a
description "in general" of the .. factual bases lc>r the party's claims or dcJcnscs" and not "tl)
marshal aU of its available pmot~· that it intends tn offer at trial.

         Amcdpro further objects to Counter- Defendants' eleven pages of instructions and
dcfi nitions to the extent that they exceed the spcci tic rcq uircmcnts of Rules 192, 193, and 197 of
the Texas Rules of Civil Procedure. or the requirements of any other rules pertinent to discovery.
Unless otherwise specifically agreed upon hy the parties in writing, Ameripro objects ll)
expanding its obligations beyond those exact requirements comaincd in the Texas Rule:-, of Civil
Procedure.


                                                  3

                                                                                                          13
                             RESPO~SES       TO INTERROGATORIES


INTERROGATORY NO. 1; Identity Defendant's Electronic Information storage devices
(hereinafter referred to as "storage devices'') which have stored any inlonnation or data related to
Plaintiff.<• and other devices which have stored or which arc cmrcntly storing electronic lites and
inf(mnation and ESI w·hich are or have been in the care, custody and control of Defendant since
January I, 2012, lhc dates the storage devices came into Defendant's custody, the name
Defendant uses to describe the storage devices, and the present location or the storage devices,
their custodian(s), the characteristics of Lhe information, where the inJ()tmation is stored, backed
up, or archived and describe the operating systems or programs used by Dl.!lcrtdant to store
Electronic Information or ESJ, as defined herein.

        A~SWER:


       Countcr-Dclcndants' intctrogatorics refer to "ESl, as defined herein;· but they did not
include a definition anywhere in their interrogatories; Amcripro assumes the undcJincd tcm1
"ESI'' in thi.s intcn·ogatory was intended to refer to "electronically stored inll.1rmation."
Similarly, Counter-Defendants' interrogatories state that the lcml "Ekctronic lnHxmation"
means el.ectronic or magnetic data or information '·as defined in" Rule 196.4, but Rule 196.4
docs not provide any such definition; Amcripro assumes that the defined term "Electronic
Information'' has the ordinary meaning of''clectronic or magnetic data."

        Amcripro objects to lntcn·ogatory No. l on the grounds of overbreadth and vagueness,
and that responding to the entirety of the requested infonuation would subject Amcripro to undue
burden, unnecessary expense, harassment, and annoyance. Even if the scope of the interrogatory
were limited to the Lakeway branch office where Nasserfar, Task, and Gosnay were previously
employed, the request to "identitY' all or the electronically stored inlormation contained at that
branch office would require Amcripro to itemize dozens of Gigabytes or data, Moreover,
Ameripro has already produced      non~privilcgcd   responsive documents, as described below, and
the burden of itcmi;cing those documents \vould be no greater for Counter-Defendants than it
would be for Ameripro. 1

        In addition to the undue burden o!' providing any such listing, the request to identity
electronic infbmmtion ..related to Plaintiffs" (without limiting it to any claims or defenses made
in and relevant to the lawsuil ), is overbroad, vague, and c~11ls tor infom1ation cxc1.-cding the scope
of permissible discovery under Tex. R. Civ. P. 192.3(a). Amcripro also objects to the request for
..characteristics oflhc infbnnation'' as vague and unintelligible.



  1
    The dcctronic infmmation which Ammipro has alrc.:ady produced, as wdl as the 26,000+ documents
that Countcr-Dctcndants have supplied in response to th~.: Temporary Injunction Order. by themselves. are
among the documenrs "related to" the three individual Coum..:r-Dcfendants: the Court's Temporary
Injunction Order found that Cmmh:r-Defcndants misappropriated rhat information ''belonging h)
Ameripro," that Counter-Defendants wrongfully took it ·'from Amcripro's computer n.:.\twork" and
premises. and that they •·attempted to permanently destroy Aml:!ripro documents and fiks."
                                                    4

                                                                                                            14
        Subject to and without waiving the foregoing objections. at the May 27, 2015 hearing on
Ameripro's ap,,lication for Temporary Injunction, Amcripro gave opposing counsel a thumb
drive which contains forensic images ofthc electronic and magnetic data stored on the Ameripro
laptops that had been issued to Michael H. Nasscdltr, Michael E. Task. and Tycord R Gosnay
(the "Individual Counter~Dcfcndants"}, and oppo~ing counsel acknowledged his receipt of that
disk on the record at the hearing; that information is incorporated herein by reference pursuant
Lo Tex. R Civ. P. 58 and l 97.2(c). In addition, those laptops (and their serial and model
numbers), arc identified in deposition Exhibits 25, 80, 153, 157, and 158 in this lawsuit As
stated in James Anagnos' and Roy Rector's deposition testimony in this cause, and in Mr.
Rector's testimony at the Temporary Injunction hearing, the three laptops were delivered by l\1r.
Anagnos to Amcripro's computer forensic expert Roy Rector. Pursuant to Tex. R. Civ. P. 58.
193.5, and 197.2Cc), Mr. Anagnos' and Mr. Rector's identity. the details of the delivery of that
information, the dates when the delivery was made, and other requested information are set forth
in detail in those deposition transcripts and exhibits, in Ameripro 's responses to requests Cor
disclosure, and in Mr. Rector's expert files which have been produced in this cause (including
APF0028145-28171, APF0028l81-28255. and APF0028259-283). In addition, Amcripro has
already produced to Counter-Defendants in discovc1y copies of the electronic infbnnation and
electronically stored information .. related to" the Counter-Dercndants; in lieu of identifying each
of those documents, Amcripro refers Counter-Defendants to Bates numbers APFOOOOOOl
through APF0028283 (including expert materials relating to Mr. Rector's work) {i-om
Amcripro's document. production and supph:mcnts thereto, pursuant to Tex. R. Civ. P. 197,2(c).
Aside from the three laptops discussed above, the ''storage devices" for electronic or magnetic
data or intbm1ation consists of Amcripro's computer network system (lo which the Lakeway
office was linked) which continues to he located at Ameripro's oflices, Arneripro came into
possession of that computer network at least as early as 2003 when the company was formed
(and in any event before the January 1, 2012 date specified in this interrogatory), and Amcripro
has continuously been the custodian orthat t..:ompulcr network system. Amcripro docs not have a
special "name" l~1r its computer network.


INTERROGATORY NO. 2: Separately and distinctly. as to Oak Mortgage. state. separately
and distinctly, as to each claim or cause or action a~sertcd as a cross-claim by Defendant against
Oak Mortgage, the amount or damages Defendant seeks from Oak Mortgage. the identity of
documents or records, separately and distinctly. supporting Detcndant's claimed damages for
each cause of action or claim, the identity of persons with knowledge of such claimed damages,
and the method and means Defendant used to calculate the claimed damages.

       ANSWER:

       This interrogatory inquires about matters described in Tex. R. Ci·v. fl. l94.2(d).
Therefore, in the event that Amctipro amends or supplements this answer at a later date,
~mcripro a.-.scrls its right to exclude its prior answer from e-vidence or from usc in impeachment.
pursuant to Tex. R. Civ. P. 197.3.

       Amctipro objects to the request to list "the identity of documents or records. separately.
and distinctly," on the ground that the requested ilcmizatiun cxccl.!ds 26,000 documents, is
overbroad, and providing thai identification would subject Ameripro to undue burden.
                                                5

                                                                                                       15
unnecessary expense, harassment, and annlly:mcc, and on the ground that It exceeds the scope of
Rule !97's requirements ,~..-hich allow a party to ask fbr a description "in general" of the ·•factual
bases for the party's claims or dclcnscs" and not "'Lo marshal all or its available proof'' that it
intends to oiTcr aL triaL TI1c Temporary Injunction Order which the CourL issued against
Counter-Defendants commanded thc.~m to provide Amcripro's expert with lorcnsic images of all
original source media which contain or did c.~ontain "Amcripro li.les or infonmttion." The thumb
drive of images that Counter-Defendants have supplied in response to the Temporary lrliunction,
alone, conlains over 26,000 Amcripro coniidcntial spreadsheets, including lists of Amcripro
boJTowcrs and Amcripro 's internal linancial records. 'l'hcy arc among the thousands or stolen
documents \Vhich support each of Amcripro's damage claims against Oak Mortgage and the
other Counter-Defendants: those 26,000-r spreadsheet:-; arc part oC the conlidential inlormation
"belonging to Amcripro" which the Court stated in the Temporary Injunction Order were
wrongfully "taken rrom Amcripro 's computer network and premises.''

        Ame.ripro further objects to lhc interrogatory as harassing, in that Coufllcr-Dclcndanls
have refused to produce documents that Amcripro would usc in calculating Ameripro 's
disgorgement damages, as described in Ameripro 's pending Second Motion to Compel
Production of Documents. Part of Amcripro~s damngcs claims against all Counter-Defendants
consist of disgorgemcnt retncdics. The Cowi \; ·rcmporary Injunction found that Amcripro has a
''probable right of recovery and likelihood o!' success on the merits of its claims." Despite that
iact, Counter-Defendants have refused to produce documents responsive to Amcripro 's Second
Set of Requests for Production, which would enable Amcripro to calculate its disgorgcrncnt
damages claims. Amcripro will provide that disgorgcmcnL calculation when Counter-Defendants
produce the source documents responsive to Amcripro 's second set of requests for production.

       Subject to and without waiving the llwcgoing       o~jcctions,   Amcripro fut1hcr amrwcrs as
follows.

       Di'>gorgement. Amcripro seeks disgorgcmcm damages against all Counter-Defendants.
As to Oak Mortgage, Ameripro seeks disgorgcmcnL based on Oak Mortgage's conversion,
misappropriation, knowing participation in and aiding and abcning the Individual COLmtcr-
Dcfendants' breaches of llduciary duty, recovery Cor unjust enrichment as statutorily allowed
under Tex. Civ. Prac. & Rem. Code ~ l34AJ}04(a) (the Texas Unitorm Trade Secrets Act or
"TUTSA"), and conspiracy with the Individual Counter-Defendants in connection with their
breaches of fiduciary duty and acts of conversion nnd misappropriation.

         Disgorgcment damages (including unjust enrichment) against Oak Mortgage ate based on
the income t.hat it and the other CounLer-Derendants have n~ccivcd for their new Lakev.·ay ollkc
since January 16, 2015, and the other benefits that Oak Mot1gage derived from having access to
Amcripro's confidential information (including being able to gauge the viability of opening a
Lakeway office and in shortening the normal time It would Lake to open a new bnmch). As
shmvn as the hearing on Amcripro's Temporary I11Junction application and in depositions in this
cause, Countcr-Dclcndants' commission or the conduct set out in the First Amended
Counterclaim (including their conversion und misappropriation of Amcripro's intcmal linancial
data and cu~tomcr infomuttion. and commission and knowing participation in breaches of
fiduciary duty) enabled Oak Mortgage and the other Countcr·Dcfcndants to assess the financial
viability of opening a branch office in that same locale as Ameripro. to jumpstart the opening of
                                                 6


                                                                                                         16
a competing branch office in sh01iencd time and commensurate cost savings, to unfairly compete
fbr Amctipro 's customers, Lo avoid the expense of gencmting fom1s and templates and compiling
spreadsheets and contact list infom1ation, to compare internal Amcripro pricing infbrmation in
setting their own pricing, to wrongfully obtain the value of using Amcripro 's conlidcntial and
proprietary information vvithout authoriLaliou, and to crrcctivcly duplicate Amcripro 's business,
among olhcr wrongful bendits they gained through their conduct Amcripro is entitled 10
recover from Countcr~Defendants. jointly and severally. disgorgemcnt of the value or those
receipts, avoided costs, and other benefits, including but not limited to the value of the above
bcnelits and of their unlicensed usc or the property which they took from Amcripro. I'o date,
however, Countcr-Delcndants have refused to produce that information in response to
Amcripro's second set of requests for production, as needed for Amcripro's calculation.
Amcripro reserves the right to supplement with its calculation or disgorgcment damage amounts,
once Counter-Defendants comply with discovery by producing documents responsive to
Amcripro 's second set of requests for production.

        Actual damages. Amcripro also seeks actual damages against all Counler-Detcndants.
Jointly and severally. As lo Oak Mortgage, Ameripro seeks actual damages based on Oak
Mortgage's knowing participation in and aiding and abetting of the Individual Counter-
Defendants' breaches of fiduciary duty, misappropriation, conversion. hHiious interference with
contract, violations ofTcx. Civ. Prac. & Rem. Code* 143.002 and Tex. Civ. Prac. & Rem. Code
~ l34A.004, and its conspiracy with lhc other Counter-Defendants in the commission or those
violations. Those actual damages over a foreseeable twelve-month period include Counter~
Defendants' joint and several liability for the dcstmction or the mortgage practice at Amcripro 's
Lakeway office, which was proximately caused by Oak Mortgage's (and each of the other
Counter-Defendants') commission or each of those violations, in the amount of $1 ,974,405.77.
multiplying Amcripm's average gross margin by the total production volume loan origination
volume lor 2014 for the Lakeway branch oCiicc.

         Reasonable rovaltv. As set fmth in Amcripm' s First Amended Petition, Amcripro is also
entitled to a reasonable royalty lor Counter-Defendants' unauthorized disclosure andlor use of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem. Code§ 134A.004(a). Pursuant to that
section, Amcripro will also present an alternate damage model measured by imposition of
liability for a reasonable royalty against Oak Mortgage and the other Countcr-Dclcndams for
their unauthori.t~:d usc or disclosure of Ameripro 's trade secret information (as defined in that
statute). Amcripro reserves the right to supplement this portion of its answcn\<ith its calculation,
once Counter-Defendants comply with discovery by producing documents responsive to
Ameripro 's second set of requests for production .

       .4ttornevs' lees and coMs.     Amcripro seeks to recover its reasonable and necessary
attorneys' lees from all Cou.ntcr-Defcndanls, including Oak Mortgage. Amcripro's fcc recovery
against Oak Mortgage is based on Ameripro's claims under Tex. Civ. Prac. & Rem. Code              *
143.002 and Tex. Civ. Prac. & Rem. Code ~ 134A.005. Amcripro's calculation or reasonable
and necessary fees is based on the !actors set forth in Texas Di~ciplinary Rule of Professional
Conduct 1.04 and the Arthur Amle1:-.;en & Co. v. Perry Equipment Co., 945 S.W.2d 812,818-19
(Tex. I 997) line of decisions. Because of the interrelated nature of Ameripro's contract and
stalulory claims with the other causes or action that Amcripro has asserted, and with the defenses
that Plaintiffs/Counter-Defendants have raised. their prosecution entails proof of essentially the
                                                 7

                                                                                                       17
same facts, and the discrete legal services that i\mcripro 1s attorneys have pcrfonncd advance
both recoverable and unrecoverable claims and defenses Amcripro asserts in this matter. 95% of
the legal services Amcripro's altomcys and paralegals per!bnncd would have been necessary in
connection with Amcripro's contract claims. 95% would have been necessary in connection with
Amcripro's TUTSA claims, 95% wouiJ have been necessary in connection with Amcripro's
Section 143.002 claims (even if Amcripro's attorneys and paralegals had not devoted pretrial and
trial work specifically toward claims for which attorneys' Icc recovery is not statutorily allow·cd
or to Amcripro's defense of Counter-Defendants' claims), and 95% of the legal services
Ameripro's attomcys and paralegals performed would have been ncccssaty even 11· Amcripro did
not assert claims for which no tee recovery is permitted. Because of the joint nature of Counlcr-
Dc!cndants' wrongful conduct. 95~o of the legal services Amcripro's attorneys and paralegals
performed would have been ncccssa1y as to each Counter-Defendant and on each of the claims
for which that Counter-Defendant is statutorily liable lilr auomeys' j(.~cs, even if the other
Counter-Defendants (or any of them) were not parties in the lawsuit Through July 31, 2015,
that reasonable and necessary amount totals $200,669. Pursuant to Tex. R. Civ. P. 5R and
193.5(a)(2), Amcripro also adopls by reference its testifying expert designations set out in its
responses to requests for disclosure (under Rule 194.2(f) relating to aUomcys' fees).

       Er:emplarv damage.~. Amcripro seeks to recover punitive/exemplary damages against all
Counter-Dercndants. including Oak Mortgage. Ameripro's recovery of plmitivc 1cxcmplary
damages against Oak Mortgage is based on Oak Mortgage's knO\ving participation in and aiding
and abetting of the Individual Counter-Defendants' breaches of fiduciary duty, misappropriation,
conversion, tortious interference with contract, and violations or Tex. Civ. Prac. & Rem. Code §
134A.004. Ameripro's punitive.'cxcmplary damages against Oak Mortgage is the greater o( i)
two times the amount of its economic damages (including disgorgemcnt and actual damages)
plus any noneconomic damages fhund by the jury, or ii) $200,000 (as authorized under Tex. Civ.
Prac. & Rem. Code § 4 L008), and/or twice the amount of disgorgcmcnt and actual damages
aw·ardcd to Amcripro (as authorized under Tex. Civ. Prac. & Rem. Codes l34A.004).


INTERROGATORY NO. 3: Sepamtely and distinctly, as to Michael Nasscrfar, state,
separately and distinctly, as to each claim or cause of action asserted as a cross-claim by
Dctcndant against Michael Nasscrfar, the amount of damages Defendant seeks from Michael
Nasscrfar, the identity of documents or records. s~.!paratcly and distinclly. supporting Defendant's
claimed damages for each cause of action or claim, the identity of persons with knmvlcdgc of
such claimed damages, and the method and means Defendant used to calculate the claimed
damages.




       This inlcJTOgatory inquires about matters described in Tex. R. C'iv. P. l94.2(d).
Therefore, in the event that Amcripro amend~ or supplements this answer at a later date.
Ameripro asserts its right to exclude its prior answer from evidence or rrom usc in impeachment,
pursuant. to Tex. R. Civ. P. 197.3.

       Ameripro objects to the request to list ·•the identity of documents or rccorck separately,
and distinctly:· on the ground thai the requested itemization exceeds 26,000 documents. is
                                                 R

                                                                                                       18
ov~rbroad,   and providing that identification would subject Amcripro to undue burden.
unnecessary expense, harassment and annoyance, and on the ground that it exceeds the scope of
Rule !97's requirements which allow a party to ask for a description "in general" of the "factual
bases for the party's claims or dclcnscs'' and not "to marshal ali of it~ available prool" thal it
intends to ofrcr at trial. The Temporary Injunction Order which the Court issued against
Counter-Defendants commanded them to provide Amcripro 's expert with forensic images or all
original source media which contain or did contain "Amcripro files or information.'' The thumb
drive of images that Counter-Defendants have supplied in response to the Temporary fnjunction,
alone, contains over 26,000 Amcripro confidential spreadsheets, including lists of Ameripro
borrowers and Ameripro's internal linancial records. They arc among the thousands or stolen
documcnls which support each of Amcripro 's damage claims against Nasserfar and the other
Counter-Defendants: those 26JJOO+ spreadsheets arc part of the confidential information
"'belonging to Amcripro" which the Court stated in the Temporary Injunction Order Wt'fl.!
wrongfully ''taken from Ameripro 's computer network and premises."

        Ameripro further objects to the inlcn·ogalory as harassing, in that Counter-Dclendanls
have refused to produce documents that Amcripro would use in calculating Ameripro 's
disgorgemcnt damages, as described in Amcripro 's pending Second Motion to Compel
Production or Documents. Part ol Ameripro 's damages claims against all Counter-Defendants
consist or d)sgorgemcnt remedies. The Court's Temporary lnjunction found that Ameripro has a
"probable dght of recovery and likelihood or success on the merits of its daims." Despite that
fact, Coumcr-Defcndants have refused to produce documents responsive to Amcripro 's Second
Set of Requests for Production, which would enable Amcripro to calculate its disgorgcmcnt
damages claims. Amcripro will provide thal disgorgcmcnt calculation when Counter-Defendants
produce the source documents responsive to Amcripro 's second set of requests for production.

       Subject to and without waiving the foregoing    o~jections,   Amcripro further answers as
lbllows.

        Disgorr:ement. Amcripro seeks disgorgcmcm damages against all Countcr-Dc!cndants.
As to Michael Nasserfar, Ameripro ~eeks disgorgcmcnt based on Nasscrfar's convcrsi.on,
misappropriation, breaches or fiduciary duty, recovery for unjust emichrnent as statutorily
aulhoriLcd under Tex. Civ. Prac. & Rt'm. Code § 134A.004(a), and conspiracy with the other
Counter-Defendants in connection with their breaches of tiduciary duty (and knowing
participation in and aiding and abetting of same) and acts of' conversion.

       Disgorgcmcnt damages (including unjust enrichment) against Nasscrlur arc based on the
income that he and the other Counter-Defendants have received for their new Lakeway oflicc
since January 16, 2015, the other benefits that they derived !'rom having access to Ameripro 's
confidential inl()mmtion (including being abk to gauge the viability or opening a Lakeway office
and in shortening the n01mal time it \Vtmld take to open a new branch), and for forfeiture of
amounts that Ameripro paid to Nasser1:1r during the time period he was breaching his fiduciary
duties and was engaged in conversion and violations of SccLion l34A.OO I, et seq. (which began
at least as early as October 30. 2014}. As shown as the hearing on r\meripro's Temporary
Injunction application and in depositions in this cause. Countcr-Dclcndants' commission of lht~
conduct set out in the First Amended Counterclaim (including their conversion and
misappropriation of Ameripro 's internal !inancial data and customer infonnalion, and
                                                9

                                                                                                     19
commission and knowing participation in breaches of Jiduciary duty) enabled Naf\scrfar and the
other Countcr"Defendants to assess the financial viability of opening a branch ortlcc in that same
locale as Ameripro, to jumpsta1t the opening of a competing branch otlice in shortened time and
commensurate cost savings, to unfairly compete for Amcripro's customers, Lo avoid the expense
of generating forms and templates and compiling spreadsheets and contact list information, to
compare internal Ameripro pricing information in setting their own pricing. to wrongfully obtain
the value of using Amcripro's con1idcntial and proprietary information without authorization,
and to cfTcctivcly duplicate Amcripro 's business" among other wrongful bcnctits they gained
through their conduct. Amcripro is entitled to recover from Counter-Defendants. jointly and
$cvcrally, disgorgcmcnt of the value or those receipts. avoided costs, and other benefits.
including but not li.mitcd to the value of lhc above benefits and of their unlicensed use of the
property which they took n·om Amcripro. For forfeiture damages, that amount consist-> of
$103,120.51, consisting of the income Amcripro paid to Nasscrfar fi·om November I, 2014
through the end of his employment, during the period that Nasserib.r was actively breaching his
fiduciary duties, engaged in conversion, in violation of Section 134A.OOJ, et seq., and in breach
or his contracts.

       For disgorgcmcnt or amounts that Counter-Defendants have received lor their new
Lakeway office since January 16, 20 !5, Counter-Defendants have refused to produce
information in response to Amcripro's second set of requests for production, as needed for
Amcripro's calculation. Ameripro reserves the right to supplement with its calculation of
disgorgemenl damage amounts, once Counter-Defendants comply with discovery by producing
documents responsive to Ameli pro's second set    or
                                               requests for production.

       Actual damages.      As stated above, Amcripro also seeks actual damages against all
Counter-Defendants, jointly and severally. As to NasscrHtr, Amcripro seeks actual damages
based on Nasscrfar's breaches of fiduciary duty, misappropriation, conversion, breaches of his
contracts, violations of Tex. Civ. Prac. & Rem. Code § 143.002 and Tex. Civ. Prac. & Rem.
Code § l34A.004. and his conspiracy with the other Counter-Defendants in the commission of
those violations. Those actual damages over a foreseeable twelve-month period include
Counter-Defendants' joint and scwcral liability for the destruction of the mortgage practice at
Amcripro's Lake"vay office, which was proximately caused by Nasserlar's (and each ofthc other
C'ountcr-Dctendants') commission of each of those violations, in the amount of $1,974,405.77,
multiplying Amcripro's average gross margin by the tolal production volume · loan origination
volume lor 2014 for the Lakc\vay branch olTicc.

        Rea.'wnable rnvaltv. As set forth in Amcripro's First Amended Petition. Ameripro is also
entitled loa reasonable royalty lor Counter-Defendants' unauthorized disclosure and'or use of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem. Code§ 134A.004(a). Pursuant to that
section, Ameripro will also present an alternate damage model measured by imposition or
Uability for a reasonable royally against Nasscrfar and the other Counter-Defendants for their
unauthorized usc or disclosure of Amcripro 's trade secret infbrmation (as de lined in that statute).
Amcripro reserves the right to supplement this portion of its answer with its calculation, once
Cow1tc1·-Defendants comply with discovery by producing documents responsive to Amcripro 's
second set of requests lor production.


                                                 10

                                                                                                        20
       Attornevs · lees and costs. Amcripro seeks to recover its rcasonab!c and necessary
attorneys' fees from all Countcr-Dc!cndants, including Nasscrfar. Amcripro's lee recovery
against Oak Mortgage is based on Amcripro's claims under Tex. Civ. Prac. & Rem. Code §
143.002 and Tex. Civ. Prac. & Rem. Code § l34A.005. Amcripro's calculation of reasonable
and necessary fees is based on the factors set forth in Texas Disciplinary Rule of Professional
Conduct 1.04 and the Arthur Andersen & Co. v. Perry Equipment Co., 945 S. W.2d 812, 818-19
(Tex. 1997) line of decisions. Because or the interrelated nature of Ameripro's contract and
statutory claims with the olhcr causes of action lhat Ameripro has asserted, and with the dctcnscs
that Plaintifis!Countcr-Defcndants have raised, their prosecution entails proof of essentially the
same facts, and the discrete legal services thai Ameripro's attorneys have pcrlormed advance
both recoverable and unrecoverable daims and dercnscs Ameripro asserls in this matter. 95°-o of
the legal services Amcripro's attomcys and paralegals pcrfonncd would have been ncccssal)' in
connection with Amcripro 's contract claims. 95% would have been necessary in connection with
Amcripro 's TUTSA claims, 95%. would have been necessary in connection with Amcripro 's
Section 143.002 claims (even if Amcripro's attorneys and paralegals had not devoted pretrial and
trial work specifically toward claims lor which attorneys' fee recovery is not statutorily allowed
or to Amcripro's defense of C'ounter~Defcndants' claims), and 95% or the legal services
Ameripro's ~Ulorneys and paralegals perlhm1ed would have been necessary even if Amcripro did
not assert claims for vvhich no Icc recovery is permitted. Because of the joint nature of Counter~
Defendants' wrongfhl conduct. 95o.;, or the legal services Ameripro's attorneys and paralegals
performed would have been necessary as to each Counter-Defendant and on each of the claims
for which that Counter-Defendant is statutorily liable ror attorneys' tees, even i r the othl'r
Countcr·Dcfcndants {or any of them) were not parties in the lawsuit. Through July 31, 2015,
that reasonable and necessary amount totals $200,669. Pursuant to Tex. R. Civ. P. 58 and
193.5(a)(2), Amcripro also adopts by reference its testifying expert designations set out in its
responses to requests for disclosure (under Rule 194.2((} relating to attorneys' lees).

        Eremplary damages. Ameripro seeks to recover punitivc 1cxemplat-y damages against all
Countcr-Dclcndants, including Nasserfar. Amcripro's recovery of punitivctcxemplary damages
against Nasscriar is based on his breaches of liduciary duly, misappropriation. conversion. and
violations of Tex. Civ. Prac. & Rem. C\lde ~ 134A.004. Ameripro's punitive/exemplary
damages against Nasscrfar is the greater of i) two times the amount or its economic damages
(including disgorgcmcnt and actual damages) plus any noneconomic damages found by the jury,
or ii) $200,000 (as authorized under Tex. Civ. Prac. & Rem. Code § 41.008), and.·or l\\icc the
amount of disgorgement and actual damages ::n.varded to Amcripro (as authorized under Tex.
Civ. Prac. & Rem. Code* 134A.004).


r~TERROGATORY ~0. 4: Separately and distinctly, as to Michael Task, state. separately
and distinctly. as to each claim or cause of action asserted as a cro~s-claim by Defendant against
Michael Task, the amount of damages Dc!cndant seeks from Michael Task, the identity of
documents or records, separately and distinctly, supporting Defendant's claimed damages for
each cause of action or claim, the identity or persons with knowledge of such claimed damages,
and the melhod and means Dctcndant used to calculalc the claimed damages.

       A~SWER:


                                               II

                                                                                                     21
       This interrogatory inquires about matter!' described in Tex. R. Civ. P. 194.2(d).
Thcrclbrc, in Lhc event that Amcripro amends or supplements thi~ answer at a later date,
Amcripro asserts its right to exclude its prior ans\vcr from evidence or from use in impeachment.
pursuant to Tex. R. Civ. P. 197.3.

        Amcripro objects to the t·cqucst to list ''the identity of documents or record~. separately,
and distinctly," on the ground that the requested itemization cxcl.!eds 26,000 documents, is
overbroad. and providing that identification would subject Ameripro to undue burden,
unnecessary expense, harassment. and annoyance, and on the ground thnt it exceeds the scope of
Rule !97's requirements -...·hich allow a party to ask lor a description "in general" of the "ractual
bases for the party's claims or defenses" and not "to marshal all of its available proof" that it
intends to oiTer at triaL The Temporary Injunction Order which the Court issued against
Counter·Defendants commanded them to provide Ameripro's expert with forensic images of all
original source media which contain or did contain ·'Amcripro files or infonnation.'' The thumb
drive of images that Counter· Defendants have supplied in response to the rcmporary Injunction,
alone, contains over 26,000 Amcripro confidential spreadsheets, including lists of Amcripro
borrowers and Amcripro's internal linancial records. They are among the thousands or stolen
documents which support. each of Amcripro's d.1magc claims against Task and the other
Counter-Defendants: those 26,000·+ spreadsheets arc part of the contidential information
•·belonging to Ameripro'' which the Court stated in the Temporal)' Injunction Order \\ierc
wrongfltlly "taken from Amcripro 's compuLcr network and premises.''

          Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have rcluscd to produce documents that r'\mcripro would usc in calculating Amcripro 's
disgorgcmcnt damages, as described in Amcripro's pending Second Motion to Compel
Production of Documents. Part of Arncripro's damages claims against all Counter-Defendants
consist of disgorgemcnt. remedies. The Court's Temporary Injunction found that Amcripro has a
.. pn.1bable right of recovery and likelihood of "ucccss on the merits of its claims." Despite that
iact. Counter-Defendants have refused to produce documents responsive to Amcripro 's Second
Set of Requests f(w Production, which \.vould enable Ameripro to calculate its disgorgcmcnt
damages claims. Ameripro \Viii provide thai disgorgcment calculation when Counlcr-D<:fendants
produce the source documents responsive to Amcripro's second set of requests for production.

       Subject   to   and without waiving the foregoing objections, Amcripro fmthcr answers as
follows.

        Disgnrgeme111. Amcripro seeks disgorgcmcnl damages against all Ccnmtcr-Dcfcndunts.
As to Michael Task, Amcripro seeks disgorgemenl based on Tas.k's conversion,
misappropriation, breaches of tiduciary duty, recovety for unjust enrichment as statutorily
authorized under Tex. Civ. Prac, & Rem. Code § l34A.004(a), and conspiracy with the other
Countcr~Dcfcndants in connection with their breaches of liduciary duly (and knowing
participation in and aiding and abetting or same) and acts of conversion.

        Disgorgcmcnt damages (including unjust enrichment) against Task arc based on the
income that he and the other Coumcr-Dcfcndants have received fi.•r their new Lakev.-·ay office
since January 16, 2015, the other benefits that. they derived from having access to Amcripro's
confidential infi.xmation (including being able to gauge the viability or opening a Lakeway oflice
                                                 12

                                                                                                        22
and in shortening the normal time it \vould take to open a new branch), and for forfeiture of
amounts that Amcripro paid to Task during the time period he w·as breaching his liduciary duties
and was engaged in conversion and violations of Section l34A.OO I, er seq. (which began at least
as early as October 30, 20 14). As shown as the hearing on Amcripro 's Temporary Injunction
application and in depositions in this cause, Countcr-Ddendants' commission of the conduct set
out in the First Amended Counterclaim (including their conversion and misappropriation of
Ameripro's internal financial data and customer infonnation, and commission and knowing
participation in breaches or fiduciary duty) enabled Task and the other Counter-Defendants to
assess the financial viability of opening a branch onicc in that same locale as Ameripro, to
jumpslart the opening of a competing branch onicc in shortened time and commensurate cost
savings, to unfairly compete for Amcripro's customers, LO avoid the expense or generating fOrms
and templates and compiling spreadsheets and contact list infommtion, to compare internal
Amcripro pricing infbrmation in setting their mvn pricing, to wrongfully obtain the value of
using Amcripro's conJidential and proprietary inforn1ation without authorization, and to
e11ectively duplicate Ameripro's business, among other wrongful benefits they gained through
their conduct. Ameripro is entitled to recover from Counter-Defendants, jointly and severally,
disgorgement of the value of those receipts, avoided costs, and other bcnc1its, including but not
limited to the value of the above bene tits and of their unlicensed use of the property which they
took ti·om Amcripro. For fbrfciturc damages, that amount consists or $34,861.73, consisting of
the income Ameripro paid to Task from November 1, 2014 through the end of his employment,
during the period that Task was actively breaching his tiduciury duties, engaged in conversion, in
violation of Section 134A.00l, et seq., and in breach ofhis contracts.

       For disgorgemcnt of amounts that Counter-Defendants have received for their nc•v
Lakeway otrice since January 16, 2015, Counter-Defendants have refused to produce
information in response to Amcripro's second set of requests lor production. as needed fix
Ameripro's calculation. Amcripro reserves the right to supplement with its calculation of
disgorgement damage anwunts, once Counter-Defendants comply with discovery by pmducing
documents responsive to Ameripro's second set of requests for production.

        Actual damages. As stated above, Amcripro also seeks actual damages against all
Counter-Defendants. jointly and severally. As to Task, Ameripro seeks actual damages ba~ed on
Task's breaches of fiduciary duty, misappropriation, conversion, breaches of his contracts,
violations of Tex. Civ. Prac. & Rem. Code ~ 143.002 and Tex. Civ. Prae. & Rem. Code §
134A.004, and his conspiracy with the other Counter-Defendants in the commission of those
violations. Those actual damages over a f(Jrcseeablc twelve-month period include Counter-
Defendants' joint and several liability lor the dcstntction or the mortgage practice at Amcripro 's
Lakeway office, which was proximately caused by Task's (and each of the other Counter-
Defendants') commission of each of those violations, in the amount or $1,974,405.77,
multiplying Amcripro's average gross margin by the total production volume loan origination
volume for 2014 for the Lakeway branch ofticc.

       Reasonable rovaltv. As set lhnh in Amcripro's First Amended Petition. Ameripro is also
entitled to a reasonable royalty for Counter-Defendants· unauthorized disclosure and' or usc of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem. Code § 134A.004(a). Pursuant to that
section, Amcripm will also present an alternate damage model mcasurl.!d by imposition of
liability tor a reasonable royalty against Task and the other Counter-Defendants {or their
                                                13

                                                                                                      23
w1authorizcd usc or disclosure of Amcripro'~ trade secret information (as defined in that statute).
Amcripro reserves the right to supplcmcm this portion of ils answer with Its calculation, once
CountcrMDcfendants comply with discovery by producing documents responsive to Amcripro 's
second set of requests lor production.

         Attornev.s·' tees and costs. Amcripro seeks to recover its reasonable and necessary
attorneys' fees from all Counter-Defendants, including Task. Amcripro's fcc recovct)' against
Oak Mortgage is based on Ameripro's claims under Tex. Civ. Pmc. & Rem. Code§ 143.002 and
Tex. Civ. Prac. & Rem. Code§ 134A.005. Ameripro's calculation of reasonable and necessary
tees is based on the factors set lorth in Texas Disciplinary Rule of Professional Conduct I .04 and
the Arthur Andersen '~ Co. v. Perry Equipmellf Co., 945 S. W.2d 812. R18- I9 (Tex. 1997) line nf
decisions. Because of the interrelated nature or Amcripro's contract and statutory claims with the
other causes of action that Amcripro has asserted, and with the dclcnses that Plaintil'fs . f'ounter-
Dcfcndants have raised, their prosecution entails proof of essentially the same facts, and the
discrete legal services that Ameripro's attorneys have pcrfonm~d advance both recoverable and
unrecoverable claims and defenses Amcripro asserts in this matter. 95% of the legal services
Amcripm's attorneys and paralegals pt.:rformcd would have been necessary in connection with
Amctipro's contract claims, 95~'o would have been necessary in connection \Vit.h Amcripro 's
Tl.JTSA claimii, 95%> ·would have been necessary in connection with Ameripro's Section 143J)02
claims (even if Ameripro's allorneys and paralegals had not devoted pretrial and trial work
specifically toward claims for which attorneys' fcc recovery is not statutorily allowed or to
Amcripro's defense of Countcr-Dctcndants' claims), and 95~'o of the legal scrvict.~s Amcripro's
attorneys and paralegals performed would have been necessary even ir Amcripro did not assert
claims for which no fee recovery is permitted. Because of the joint nature or Counter-
Defendants' wrongful conduct. 95°/o or the legal services Ameripro's auomeys and paralegals
perfonncd would have been necessary as to each Counter-Defendant and on each of the claims
fbr which that Counter-Defendant is statutorily liable tor attorneys' fees, even if the other
Counter-Defendants (\1r any of them) were not parties in the lawsuit. Through July 31, 2015,
that reasonable and necessary amount totals $200,669. Pursuant to Tex. R. Civ. P. 58 and
193.5(a)(2), Amcripro also adopts by reference its testifying expert designations set out in its
responses to requests for disclosure (under Rule 194.2(f) relating to attorneys' fees).

        Etemp/arv damages. Amcripro seeks to recover punitive/exemplary damages against all
Countcr~Dcfcndams.    including Task. Amcripro's recovery of punitive/exemplary damages
against Ta~k is ba~cd Oil his breaches of liduciary duty, misappropriation, conversion. and
violations of Tex. Civ. Prac. & Rem. Code § 134A.004. Ameripro's puni.tivc/cxcmplary
damages against Task is lhc greater of i) two times the amount of its economic damages
(including disgorgcment and actual damages) plus any noneconomic damages found by the jury,
or ii) $200,000 {as authorized under Tex. Civ. Prac. & Rem. Code* 41.008), andlor twice the
amount of disgorgcmcnt and actual damages :w. ardcd to Arncripro (as authorized under Tex.
Civ. Prac. & Rem. Code* 134A.004).


INTERROGATORY NO.5: Separately and distinctly, as lo Ty Gosnay, state, separately and
distinctly, as to each claim or cause of action assc11cd as a cross-claim by Defendant against Ty
Gosnay, the amount of damages Defendant seeks from Ty Gosnay. the identity or documents or
records, separately and distinctly, supporting Defendant's claimed damages for each cause of
                                                 14

                                                                                                        24
action or claim, the identity of persons with knowledge of :-o:uch claimed damages, and the
method and means Defendant used to calculate the claimed damages.

       A~SWER:


       TI1is intcrrogatOJ)' inquires about matters described in Tex. R. Civ. P. 194.2(dl.
Therefore, in the event that Amcripro amends or supplements this answer at a later date,
Amcripro asserts its right to exclude its prior answer from evidence or from usc in impeachment,
pursuant to Tex. R. Civ. P. 197.3.

        Ameripro objects to the request to list '"the identity of documcnls or records, separately,
and distinctly," on the ground that the requested itemization exceeds 26,000 documents. is
overbroad, and providing that identification \\Ould subject Ameripro to undue burden,
unnecessary expense, harassmcm, and annoyance, and on the ground that it exceeds the scope of
Rule 197's requirements which allow a party to ask lor a description "in general" of the "factual
bases Cor the party's claims or defenses" and not ··to marshal all of its available proor· lhat it
intends to offer at trial. The Temporary Injunction Order which the Court issued against
Countcr~Dcii:ndants commanded them to provide Amcripro's expert with forensic images of all
original source media which contain or did contain "Amcripro Iiles or inlormalion." The thumh
drive of images that Counter· Defendants have supplied in response to the Tcmrorary Injunction,
alone, contains over 26,00() Amcripro confidential spreadsheets, including lists of Ameripro
borrowers and Amcripro't> internal financial records. They arc among the thousands of stolen
documents which support each of Amcripro's damage claims against Gosnay and the other
Counter-Defendants: those 26~000+ spreadsheets arc part of the con fidcntial information
''belonging to Ameripro" which the Court stated in the Temporaty Injunction Order were
wrongfully ''taken from Amcripro 's computer network and premises."

        Ameripro further objects to the interrogatory as harassing, in that Cotmter~Dcfcndants
have refused to produce documents that Ameripro would usc in calculating Amcripro ·s
disgorgement damages, as described in Amcripro's pending Second Motion to Compel
Production of Documents. Part of Ameripro's damages claims against all Counter-Defendants
consist of disgorgemenl. remedies. The Court's Temporary Injunction found that Amcripro has a
"'probable right of recovery and likelihood ol' success on the merits of its claims." Despite that
fact, Countcr-Dclcndants have refused to produce documents responsive to Amcripro's Second
Set of Requests lor Production. which would enable Amcripro to calculate its disgorgemcnt
damages claims. Amcripro will provide thai disgorgcmcnl calculation when Countcr-Detbndants
produce Lhe source documents responsive to AmL'ri pro's second set or requests for production.

       Subject to and without waiving the foregoing objections, Amcripro further answers as
follows.

        DZ:,·gorgemem. Amcripro seeks disgorgemcnt damages against all Counter-Defendants.
As Lo Tycord Gosnay, Amcripro seeks disgorgcmcnt based on Gosnay's convcr,ion.
misappropriation, breaches of fiduciary duty, recovery for unjust enrichment as statutorily
                                                     s
authorized under Tex. Civ. Prac. & Rem. Code l34A.OO.t(a). and conspiracy with the other
Counter·Defendanls in connection \vith thdr breaches or liduciary duty (and knowing
participation in and aiding and abetting of same) and acts of conversion.
                                                15
        Disgorgcmcnt damages (including unjust enrichment) against Gosnay arc based on the
income that he and the other Counter-Defendants have received for their new Lakeway oflicc
since January 16, 2015, the other benefits that they derived lrom having access to Amcripro's
confidential information (including being able to gauge the viability of opening a Lakeway office
and in shortening the normal time il would take to open u new branch), and Cor forfeiture of
amounts lhat Amcripro paid to Gosnay during the time period he \vas breaching his Jiduciary
duties and was engaged in conversion and violations ofScction 134A.001, et sf!q. (whkh began
at least as early as October 30, 2014). As shown as the hearing on Ameripro's Temporary
Injunction application and in depositions in this cause, Counter-Defendants' commission or the
conduct set out in the First Amended Counterclaim (including their conversion and
misappropriation of Amcripro 's internal financial data and customer infomtation, and
commission and knowing panicipation in breaches or fiduciary duty) enabled Gosnay and the
other Counter-Defendants to assess the financial viability of opening a branch oiTice in that same
locale as Amcripro, lo jumpstat1 the opening of a competing branch oflice in shortened time and
commensurate cost savings. to unfairly compete for Amcripro's customers. to avoid the expense
of generating forms and templates and C<>mpiling spreadsheets and contact lisl infonnation, to
compare internal Ameripro pricing infl.1m1ation in setting their own pricing, to wrongfully obtain
the value of using Ameripro's contidcmial and proprietary information without authoriLation,
and to effectively duplicate Amcripro's business, among other wrongful bl.!ncfits they gained
through their conduct. Amcripro is entitled to recover trom Counter-Defendants, jointly and
severally, disgorgcmcnl of the vah.1c of those receipts, avoided costs, and other benefits.
including but not limited to the value of the above benefits and of their unlicensed usc of the
property which they took from Ameripro. For forfeiture damages, that an10unt consists of
$21.709.73. consisting ofthc income Amcripro paid w Gosnay from November l, 2014 through
the end of his employment, during the period Lhat Gosnay was actively breaching his fiduciary
duties, engaged in conversion, in violation of Section 134A.00 I, et seq., and in breach of his
contracts.

        For disgorgemcnt of amounts thai Counter-Defendants have received for their new
Lakeway otlice since January l6, 2015, Counter-Defendants have refused to produce
ini(lmtation in response to Ameripro' s sccond sct of rc4ucsl~ l~Jr production, as needed l()r
Amcripro's calculation. Amcripro reserves the right to supplement with its calculation of
disgorgement damage amounts. once Countcr-Detendants comply with discovery by producing
documents responsive to Ameripro's second set of requests for production.

        Actual damages. As stated ab<.wc, Amcripro also seeks actual damages against all
Countcr~Ddcndants,   jointly and severally. As lo Gosnay, Ameripro seeks actual damages based
on Gosnay's breaches of fiduciary duty, misappropriation, conversion, breaches of his contracts.
violations of Tex. Civ. Prac. & Rem. Code § 143.002 and Tex. Civ. Prac. & Rem. Code §
t34A.004; and his conspiracy with the other Counter-Defendants in the commission of those
violaLions. Those actual damages over a lbrcsecablc t\velve-month period include Counter-
Defendants' joint and several liability for the dcstntction or the mortgage practice at Amcripro 's
Lakeway office, which was proximately caused by Gosnay's (and each of the other Counter-
Defendants') commission of each of those violations. in the amount or $1,974.405.77,
multiplying Amcripro's average gross margin by the total production volume ' loan origination
volume for 2014 for the Lakeway branch orticc.
                                                16

                                                                                                      26
         Reasonable rovdlt}". As set lot1h in Amcripro's First Amended Petition, Ameripro is also
entitled to a reasonable royalty for Count~r-Dcfendants' unauthorized disclosur~ andior use of its
trade secrets pursuant to TUTSA, T~x. Civ. Prac. & Rem. Code ~ 134A.004(a). Pursuant to that
section, Amcripro will also present an altemat~ damage model measured by imposition of
liability lor a reasonable royally against Gosnay and tht: other Counter-Defendants lor their
unauthorized usc or disclosure ofAmcripro's trade secret inlonnation (as defined in that statute).
Amcripro rc:.encs the right to supplement this porlion or its answer with ils calculatton, once
Counter-Defendants comply with discovery by producing documents responsive to Ameripro 's
second set of requests for production.

       Attornevs'   tees   ami costs.   Amcripro seeks to recover its reasonable and necessary
attorneys' fees from all Counter-Defendants. including Gosnay. Amcripro 's Icc recovery againsl
Oak Mortgage is oased on Amcripro's claims under Tt~x. Civ. Pruc. & Rem. Code~ 143.002 and
Tex. Civ. Prac. & Rem. Code§ 134A.005. Ameripro's calculation of reasonable and neccss<lly
fee~ is based on the factors set forth in Texas Disciplinary Rule ofProfcssitmal Conduct 1.04 and
the Arthur Andersen '~ Co. v. Perry Equipmc·m Co., 945 S.W .2d 812, 818-19 (Tex. 1997) line of
decisions. Because of the interrelated nature or Amcripro's contract and statutA.1ry claims ..vith the
other causes of action that Amcripro has asserted, and with the defenses that Plaintiffs/Counter-
Defendants have raised, their prosecution entails proof of essentially the same facts. and the
discrete legal services that Amcripro's attorneys lul\e perlonncd advance both recoverable and
unrecoverable claims and defenses Ameripro asserts in this matter. 95%, of the legal services
Ameripro's attomcys and paralegals pcrfom1cd would have been necessary in connection with
Amcripro's contract claims, 95% would have been necessary in connection wilh Amcripro 's
TUTSA claims, 95% would have been necessary in connection with Amcripro 's Section 143.002
claims (even if Ameripro's attorneys and paralegals had not de\·oted pretrial and trial work
speci tically toward claims lor which attorneys' fee recovery is not statutorily allowed or to
Amcripro's defense of Counter-Dcrcndants' claims), and 95%~ of the legal services Ameripro's
attorneys and paralegals pcrform~Zd would have been necessary even if Amcripro did not assert
claims for which no lee recovery is permitted.. Because of the joint nature of Counter-
Defendants' wrongful Cl1nduct, 95~., of the legal services Amcripro's attorneys and paralegals
pcrfom!Cd would have been necessary us to each Counter-Defendant and on each of the claims
tor which that Counter-Defendant is statutorily liable for attorneys' fees, even if the other
Counter-Defendants (or any of them) were not pat1ics in the lawsuit. Through July 31, 2015,
that reasonable and necessary amount totals $200.669. Purstwnt to Tex. R. Civ. P. 58 and
 193.5(a)(2). Ameripro also adopts by reference its testifying expert designations set out in its
responses to requests for disclosure (under Rule 194.2([} relating to auorncys' Ices).

        Ex:emplarv damages. Ameripro seeks to recover punitive/exemplary damage::. against all
Counter-Defendants, including Gosnay. Amcripro's recovery of punitivc:cxemplary damages
against Gosnay is based on his breaches of fiduciary duty. misappropriation, conversion, and
violations or Tex. Civ. Prac. & Rem. Code
damages against Gosnay is the greater      or
                                                   *J34A.004. Amcripro's punitive/exemplary
                                             i} two times the amount of its economic damages
(including disgorgcmcnl and actual damages) plus any noneconomic damages found by the jury,
or ii) $200,000 (as aulhoriz<.·d under Tex. Civ. Prac. & Rem. Code§ 41.008), and/or twice the
amount or disgorgcmcnt and actual damages awarded to Amcripm (as authorized under Tex.
Civ. Prac. & Rem. Code§ l34A.004).
                                                 17
I~TERROGATORY ~0. 6:                 Idcnti(y all person:;; (including the last known .::ontact
inrormation) employed at any time within the applicable dales, by Defendant in its IT or
technology division or department and any other employee who had responsibility for
maintaining, reviewing, or assi~>ting in the maintenance and review of any clcclronically stored
information of Defendant, Ddendant's electronic data, computers, database, hard drives, or other
electronic infom1ation.

       A~SWER:


        Amcripro objects to Interrogatory No. 6 on the ground that the open-ended request lor the
identity or every employee who worked in A.mcripro's IT or technology department or division
is overbroad, and is not reasonably limited to persons with knowledge of any relevant fact~.
Su~jcct to and without waiving the foregoing objections, the persons who were responsible for
maintaining Amcripro 's dcctronicaUy stored inforrnation. data, computers, and other electronic
intbrmalion from January l, 201 1 to the present arc Jeremy Robichau, IT Lead, and James
Anagnos, Director - Inlbrmation Tcdmology, Tcnura Holdings, Inc., 8300 N. Mopac
Expressway, Suite 220. Austin, Texas 78759, c'o Susan P. Burton, Graves Dougherty Hearon &
Moody, 401 Congress Ave., Stc. 2200, Austin, Texas 78701. (512) 480-5738.


INTERROGATORY NO. 7: Identify all persons that reviewed, copied, revised or made
changes to. or installed operating systems on. or deleted any electronic Illes or electronically
stored information from any clccu·onic devices that \\·ere in the possession. custody or control of
Michael Nasserfar, Michael Task or Ty Gosnay at any time during thei.r employment with
Dc!endarH, and any and all persons who deleted any information from the laptop computer or
other electronic storage devices of Michael Nasscrfar. Michael Task or Ty Gmmay, and any and
all persons who installed new operating systems on any computer or electronic device previously
in the possession of Michael Nasscrfar, Michael Task or Ty Gosnay during their employment
with Defendant, and, separately and distinctly, identify the dates of such actions, the electronic
devices involved, and the identity, separately and distinctly, of the person or persons who engage
in such activities, and identify the electronic Iiles or clcclronically stored intormation that wa.;;
deleted fmm the computers or clcctronica!ly stored devices in the possession, custody or control
of Michael Nasscrfar, Michael Task or Ty Gosnay at any time.

       A~SWER:


       On January 26, 2015, as part of a mutinc update for company laptops a new operating
system was loaded onto the laptop that Nass..::rfar had used during his employment. Pursuant to
Tex. R. Civ. P. 58 and l97.2(c), Amcripro adopts and incorporates herein by reference the May
l, 2015 deposition testimony oC its expert. Roy Rector, testifying on that subject. Updates \~tould
have been installed by Tcnura IT Support (either Norm Booher or Colin Stewart), and Amcripro
is unaware which updated this particular laptop.



                                                 J8

                                                                                                        28
       However, lhc forensic images that Counter-Defendant$\ have subsequently provided.
including forensic images from Nasscrfar thumb drives and other ek-ctronic devices that the
Temporary Injunction Order commanded Countcr-Dclcndants to return to Amcripro, show that
Nasscrfar did remove confidential records from Amcripro·s computer network system. and kept
possession of that Amcripro property for several monlhs after his cmploymcnr with Amcripro
ended.


J~TERROGA TORY        NO. 8: Identify all Iiies reviewed by Defendant or any of its consultants
from the forensic images of any and all electronic devices of Plaintiffs.

         A~SWER:


        Pursuant to Tex. R. Civ. P. 192.5 and 193.3(a) & (c), Ameripro withholds n·orn this
answer the identity of any of the files that Amcripro 's counsel or their staff have reviewed from
those forensic images, based on the attorney work-product privilege. Counlcr-Dctcndants
provided the forensic images of their ~~lectronic devices after the Cow·t issued its mlings at the
May 26~27, 2015 Temporary Injunction hearing - i.e., well after litigation was not only
anticipated, but actually on lilc. Ameripro will also \vithhold the identity of any lon.msic images
which relate to Amcripro which the undersigned counsel show to any Ameripro in-house
attorneys (as permitted under the Temporary Injunction Order), based on the attomcy work-
product and attorney-client privileges.

        Ameripro also objects to the intcn·ogatory on the grounds of overbreadth, and that
responding to the requested inlortnation would subject Ameripro to w1due burden, unnecessary
expense, harassment, and annoyance, and that it exceeds the scope of Rule 19Ts requirements.
For example, the review that has occurred to date has shown that there are over 26,000 Ameripro
spreadsheets on one Nasserfi:tr thumb drive alone, which Nassertar improperly took ti·om
Ameripro: leaving aside that the specific identity of files reviewed by Amcripro attorneys is
privileged infonnation, itemizing those thousands of documents would also he unduly
burdensome and expensive and is calculated solely to harass.

       Subject to and without waiving the foregoing, Amcripro's testifying expert, Roy Rector,
reviewed all of the files from forensic images that Counter-Defendants delivered on June 3,
2015. As stated at the Tcmportt.ry lnj unction hearing, a purpose of his cxpc11 review was to
ensure that the !om1at of those images complied with the technical fom1at and metadata
requirements that the Court imposed on Counter-Defendants in its injunction against lht:m, as
opposed to review of the substantive content.

        Pursuant to Tex. R. Civ. P. 58, Amcripro also adopts herein by rclercncc its response to
Interrogatory No. 1 above.



J~TERROGATORY ~0. 9: Identify all files duplicated or copied either electronically or in
paper by Defendant or any of its consultant~ rrom the forensic images or any and all electronic
devices of Plaint ills,
                                               19

                                                                                                      29
       A~S\\iER:


        Pursuant to Tex. R. Civ. P. 192.5 and 193.3(a) & (C), Amcripro withholds from this
answer the identity of any of the Iiles that Ameripro 's counsel or their staff have copied or
duplicated from lbrensic images, based on the attorney work~product privilege. Counter-
Defendants provided the forensic images of their electronic devices after the Cowt issued its
rulings at the May 26-27. 2015 Temporary Injunction hearing -i.e., well after litigation ·was not
only anticipated, but actually on file.

        Amcripro also objects to identifying each copy or duplication it makes of any images, on
the ground that the request on ils face w·ould invade the attorney work-product and attorney-
client privileges, and would subject Amcripro to undue burden, unnecessary expense,
harassment. and annoyance, and that it exceeds the scope of Rule l9Ts requirements (for
example, the request would have Arncripro identify each time it makes a copy of a document to
use as an exhibit).

       Subject h> and without waiving the foregoing, Amc-ripro's testifying cxpel1, Roy Rector,
made a forensic copy of the external hard drive that Countcr·Dcfendants delivered on June 3,
2015, for purposes of reviewing whether the rormat of lhe forensic images complied with the
technical tormat and mctadata requirements that the Court imposed on Counter-Dclendants.


l~TERROG.t\ TORY NO. 10: ldcnti!'y all person or persons who have reviewed or have been
provided with electronic or paper iilcs from the forensic images or any and all electronic devices
of Plaintiff:-., and as to each person, separately and distinctly, identify the person or persons and
the files provided to such person or rcvic ..vcd by :<uch person or persons.

       A~SWER:


        Pursuant to Tex. R. Civ. P. 192.5 and 193.3(a) & (c), Ameripro withholds Gwn this
answer the identity of Ameripro's attorneys or their staff who have reviewed or been provided
copies of any tiles from forensic images, based on the attorney work-product privilege. Countcr-
Delendants provided the forensic images of their electronic devices after the Court issued its
rulings at the May 26-27, 2015 Temporary Injunction hearing- i.e., well after litigation was not
only anticipated, but actually on lilc. Ameripro will abo withhold the identily of any forensic
images which relate to Amcripro which the undersigned counsel show to any Ameripro in-house
attorneys (as permitted under the Temporary Injunction Order), based on the attorney work-
product and attorney-client privileges.

        Amcripro also objects to the interrogatory on the grounds of overbreadth, and that
responding to the requested inf(>mlation would subject Aml..!ripro to undue burden. unnecessary
expense, harassment, and annoyance, and that it exceeds the scope of Rule !97's requirements.
There are over 26,000 Amcripro spreadsheets on one Nasserfar lhw11b drive alone, and
identifying each lite that has been "provided" to or "reviewed" by Amcripro altomcys or its
consultants would be unduly bmdcnsomc and calculated solely to harass.

                                                 :w
                                                                                                        30
       Subject to and without waJv1ng. the foregoing, on or about June 3, 2015, Countcr-
DcCendants themselves provided Amcripro 's testifying expert, Roy Rector, with all of the files
that were contained on the thumb drive delivered on June 3. 2015. Pursuant to Tex. R. Civ. P.
197.2(c), Amcripro refers Counter-Defendants to the contents of that thumb drive they provided.
Again, that thumb drive conlained over 26.000 documents, and the burden of itcmit:ing those
contents would be substantially the same for Countcr-Ddendants as it would be lor Ameripro.


lNTERBOGATOI~Y NO. 11: Separately and distinctly, as to Oak Mortgage. state, separately
and distinctly, as to each claim or cause or action asserted as a cross-claim by Defendant against
Oak Mortgage, the amount, if any, of economic loss, damage, specific lost sales transactions and
lost profits, if any, Defendant allegedly suffered as a result of any actions of Oak Mortgage, the
identity of all docum<.'nls or records, separately and distinctly, supporting or forming the bases of
such of Defendant's claimed economic loss, spccitic lost sales transactions and lost prolits, if
any, for each cause of action or claim asscncd by Defendant against Oak Mortgage, and the
identity of all persons with knowledge of such claimed economic loss spccitic, lost sales
transactions and lost profits., if any, allegedly suftcrcd by Defendant and the method and means
Defendant used to calculate the claimed economic, loss spccilic lost sales transactions and lost
profits, if any.

       A~SWER:


        This interrogatory inquires ahout matters described in Tex. R. Civ·. P. I<J4.2(d).
TI1creforc, in the event that Arncripro amends or supplements this ans\vcr at a later date,
Ameripro asserts its right to exclude ils prior answer lrom evidence or from usc in impeachment.
pursuant to Tex. R. Civ. P. 197.3.

         Amcripro objects to the request to list "the identity of all documents or records.
separately, and distinctly," on the ground that the requested itemization exceeds 26,000
documents, is overbroad, and providing that identification would subject Amcripro to undue
burden, unnecessary expense, hara~smcnt, and annoyance, and on the ground that it exceeds the
scope of Rule J 97's requirements which allow a party to ask for a description "in general" of the
•·factual bases f{)r the party's claims or defenses" and not ''to marshal all of its available pronf"
that it intends to offer at trial. The Temporary Injunction Order which the Court issued against
Countcr~Dcfcndants commanded them to provide Ameripro's expert with Gxcnsic images of all
original sow·ce media which contain or did contain "Amcripro files or information." The thumb
drive of images that Counter-Defendants have supplied in n~sponse to the Temporary Injunction.
alone, contains over 26,000 Amcripro confidential spreadsheets. including lists of Ameripro
bonmvcrs and Ameripro's internal financial records. They are among the thousands or stolen
documents which suppon each or Amcripro's economic loss claims against Oak Mortgage and
the other Counter-Defendant~.

        Amcripro further objects to the imcrrogalot)' as harassing, in that Cmmter-Dcl'cndants
have refused to produce documents that Amcripro would usc in calculating Ameripro 's
disgorgement dan1ages, which is part of Ameripro's loss claims. The Court's Temporary
Injunction found that Ameripm has a "probable right of rcc()vcry and likelihood of success ou
                                              21

                                                                                                        31
the merits of its claims." Despite that fact, Cowuer-Detendants have refused to produce
documents responsive to Ameripro's Second Set of Requests for Production, which would
enable Ameripro to calculate its disgorgcmcm damages claims. Amcripro will provide that
disgorgemenl calculation when Countcr-Dclcndants produce the source documents responsive to
Amcripro's second set of requests for production.

       Subject to and without waiving the foregoing objections, Amcripro fw1hcr answers as
follows.

       Disgprgement. Ameripro seeks disgorgcment damages against aU Counter-Defendants.
As to Oak Mortgage, Amcripro seeks disgorgcmcnt based ou Oak Mortgage's conversion,
misappropriation, knowing participation in and aiding and abetting the Individual Counter-
Defendants' breaches of fiduciary duty, recovery lor unjust enrichment as slatutority allowed
                                      *
under Tex. Civ. Prac. & Rem. Code 134A.004(a) (the Texas Uniform Trade Secrets Act or
"TUTSA"), and conspiracy with the Individual. Counter-Defendants in connection with their
breaches of tiduciary duty and acts of conversion.

         Disgorgcmcnt damages (i11cluding unjust enrichment) against Oak Mortgage are based on
the income that it and lhe other Counter-Defendants hav·c received for their new Lakeway oflicc
since January 16, 20 15. and the other benefits that Oak Mortgage derived from having access to
Ameripro's confidential inlormation (including being able to gauge the viability of opening a
Lakeway onicc and in shortening the nom1al time it would lake to open a new branch). As
shown as the hearing on Ameripro 's Temporary Injunction application and in depositions in this
cause, Counter-Defendants' commission of the conduct set out in the First Amended
Counterclaim (including their conversion and misappropriation of Amcripro's imemal linancial
data and customer information, and commission and knowing participation in breaches of
fiduciary duty) enabled Oak Mortgage and the other Cmmtcr-Defcndants to assess the financial
viability of opening a branch o1licc in that same locale as Ameripro, to jumpstart the opening of
a competing branch office in shortened time and commensurate cost savings, to unfairly compete
for Ameripro's customers, to avoid the expense of generating fom1s and templates and compiling
spreadsheets and contact list intonnation. to compare internal Ameripro pricing infonnation in
setting their own pricing, to wrongfully obtain the value of using Ameripro 's conlidential and
proprietary information without authorization. and to cfTectively duplicate Amcripro 's business.
among other wrongful benefits they gained through their conduct. Amcripro is entitled to
recover from Counter-Defendants, jointly and severally, disgorgemenl of lhc value of those
receipts, avoided costs, and other bencJiLs, including but not limited to the value of the above
bcnclits and of their unlicensed usc of the property which they took from Ameripm. To date,
however, Counter-Defendants have refused to produce that information in response to
Amcripro 's second scl of rcqucsls lor production, as needed for Amcripro 's calculation.
Ameripro reserves the right to supplement with its calculation of disgorgemcnt damage amounts,
once Counter-Defendants comply with discovery by producing documents responsive to
Ameripro 's second set of requests for production.

        Actual damages. Amcripro also seeks. actual damages against all Coulltcr-Dc!cndants.
As to Oak Mortgage, Amcripro seeks acwal damages based on Oak Mortgage's knowing
participation in and aiding and abetting of the Individual Countcr-Dctendants' breaches of
fiduciary duty, misappropriation, conversion, tortious interference with contract. violations of
                                               n
                                                                                                    32
Tex. Civ. Prac. & Rem. Code* 143.002 and Tex. Civ. Prac. & Rem. Code* l34A.004. and its
conspiracy with the other Countcr-Dcl't•ndants in the commission of those violations. Those
actual damages over a l(m~sccablc twelve-month period include Countc'r-Dcfcndams' joint and
several liability for the destruction of the mortgage practice at Amcripro's Lakeway office,
""'hich v.,.,as proximately caused by Oak Mortgage's (and each of Lhc other Countcr-Dcfcndnnts·)
commission nf each orthosc violations, in the amount of $1 ,974.405. 77, mulliplying Arncripro' s
average gross margin by lhc total pmduction volume 1 loan origination volume for 2014 lor Lhe
Lakeway branch ontcc.

         Reasonable rtJl'ttiH;. As set I(H1h in Amcripro 's First Amended Petition, Amcripro is also
entitled to a reasonable royalty for Count(:r-Dcfcndants' unauthorized disclosure and/or usc of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem Code~ 134A.004(a). Pursuant to that
section, Amcripro will also present an alternate damage model measured by imposition of
liability for a reasonable royalty against Oak Mortgage and the other Counter-Defendants lor
their unauthol'[zcd usc or disclosure or    Amcripro ·s track secret information (as de tined in that
statute). Ameripm reserves the right to supplement this portion of its ans\\rer with its calculation,
once Counter-Dcicndants comply with discovery by pmdltcing documents responsive to
Amcripro's second set of requests for produc1ion.

        Pursuant to Tex. R. Civ. P. 58. Amcripro abo adopts herein by reference its response w
lnten·ogatory No. 2 above.




INTERROGATORY NO. 12:                 Separately and distinctly, as to Michael Nasserfar, slate,
separately and distinclly. as to each claim or cause of action asserted as a cross-claim by
Defendant against Michael Nasscrlar. the arnounl, if any, of economic loss, damage, specific lost
sales transactions and lost profits, if any, Dclendant allegedly suftercd as a result of any actions
of Michael Nasscrfar, the identity of all documents or records, separately and distinctly,
supporting or fonrting the bases or such   or Dclcndam's claimed economic loss, specific lost sales
transactions and lost profits, if any J'lx each cause or action or claim asserted by Dctcndant
against Michael Nasserfiu, and the identity     or     all persons with knowledge of such claimed
economic loss specific. lost sales transactions and lost profits, if any, allegedly suffered by
Defendant and the method and means Dclcndanl used to calculate the claimed economic, loss
specific lost sales transactions and lost profits, If any.

       ASSWER:

         This interrogatory inquires about maucrs described in Tex. R. Civ. P. 194.2(d).
Therefi:>rc, in the event that Amcripro amends or supplements this answer at a later date,
Amcripro asserts its right to exclude its prior am.wer from evidence or Ji·om usc in impeachment,
pursuant to Tex. R. C'iv. P. 197.3.

        Amcripro objects to the request to list ''the identity of all documents or records,
separately, and distinctly," on the ground that the n:questcd itemization exceeds 26.000
documents, is overbroad, and providing that identification would subject Ameripro to undue
burden, unnecessary expense. harassmcut, and annoyance, and on the ground that il exceeds the
                                             23

                                                                                                        33
scope of Rule l97's requirements which allow a party to ask for a description "in general" of the
·'factual bases for the party's claims or defenses" and not "to marshal all of its available proof"
that it intends to oiler at trial. l11e Temporary Injunction Order which the Court issued against
Counter-Defendants commanded them to provide Amcripro\ expert with forensic images of all
original source media which contain or did contain "Arncrtpro tiles or information." The thumb
drive of images that Countcr-Dclcndants have supplied in response to the Temporary l~junclion,
alone, contains over 26,000 Ameripro confidential spreadsheets. including lists of Amcripro
borrowers and Amcripro's internal financial records. They are among the thousands of stolen
documents which support each of Amcripro's economic loss claims against Nasscrfar and the
other Counter-Dclcndants.

        Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have refused to produce documents that Amcripro \\ould usc in calcu.lating Amcripro 's
disgorgcmcnt. damages, which is part of Amcripro's economic claims. The Court's Temporary
Injunction found that Amcripro has a "probable right of recovery and likclihot1d of success on
the merits of its clajms." Despite that li.1cl, Counter-Defendants have reCused to produce
documents responsive to Ameripro's Second Set of Requests for Production, which wmtld
enable Amcripro to calculate its disgorgcmcnt damages claims. Ameripro will provide that
disgorgcment calculation when Counter-Defendants produce the source documents responsive to
Ameripro's second set ofrcqucst~ lol' production.

       Subject to and without waiving lhc tlxegoing objections, Ameripro further answers as
fbllows.

                       Ameripro seeks disgorgcment damages against all Counter-Defendants.
          Dis[lOrf:Jement.
As   to   Nassertar, Ameripro seeks disgorgcmcnt based on Nasscrlh( s conversion.
misappropriation. breaches of fiduciary duty, recovery fbr unjust enrichment as statutorily
allowed under Tex. Civ. Prac. & Rem. Code 9 l34A.004(a) (the Texas Unifonn Trade Secrets
Act or "TUTSA "), and conspiracy with the other Counter-Defendants in connection with their
breaches or fiduciary duty (and knowing participation in and aiding and abetting of same) and
acts of conversion.

        Disgorgcment damages (including unjust enrichment) against Nassertar arc based on the
income that he and the other Coumer~Dcfendants have received lor their new Lakeway onicc
since January 16, 2015. the other bcncilts that they derived Jl·om having access to Amcripro 's
confidential information (including being able io gauge the viability of opening a Lakeway oflicc
and in shortening the normal time it \vould take to open a new branch). and for forfeiture of
amounts that Ameripro paid to Nasscrfar during the time period he was brt~aching his fiduciary
duties and was engaged in conversion and violations ofSection l34A.OOI, et seq. (which began
at least as early as October 30, 2014}. As shown as the hearing on Amcripro's Temporary
Injunction application and in depositions in this cause. Countcr-Dclcndanls' commission of the
conduct set out in the First Amended Counterclaim (including their conversion and
misappropriation or Amcripro 's internal linancial data and customer information, and
commission and knowing participation in breaches of fiduciary duly) enabled Nasscrlar and the
other Countcr~Detcndants to assess the linancial viability of opening a branch office in that same
locale as Ameripro, to jumps:tart the opening of a competing branch otlicc in shortened time and
commensurate cost savings, to unfairly compctt~ for Amcripro 's customers, to avoid the expense
                                                24

                                                                                                      34
of generating lbrms and templates and compiling spreadsheets and contact list infbm1ation, to
compare internal Amcripro pricing information in setting their mvn pricing, to wrongfully obtain
the value of using Amcripro 's confidential and proprietary information without authorization,
and to effectively duplicate Amcripro 's business, among other wrongful bcnclits they gained
through their conduct Ameripro is entitled lo recover lium Counter-Defendants, jointly and
severally. disgorgcmenl of the value of those receipts, avoided costs, and llther benefits,
including but not limited to the value of the above benefits and of their unlicensed usc of the
property which they took from Ameripro. As set forth in Amcripro's First Amended Petition.
Ameripro is also entitled to a rea~onablc royalty tbr Counter-Defendants' unauthorized
discl.osurc and;or usc or its trade secrets pursuant to TUTSA. For lbrfciturc damages, that
amount consists of $103,120.51, consisting of the income Ameripro paid to Nasserfar from
November L 2014 through the end or his employment during the period thaL Nasscrlar was
actively breaching his fiduciary dulics, engaged in conversion, in violation or Section 134A.001,
et seq., and in breach of his contracts.

        Actual damages. Ameripro also seeks actual damages against all Coumcr-Detendants.
As to Nasserfar, Amcripro seeks actual damages based on Nasserfar·s breaches of liduciary duty,
misappropriation, conversion, breaches of his contracts, violations of Tex. Civ. Prac. & Rem.
Code~ 143.002 and Tex. Civ. Prac. & Rem. Code~ 134A.004, and his conspiracy with the other
Countcr-Delendants in the commission of those violations. Those actual damages over a
lorcsccable twelve-month period include Counter-Defendants' joint and several liability for the
destruction of the mortgage practice at Amcripro's Lakeway office, which was proximately
caused by Nasscrfar's (and each of the other Counter-Defendants') commission of each of those
violations, in the amount of$1,974,405.77, multiplying Arncripro's avemge gross margin by the
total production volume 1 loan origination vnlume for 2014 for the Lake\\•ay branch onice.

        Pursuant to Tex. R. Civ. P. 58, Amcripro also adopts herein by reference its response to
Interrogatory No. 3 above.


INTERROGATORY NO. 13: Separately and distinctly, as to Michael Task, state, separately
and distinctly, as lo each claim or cause or action asserted as a cross-claim by Defendant against
Michael Task, the amount, if any, of economic loss. damage. specific lost sales transactions and
lost profits, if any, Defendant allegedly suffered as a result of any actions or Michael Task, the
identity of all documents or records, separately and distinctly, supporting or ibm1ing the bases of
such of Defendant's claimed economic loss, specific lost sales transactions and lost profits, if any
for each cause of action or claim asserted by Defendant against Michael Task, and the identity of
all persons with knowledge of such claimed economic loss specific, lost sales transactions and
lost prolits, if any. allegedly suffered by Defendant and the method and means Defendant used to
calculate the claimed economic. loss specific lost sales transactions and lost protits, if any.

       A~SWER:


       This interrogatory inqum.·s about math:rs described in Tex. R. Civ. P. 194.2(d).
Therefore, in the cvcnl that Amcripro amends or supplements this answer at a later date,
Amcripro asserts its right to exclude its prior answer li·om evidence or from usc in impeachment,
pursuant to Tex. R. Civ. P. 197.3.
                                                25

                                                                                                       35
         Ameripro objects to the request to list ''the identity of all documents or records,
separately, and distinctly/' on the ground that the requested itemization exceeds 26.000
documents, is overbroad. and providing that idcntirication would subject Ameripro to undue
burden, unnecessary expense, harassment, and annoyance, and on the ground that it exceeds the
scope of Rule I97's requirements which allow a party to ask for a description "in general'' of the
''factual bases lor the party's claims or defenses" and not "to marshal all of its available proof'
that it intends to oflcr at triaL The Temporary Injunction Order which the Court issued against
Counlcr~Defendants comtnanded them to provide Amcripro's expert with forensic images or all
original source media which contain or did contain "Amcripro tiles or infom1ation." The thumb
drive of images that Counter-Defendants have supplied in response to the Temporary Injunction,
alone, contains over 26,000 Amcripro con fidcntial spreadsheets, including lists of Amcripro
bon·owcrs and Amcripro's internal tinan~iaJ n::cords. They arc among the thousands of stolen
documcob which support each of' Amcripro •s economic loss claims against Task and the other
Counter-Defendants.

        Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have refused to produce documents that Amcripro would usc in calculating Ameripro 's
disgorgcment damages, which is part or Amcripro 's economic claims. The Court's Temporary
Injunction found that Amcripro has a "probable righl of recovery and likcl ihood of success on
the mcri.ts of its claims.'' Despite that fact, Counter-Defendants have refused to produce
documents responsive to Ameripro·s Second Set of Requests tor Production, which would
enable Amcripro to calculate its disgorgcmcnt damages claims. Amcripro will provide that
disgorgcmcnt calculation when Countcr-Dclcndants produce the source documents responsive to
Ameripro 's second set of requests for production.

       Subject to and without waiving the li:.wcgoing objections, Amcripm fu11hcr answers as
follows.

       Disgorgement. Amcripro seeks disgorgement damages against all Countcr-Detl:ndants.
As to Task, Ameripro seeks disgorgcmcnt based nn Task's conversion, misappropriation.
breaches of fiduciary duty, recovery fix unjust enrichment as statutorily allowed under Tex. Civ.
Prac. & Rem. Code ~ 134A.004(a) (the Texas Uniform Trade Secrets Act or "TUTSA"), and
conspiracy with the other Countcr-Dcfcndanb in connection with their breaches of fiduciary duty
(and knowing participation in and aiding and abetting of same) and acts of conversion.

        Disgorgemcnt damages (including unjust enrichment) against rask are based on the
income that he and the other Counter-Defendants have received for their new Lakeway ofticc
since January 16, 2015, the other bcr~~:~lits that they derived from having access to Amcripro 's
conlidential inlonnation (including being able to gauge the viability of opening a Lakeway ofticc
and in shortening the normal time it would take to open a new branch), and for forlciturc of
amounts that Amcripro paid to Task during the time period he was breaching his fiduc1ary duties
and was engaged in conversion and violations of Section 134A.OO I, ct .'>eq. (which began at least
as early as October 30, 2014). As shown as the hearing on Ameripro's Temporary Injunction
application and in depositions in this cause. Countcr~Dcfendants' commission of the conduct set
out in the First Amended Countc:rclaim (induding their conversion and misappropriation of
Amcripro's internal financial data and customer inforrnation. and commission and kno\ving
                                                26

                                                                                                      36
participation in breaches or fiduciary duty) enabled Task and the other Countcr-Dc1cndant:-, to
assess the financial viability or opening a branch office in that same locale as Amcripro, lo
jumpstart the opening of a competing branch office in shortened time and commensurate cost
savings. to unl'airly compete f<x Amcripro's customers, to avoid the expense of generating H:>rms
and templates and compiling spreadsheets and contact lisl intomtation, to compare internal
Ameripro pricing info1111ation in setting their own pricing, to wrongfully obtain the value of
using Ameripro's confidential and proprietary inf'onnation w·ithout authorization. and to
crtectivcly duplicate Amcripro's business, among other wrongful benefit~ they gained through
their conduct. Amcripm is entitled to recover from Counter-Dctcndants, jointly and severally,
disgorgcmcnt of the value of those receipts, avoided costs. and other benefits, including but not
limited to the value of the above bcnctits and of their unlicensed usc of the properLy which they
took from Ametipro. As set forth in Ameripro's First Amended i>etition, Amcripro is also
entitled to a reasonable royalty for Counter-Defendants' unauthorized disclosure and'or usc of its
trade secrets pursuant to TUTSA. For f(xfciturc damages, that amount consists of $34,861.73,
consisting of the income Amcripro paid to Task from November I, 2014 through 1.hc end of his
employment, during the period that Task was actively breaching his fiduciary duties, engaged in
conversion. in violation of Section 134A.OO l. er seq., and in breach of hi~ contracts.

        Actual damages. Ameripro also see-ks actual damages againsl. all CoLJntcr-Dcfcndants.
As to Task, Amcripro seeks actual damages based on Task's breaches of liduciary duty~
misappropriation. conversion, breaches of his contracts. violations of Tex. Civ. Prac. & Rem.
Code* l43JI02 and Tex. Civ. Prac. & Rem. Code~ 134A.004, and his conspiracy with the other
Coantcr-Dcfendants in the commission of those violations. Those actual damages over a
foreseeable twelve-month period i.ncludc Counter-Defendants' joint and several liability tor the
destruction of the mortgage practice at Ameripro 's Lakeway onicc, which was proximately
caused by Task's (and each of the o!hcr Countel'-Dcfcndants') commission of each of those
violations, in the amount of$1.974,405.77, multiplying Amcripro's average gross margin by the
total production volume/ loan origination volume fc)r 20 14 for the Lakeway b.-anch ollicc.

       Pursuant to Tex. R. Civ. P. 58, Ameripro also adopts herein by reference its response to
JntetTOgatory No. 4 above.


INTERROGATORY ~0. 14: Separately and distinctly, as to Ty Gosnay, sLate, separately and
distinctly, as to each claim or cause of action asserted as a cross-claim by Defendant against Ty
Gosnay. the amount, if any, of economic loss, damage, specific lost sales transactions and lost
profits, if any, Defendant allegedly suiTercd as a result or any actions of Ty Gosnay, the identity
of all documents or records, separately and distinctly, supporting or forming the bases of such of
Defendant's claimed economic loss, specific lost sales transactions and lost profits, if any lor
each cause of action or claim asserted by Defendant against Ty Gosnay, and the identity of all
persons with knowledge of such claimed economic loss spt.-cific. lost sales transactions and lost
profits, if any~ allegedly suncrcd by Dc!cndant and the method and means Dclcnd1mt used to
calculate the claimed economic, loss specific lost sales transactions and lost profits, if any.

       A~SWER:



                                                27

                                                                                                      37
       This interrogatory inquires about matters described in Tex. R. Civ. P. l94.2(d).
Therefore, in the event that Amcripro amends or supplements thi~ ansvvcr al a later date,
Amcripro asserts its right to excludl! its prior answer from evidence or from usc in impeachment,
pursuant to T~:~x. R. Civ. P. 197.3.

         Amcripro objects to the request to list "the identity of all documents or records.
separately, and distinctly," on the ground that the requested itemization exceeds 26,000
documents, is overbroad, and providing that identi ticaLion would subject Amcripro to undue
burden, unnecessary expense, harassment, and annoyance, and on the ground that it exceeds the
scope or Rule l97's requirements \\'hich allow a party to ask for a description "in general" ofthe
••factual bases tor the party's claims or defenses" and not "to marshal all of its available proor'
that it intends to offer at ttial. The Temporary Injunction Order which the Court issued against
Counter~Defendants commanded them to provide Ameripro's expert with forensic images of all
original source media which contain or did contain ·'Ameripro files or infonnation." The thumb
drive of images that Counter~ Defendants have supplied in response to the rcrnporary Injunction,
alone, contains over 26,000 Amcripro conlich:ntial spreadsheets, including lists of Ameripro
borrowers and Ameripro's internal nnandal records. They are among the thousands of stolen
documents which support each of Amcripro's economic loss claims against Gosnay and the
other Counter-Defendants.

        Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have refused to produce documents that Am.cripro would use in calculating Amcripro 's
disgorgcment damages, which is part of Amcripro's economic claims. The Court's Temporary
Injunction found that Amcripm has a '"probrtblc right of recovery and likelihood or success on
the merits of its claims." Despite that fact, Counter-Defendants have rcfhscd to produce
docwncnts responsive to Amcripro 's Second Set or Requests for Production, which would
enable Ameripro to calculate its disgorgemcnt damages claims. Amcripro will provide that
disgorgcmcnt calculation \\<'hen Counter-Defendants produce the source documents responsive to
Ameripro 's second set of requests for production.

       Subject to and \Vithout waiving the lorcgoing    o~jcctions,   Amcripro li..uthcr answers as
follows.

       Disgorgement. Ameripro seeks disgorgcmcnt damages against all Countcr-Dclcndants.
As to Gosnay~ Ameripm seeks disgorgcment based on Gosnay's conversion, misappropriation,
breaches of tiduciary duty, recovery for unjust enrichment as statutorily allowed under Tex. Civ.
Prac. & Rem. Code§ 134A.004(a) (the T\.~xas Unifom1 Trade Secrets Act or "TUTSA"), and
conspiracy with the other Counter-Defendants in connection with their breaches of fiduciary duty
(and knowing participation in and aiding and abetting or same) and acts of conversion.

        Disgorgemcnt damages (including unjust enrichment) against Gosnay are based on the
income that he and the other Counter-Defendants have received for their new Lakeway ortkc
since January 16, 2015, the other bcnclits that they derived ri·om having access to Amcripro 's
confidential infonnation (including being able to gauge the viability or opening a Lakeway office
and in shortening the nom1al time it \Vould take lo open a new branch), and lor forfeiture of
amounts that Amcripro paid to Gosnay during the time period he was breaching his fiduciary
duties and was engaged in conversion and violations of Section 134A.OO 1, (!f seq. (which began
                                                28

                                                                                                      38
at least as early a."i October 30, 2014). As shown a:-: the bearing on Amcripro's Temporary
Injunction application and in depositions in this cause, Counter-Defendants' commission of the
conduct set out in the First Amended Counterclaim (including their conversion and
misappropriation or Amcripro's internal financial data and customer infonnation. and
commission and knowing participation in breaches or fiduciary duty) enabled Gosnay and the
other C'ountcr-Dctcndanls Lo assess the Jinancial \'iability of opening a branch office in that same
locale as Amcripro, to jumpstati the opening of a competing branch otlicc in shortened time and
commensurate cost savings, to unfairly compete for Ameripm's customers, to nvoid the expense
of generating forms and templates and compiling spreadsheets and contact list intormation, to
compare intcmal Amcriprt:l pricing information in setting their own pricing, to wrongfully obtain
the value or using Amcripro's contidcntial and proprietary information wilh<mt authorization,
and to ctTcctivcly duplicate Ameripro 's business. among other wrongful benefits they gained
thwugh their conduct. Ameripro is entitled lo recover from Coumcr-Dcfcndants. jointly and
severally, disgorgemcnt or the value of thosc receipts. avoided costs, and other bcnclils,
including but not limited to the value or the above benclits and or their unlicensed use or the
property which they took from Amcripro. As set forth in Amcripro's First Amended Petition,
Amc1ipro is also entitled to a reasonable royalty for Countcr~Dcfcndants' unauthorized
disclosure andlor use of its lradc ~ccrcts pursuant to TUTSA. For lbdciLurc damages, lhat
amount consists or $21,709.73, consisting of the income Amcripro paid to Gosnay !'rom
November J, 2014 through the end of his employment, during the period that Gosnay was
actively breaching his fiduciary duties. engaged in conversion, in violation of Section l34A.00 I,
el seq., and in breach or his contracts.

        Actual damages, Amcripro also seeks aetua! damages against all Counter-Defendants.
As to Go~nay. Amcripro seeks actual damage;;; based on Gosnay's breaches of fiduciary duty,
misappropriation, conversion, breaches or his contracts, violations or Tex. Civ. Prac. & Rem.
Code~ 143.002 and Tex. Civ. Prac. & Rem. Code* J34A.004, and his conspiracy with the other
Counter-Dcfcnd:mts in the commission of those violat.ions. Those actual damages over a
foreseeable twelve-month period include Counter-Defendants' joint and several liability for the
destruction or the mortgage practice at Amcripro 's Lakeway otlicc. which \Vas proximatdy
caused by Gosnay's (and each of the other Counlcr-Dcl::ndants') commission or each of those
violations, in the amount of$1,974,405.77. multiplying Amcripro's average gross margin by the
total production volume' loan origination volume for 2014 tor the Lake\vay branch office.

        Pursuant to Tex. R. Civ. P. 58, Amcripro also adopts herein by reference its response to
Interrogatory No. 5 above.


J~TERROGATORY           NO. 15: Separately and distinctly, state all !acts, including dates and
actions which Defendant contends constitutes a breach of the Nasserl~tr Employment Agreement,
and the identity or all documents Comting the bases or Defendant's contention of a breach and the
identity of person or persons \Vho have knowledge of thc alleged breach.

       A~SWER:


       This interrogat01y inquin:s about matters described in Te:><. R. Civ. P. 194.2(c).
Thcrcf(m;, in the event that Amcripro amends or supplements this answer at a later date,
                                                29

                                                                                                       39
Amcripro asserts its right to exclude its prior answer from evidence or from use in impeachment.
pursuant to Tex. R. Civ. P. 197.3.

         Ameripro objects to the request to identify "all racts" and "dates'' which it contends
constitute a breach of NasscrJar's Employment Agreement, on the grounds of overbreadth, and
that that responding to the entirety or the requested information would subject Amcripro to
undue burden, unnecessary expense, harassment, and annoyance. and on the ground that it
exceeds the scope of Rule !97's requirements which allow a party lo ask for a description "in
general'' of the "tactual bases fbr the party's claims or defenses" and not "to marshal all or its
available proof'' that it intends to otTer at triaL For example, Nasserfar's Employment
Agreement (and other contracts) provided tl13t all of the documents and infom1ation that was
provided to him during lhe course of his employment at Amcripro, or that he generated during
his employment at Amcripro, is Ameripro's sole property, and fmiher provided that he could not
retain, usc, or disclose any of that information, let alone to a competitor. Nasscrlfu's thumb
drives, by themselves, show that he took thousands or Amcripro confidential spreadsheets and
other documents ·with him after he resigned fi·om the company, in breach of his Employment
Agreement and other contracts. Similarly, all Ameripro documents contained on the thumb drive
received on June J, 2015 from Counter-Defendants (over 26,000 document'>) arc documents
\\'hich form the basis tbr Amcripro·~ claim against Nasscrfar for breach. Similarly, Nasscr1:1r's
ongoing communications from October 30, 2014 through January 16, 2015 ('>vhilc Nasser tar was
still employed with Ameripro and serving a!'. its fiduciary) with Ameripro's competitor, Oak
Mortgage, about setting up a competing branch violated his contracts. Itemizing all such dates
and thousands of documents would subject Amcripro to undue burden, unnecessary expense.
harassment, and annoyance.

       Subject to and without waiving the foregoing     l)~jcctions,   Ameripro lhrthcr answers as
Jbllows.

       Pursuant to pursuant to Tex. R. Civ. P. 58, 193.5, and t97.2(c), Amcripro adopts and
incorporates by reference into this answer:

       t)     the transcripts of the direct examination testimony of Chad Ovcrhauscr and Roy
              Rector, and the cross examinations of Nasserlar and Task. given at the May 26-
              27, 2015 hearing on Amcripro's application for Temporary Injunction (Amcripro
              understands that Counter-Defendants have ordered transcripts of that testimony in
              connection with Counter-Defendants' appeal of the Temporary Injunction entered
              against them), describing the Amcripro property taken in violation of his contracts
              (including general ledgers, Joan prolitability reports, consumer loan applications
              and files, pro rormas, and the categories of infom1ation listed in the Temporary
              Injunction Order which the Court lbund that Counter-Defendants took from
              Ameripro), his failure to provide a list or business opportunities and loans in
              process and to cooperate in closings. and his work lbr a competitor while still
              employed and serving a,_ a fiduciary for Ameripro;

       2)     Applicant's [Amcripro's] Exhibit Nos. AX 1-24, 27-3R~ 42-50, 53-70, 75, 78-R5,
              which were admitted into evidence at the May 26-27, 2015 injunction hearing.
              Those exhibits include the contract!':~ that Nasserlar and the other Individual
                                            30

                                                                                                     40
               Countcr·Dcfcndants signed with Amc1ipro, examples of the internal confidential
               rccordi> of Ameripro which Countcr~Dcfcndants mi.sappropriated, and c-mails and
               text messages among C'ountcr-Delcndants and with Amcripro customers
               (including builder customers) in which Amcripro's confidential information
               taken, disclosed, and used, and during which the Individual Counter-Defendants
               began assisting Amcripro 's competitor Oak Mortgage in competing with
               Amcripro even while the Individual Counter-Defendants were still under
               liduciary obligations with Amcripro (that same conduct also violated the
               Individual Counter-Defendants' contracts);

       1)      The forensic: images that Counter-Defendants provided to Ameripro (received on
               or about June 3, 2015), pursuant to the June 16, 2015 Temporary Injunction
               Order, of thousands of Amcripro confidential spreadsheets, loan applications and
               credit reports of consumers who submitted applications to Amcripro, and other
               records that Counter-Defendants took, disclosed, and used in violation or statute,
               common law, and the Individual Counter-Defendants' contracts.

As stated by the Court in the Temporary Injunction Order, "based upon the evidence" at lhat
May 26-27 hearing (including the evidence listed in items I and 2 immediately above), the Court
found that Amcripro ''met its burden to establish that it has a probable right of recovery and
likelihood of success on the merits on its claims for misappropriation of trade secrets and
confidential and proprietary infom1ation, conversion, breach of fiduciary duty, tortious
interference with contract, and breach of contract" and that Counter-Defendants '"have attempted
to pcm1anently destroy Amcripro documents and files, and have taken li·mn Ameripro's
computer network and premises contidential and proprietary information belonging to Amcripro
(including but not limited to Amcripro's pricing infmmation, general Ledgers, prolil and loss
statements, loan profitability reports, statements of income. customer and rclciTal lists and
contract information, builder preferences or builder contacts or cell phone numbers, pro formas,
concession fees, borrower inlormation, transaction details, templates, loan set-up sheets, c-mails
exchanged using Amcripro servers, correspondence . and other information that had been stored
on Amcripro 's computer network or in Ame1ipro olliccs) (hcrcinallcr ·Amcripro lnlbrmation ')."
That propc11y contractually belonged to Amcripro, and Counter-Defendants' taking, disclosure.
and use of that information was without authorization.

       Moreover, assuming that Counter-Defendants complied with the Temporary Injunction
Order in good faith. Lhe forensic images that Countt.:r-Dcfendants provided lo Ameripro on or
about June 3, 2015, were supposed to he media which "contains or did contain Ameripro Iiies or
infonnation" -· none of which Nasscrfar should have had in his possession alter January 16,
2015. had he been in compliance with his Employment Agrccrncnt. Therefore, all such
Ameripro files and inlonuation that Nasscrfi:rr and his co-conspirators provided on June 3, 2015,
are among lhe documents which support Amcripro's claims for breach of Nasscrfar's
Employment Agreement.

       Persons with knowledge or Nasscrfar's breach include Chad Overhauser, President,
Ameripro Funding, Inc., 8300 N. Mopac Expressway, Suite 120, Austin, Texas 78759 C1 0 Susan
P. Burton, Graves Dougherty Hearon & Moody, 401 Congress Ave., Stc. 2200, Austin. Texas
78701, (512) 480-5738; James Anagnos, Director. lnf'onnation Technology. Tcnura Holdings,
                                           31

                                                                                                     41
lnc., !BOON. Mopac Expressway, Suite 220, Austin, Texas 78759, c/o Susan P. Burton. Graves
Dougherty Hearon & Moody, 401 Congress Ave .. Ste. 2200, Austin, Texas 78701, (512) 480-
5738, and (as shown by admissions against interest at the Temporary Injunction hearing and in
depositions) Michael H. Nasscrfar, Vice President, Oak Mortgage Group, Inc., c'o Wm. Charll.!s
Bundren, Wrn. Charles Btmdrcn & Associatt.!s Law Group, PLLC, 2591 Dallas Parkway, Suite
300, Frisco, Texas 75034, (972) 624-5338: Michael E. Task, Austin Area Sales Manager. Oak
Mortgage Group, Jnc., clo Wm. Charles Bundren. Wm. Charles Bundren & Associates Law
Group, PLLC, 2:Wl Dallas Parkway, Suite 300, Frisco, Texas 75034, (972) 624-5338: Tycord R.
Gosnay. Residential Mortgage Loan Originator, Oak Mortgage Group, Inc., c.oo \Vm. Charles
Bundren, \Vm. Charles Bundren & Assncialcs Law Group. PLLC. 2591 Dallas Parkway, Suite
300, Frisco. Texas 75034, (972) 624-5338: James Holden Thomas, Chief ExccuLivc OCfic:cr, Oak
Mortgage Group, Inc., c/o Wm. Charlc!> Bundren. \Vm. Charles Bundren & Associates L:nv
Group, PLLC, 2591 Dallas Parkway, Suite 300, Frisco, Tl"xas 75034, (972) 624-5338.



I~TERROGATORY ~0. 16: Separately and distinctly, state all facts. including dates and
actions which Defendant contends con:-;tilutes a breach of the Task Empk)ymcnt Agreement, and
the identity or aU documents fom1ing the bases of Defendant's contention or a breach and the
identity of person or persons who have knowledge of lhc alleged breach.

       A:'\ISWER:

       This interrogatory inquires about matters described in Tex. R. Civ. P. l94.2(c).
Therefore, in the event that Amcripro amends ur supplements this answer at a later date,
Amcrit'ro asserts its righlto exclude its prior answer from evidence or from use in impeachment.
pursuant to Tex. R. Civ. P. 197.3.

        Ameripro objects to the request to identify .. aU facts" and "dates" which it contends
constitute a breach of Task's Employment Agreement, on the grounds of overbreadth, and that
that responding to the entirety of the requested inlhmmtion would subject Amcripro to undue
burden, unnecessary expense, harassment, and annoyance, and on the ground that it exceeds the
scope of Rule !97's requirements which allow a patty to asl<. for a description "in general" or the
"factual bases f{lr the party's claims or defenses'' and not "to marshal all or its available proof'
that it intends to offer at trial. For example, Task's Employment Agreement (and other
contracts) provided that all of the documeng and information that was provided to him during
the course of his employment al Ameripro, or that he generated during his employment at
Ameripro, is Amcripro 's sole prope11y, and further provtdcd that he could not retain, usc. or
disclose any of that infonnation, let alone to a competitor. The box of confidential Amcripro
records Task took to his home, by themselves, show that he look Arm:ripro consumer
inrormation and confidential financial documents wilh him after he resigned rrom the company,
in breach of his Employment Agreement and other contracts. Similarly, all Amcripro documents
contained on the thumb drive received on June J, 2015 from Counter-Defendants (over 26.000
documents) are documents which form the basis t<:w Amcripro 's claim against Task for breach.
Similarly, Task's ongoing communications with Amcripro 's competitor, Oak Mortgage (while
Task was still employed with Amcripro and serving as its fiduciary), about selling up a

                                                31

                                                                                                       42
competing branch violated his contracts. Itemizing all such dates and thousands or documents
would subject Amcripro to undue burden, unnecessary expense, harassn1enl, and annoyance.

       Subject   to   and without waiving   Lht~   foregoing objections, Amcripro further answers as
follows.

       Pursuant to pursuant to Tex. R. Civ. P. 5R, 193.5, and l97.2(c), Amcripro adopts and
incorporates by relcrencc inLo this answer:

       1)     the transcripts ol' the direct examination testimony or Chad Ovcrhauscr and Roy
              Rector, and the cross examinations of Nasscrfar and Task, given at the May 26-
              27, 2015 hearing on Amcripro 's application for Temporary Injunction (Ameripro
              understands that Counter-Defendants have ordered transctipts of that testimony in
              connection with Counter-Defendants' appeal orthe Temporary lnjttnction entered
              against them), describing the Amcripro property taken in violation of his contracts
              (including general ledgers, loan profitability reports, consumer loan applications
              and Jiles, pro formas, and the categories of infom1ation listed in the Temporary
              Injunction Order which the Court tound that Counter-Defendants took from
              Ameripro), his failure to provide a lisl or business opportunities and loans in
              process and to cooperate in closings, and his work for a competitor while still
              employed and serving as a iiduciary fi.-,r A meripro~

       2)     Applicant's [Amcripro's] Exhibit Nos. AX 1-24, 27-38: 42-50, 53-70, 75, 78-85,
              which were admitted into evidence at the May 26-27, 2015 injunction hearing.
              Those exhibits indudc the contracts that Task and the other Individual Counter-
              Defendants signed with Amcripro, examples of the internal conlidentiai records
              of Amcripro which Counlcr-Dclendants misappropriated, and c-mails and text
              messages among Counter-Defendants and with Amcripro customers (including
              builder customers) in whkh Amcripro 's confidential infonnation taken, disclosed,
              and used, and during which the Individual Countcr-DcJcndants began assisting
              Amcripro's competitor Oak Mortgage in competing with Amcripro even v:hilc the
              Individual Coumcr-Detcndants were still under fiduciary obligations with
              Amcripro (that same conduct also violated th~ Individual Countcr-Delcndams'
              contracts);

       3}     The forensic images thai Ccnm1er-Dcfcndants provided to Ameripro (received on
              or about June 3, 2015), pursuant to the June 16. 2015 Temporary IJ\junction
              Order, of tlmusands or Amcripro ~.:onlidcntial spreadsheets~ loan applications and
              credit reports of consumers who submiltcd applications to Ameripro, and other
              records that Countcr-Dcn.mdants took, disclosed, and used in violation of statute,
              common law, and the Individual Counter-Defendants' contracts.

As stated by the Court in the Temporary Injunction Order, "based upon the evidence" at that
May 26-27 hearing (including the evidence listed in items 1 and 2 immediately above), the Court
found that Amcripro ··met its burden to cslablish that it has a probablr.: right of recovery and
likelihood of success on the merits on its claims for misappropriation of trade secrets and
con.lidential and proprietary information, conversion, breach or fiduciary duty, tortious
                                              33

                                                                                                       43
interference with contract, and breach of contract" and that Counter-Defendants "have attempted
to pcm1anenlly destroy Amcripro documents and tiles, and have taken H·om Amcripro 's
computer network and prcn1iscs conlidcnt1al and proprietary information belonging to Amcripro
(including but nol limited to Amcripro's pricing information, general ledgers, profit and loss
statements, loan profitability reports, statcnwnts of income, customer and referral lists and
contract information~ builder preferences or builder contacts or cell phone numbers. pro formas.
concession fees, borrower inlormation, transaction details, templates. loan set-up sheets, c-mails
exchanged using Amcripro servers, correspondence, and other information that had been stored
on Amcripro's computer network or in Amcripro ollkcs) (hereinafter 'Amcripro Information')."
That property contractually belonged to Ameripro, and Counter-Defendants' taking, disclo~urc,
and usc of that inl(mnation was without authorization.

       Moreover, assuming lhal Counter-Defendants complied with the Temporary Injunction
Order in good faith~ the forensic images that Counter-Defendants provided to Amcripro on or
about June 3, 2015, were supposed to be media which "contains or did contain Amcripro Jiles or
information" ·-- none of which Task should have had in his possession alier January 16, 2015.
had he been in compliance vvith his Employment Agreement. Thercl'l1rc, all such Amcripro Iiles
and infotmaticm that Task and his co-conspirators provided on June 3, 2015, arc among the
documents which suppot1 Ameripro's claims lor breach of Task's Employment Agreement.

        Persons with knowledge of Task's breach include Chad Ovcrhauscr, Prc:;ident, Ameripro
Funding, fnc .• 8300 N. Mopac Expressway, Suite !20, Austin, Texas 78759 c.·o Susan P. Bw1cm,
Graves Dougherty Hearon & Moody, 401 Congress Av<..~ .• Ste. 2200, Austin, Texas 7g701, (512)
480~5738; James Anagnos, Director, lnCormation Technology, Tenura Holdings, Inc., 8300 N.
Mopac Express\vay, Suite 220, Austin, Texas 78759, c;o Susan P. Burton, Graves Dougherty
Hearon & Moody, 401 Congress Ave., Ste. 2200, Austin. Texas 78701, (512) 480·5738, and (as
shO\\·n by admissions against interest at the Temporary rnjunction hearing and in depositions)
Michael H. Nasscrfar, Vice President, Oak Mortgage Group, Inc., cJo \A/m. Charles Bundren,
Wm. Charles Bundren & Associates Law Group, PLLC, 2591 Dallas Parkway, Suite 300. Frisco,
Texas 75034, (972) 624-5338; Michael E. rask, Austin Area Sales Manager, Oak Mortgage
Group, Inc., c..o Wm. Charles Bundren, Wm. Charles Bundren & Associates Law Gwup, PLLC
2591 Dallas Parkway, Suite 300, Frisco, Texas 75034. (972) 624-5338: Tycord R. Gosnay.
Residential Mortgage Loan Originator, Oak Mm1gagc Group, Inc., c/o Wm. Charles Bundren,
Wm. Charles Bundren & Associates Law Group, PLLC. 2591 Dallas Park\vay, Suite 300, Frisco,
Texas 75034. (972) 624-5338; James Holden Thomas, Chief Executive Ofticcr, Oak Mortgage
Grc•up, [nc., c!o Wm. Charles Bundren, Wm. Charles Bundren & Associates Law Group, PLLC,
2591 Dallas Parkway, Suite 300, Frisco. Tcxas 75034, (972) 624-5338.


I:'IIITERROGATORY NO. 17: Separately and distinctly, state all facts, including dates and
actions which Defendant contends constitutes a breach or the Gosnay Employment Agreement,
and the identity or all documents fom1ing the bases or Defendant's contention of a breach and the
identity of person or persons who have knowledge of the alleged breach.

       A.:'IIISWER:


                                               34

                                                                                                     44
       This interrogatory inquires about matters described in Tex. R. Civ. P. 194.2(c ).
Therefore, in the event that Amclipro amends or supplements this answer at a later date,
Amcripro asserts Its right to exclude its prior answer from evidence or fium usc in impeachment.
pursuant to Tex. R. Civ. P. 197.3.

         Amcripro objects to the request to idc..'ntif); "all facts" and "dates" which it contends
constitute a breach of Gosnay's Employment Agreement, on the grounds of overbreadth. and that
that responding to the entirety of the rcquc~ted infcmnation would subject Amcripro to undue
burden, unnecessary expense, harassment. and annoyance, and on the ground that it exceeds the
scope or Rule !97's requirements which allov.c :I party to ask for a description "i.n general" ofthc
*'factual bases for the party's claims or defenses" and not ''to marshal all of its available proor·
that it intends to otTer at triaL For example, Go~nay'~ Employment Agreement (and other
contracts} provided that all or the documents and information that \Vas provided to him during
the course of his employment at Amcripro, or that he generated during his employment at
Amcripro, is Amcripro's sole property, and further provided that he could not retain, usc, or
disclose any of that information, let alone to a competitor. Gosnay and Lhc other Counter-
Defendants even forgot to change Amcripro' s address on forms they downloaded (rom
Amcripro's computers, before using them at 1J1cir new competing business. Similarly, all
Amcripro documents contained on the thumb drive received on June 3, 2015 from Counter-
Defendants (over 26,000 documents) arc documents which !bnn the basis for Ameripro's claim
against Gosnay fnr breach. Similarly, Gosnay's ongoing communications with Amcripm's
competitor, Oak Mortgage (while Gosnay was still employed with Amcripro and serving as its
fiduciary), about setting up a competing branch violated hi$ contracts. Itemizing all such dates
and thousands of documents would subject Amcripro to undue burden. unnecessary expense,
harassment, and annoyance.

       Subject lo and without waiving the foregoing objections, Amcripro further answers as
follows.

       Pursuant to pursuant to Tex. R. Civ. P. 58, 193.5, and 197.2(c), Amcripro adopts and
incorporales by reference into this answer:

       I)      the tmnscripts of the direct examination testimony of Chad Ovcrhnuscr and Roy
               Rector, and the cross examinations of Nasscrfar and Task, given at the May 26-
               27, 2015 hearing on Am~ripro\; application for Temporary Injunction (Amcripro
               understands that Counter-Defendants have ordered transcripts or that testimony in
               connection with Counter-Dcfend~mls' appeal or the Temporary Injunction cnlcrcd
               against them), describing the Amcripro property taken in violation of his contracts
               (including general ledgers, loan proiitability reports, consumer loan applications
               and files, pro formas, and the categories of inforrnation listed in the Temporary
               Injunction Order which the Com't lbund that Counter-Defendants took thm1
               Amcripro), his failure to provide a list of business opp011unities and loans in
               process and to cooperate in closings, and his work lbr a competitor while still
               employed and serving as a fiduci:Iry ll1r Amcripro;

       2)      Applicant's [Amcripro's] Exhibit Nos. AX. 1-24. 27~38: 42-50,53-70, 75, 78-85,
               which were admitted into evidence at lhc May 26-27, 2015 injunction hearing.
                                             35

                                                                                                       45
               Those exhibits include the contract!ii that Gosnay and the other Individual
               Counter-Defendants signed with Amcripro, examples or the intcmal confidential
               records of Amcripro which Counter~Dclendants misappropriated. and c-mails and
               text messages among Countcr-Dcf<mdants and with Amcripro customers
               (including builder customers) in which Amcripro's confidcnlial infomu1tion
               taken, disclosed, and used, and during which the Individual Counter-Defendants
               began assisting Amcripro's competitor Oak Mortgage in competing with
               Amcripro even while the Individual Counter-Defendants were still under
               liduciary obligations with Amcripro (that same conduct also violated the
               Individual Counter-Dctcndants · contract:-.);

       3)      The forensic images that Counter-Defendants provided to Amcripro (received on
               or about June 3, 2015), pursuant to the June 16, 2015 Temporary Injunction
               Order, of thousands of Amcripro confidential spreadsheets, loan applications and
               credit reports of consumers \Vho subrmttcd applications to Amcripro. and other
               records that Counter-Defendants took, disclosed, and used in violation of statute.
               common law, and t.he Individual Counter-Defendants' contracts.

As stated by the Court in the Temporary Injunction Order, "based upon the evidence" at that
May 26-27 hearing (including the evidence listed in items I and 2 immediately above), the Court
found that Ameripro "met its bw·dcn to establish that it has a probable right of recovery and
likelihood of success on the merits on its claims for misappropriation of trndc secrets and
confidential and propricmry information, conversion, breach of fiduciary duty, tortious
intcrtcrencc with contract, and breach of contract" and that Counter-Defendants ''have attempted
to pcm1anently destroy Ameri pro documents and files, and have taken !i·om Amcripro 's
computer net\vork and premises confidential and proprietary inlonnalion belonging to Ameripro
(including but not limited to Ameripro's pricing information, general ledgers, pro!il and loss
statements, loan profitability reports, statements of income, customer and referral lists and
contract information, builder preferences or builder contacts or cell phone numbers, pro formas,
concession fees, borrower infotmation, transaction details, templates, loan set-up sheets. c-mails
exchanged using Amcripro servers, correspondence, and other information that had been stored
on Ameripro's computer network or in Amcripm oniccs) (hereinafter •Ameripro lnlonnation')."
That property contractually belonged to Amcripm, and Countcr-Dclcndnnts' taking, disclosure,
and usc of that inlbnnation was without authorization.

       Moreover, assut.ning that Counter-Dcfcndams complied ·with the Temporary Injunction
Order in good faith, the forensic images that Countcr-Dciendants provided to Amcripro on or
about June 3, 2015, were supposed to be media which ''contains or did contain Amcripro Iiles or
infomtation"- none of v.·hich Gosnay should have had in his possession after January 16, 20 I 5.
had he been in compliance with his Employment Agreement Thcrctbrc, all such Amcri.pm tiles
and information that Gosnay and his co-conspirators provided on Juru.' 3, 2015, arc among the
documents which support Amcripro's claims for breach ofGosnay's Employment Agreement.

       Persons with knowledge of Gosnay's breach indudc Chad Ovcrhauscr, President,
Amcripro Funding, Inc., 8300 N. Mopac Expressway, Suite 120, Austin, Texas 787 59 cio Susan
P. Burton, Graves Dougherty Hearon & Moody, 401 Congress Ave., Ste. 2200, Austin, Texas
78701, (512) 480-5738; James Anagnos, Director. lnfonnation Tcdmology, Tcnura :Holdings,
                                               36

                                                                                                     46
lnc., 8300 N. Mopac Expressway, Suite 220, Austin. Texas 78759, c/o Susan P. Burton, Graves
Dougherty Hearon & Moody, 401 Congress Ave .. Stc. 2200, Austin, Texas 78 70 I, (512) 480-
5738, and (as shown by admissions against interest at the Temporary Injunction hearing and in
depositions) Michael H. Nasscrf'ar, Vice President, Oak Mortgage Group, Inc., cio Wm. Charles
Bundren, Wm. Charles Bundren & Associates Law Group, PLLC, 2591 Dallas Parkway, Suite
300, Frisco, Texas 75034, (972) 624-5338: Michael E. Task, Austin Area Sales Manager, Oak
Mortgage Group, Jnc., clo Wm. Charles Bundren. Wm. Charles Bundren & Associates Law
Group, PLLC, 2591 Dallas Parkway, Suite 300. Frisco, Texas 75034, (972) 624-5338: Tycord R.
Gosnay, Residential Mortgage Loan Originator, Oak Mortgage Group, Inc., c;o Wm. Charles
Bundren, Wm. Charles Bundren & Associates Law Group. PLLC, 2591 Dallas Park way, Suite
300, Frisco, Texas 75034, (972) 624-5338: James Holden Thomas, Chief Executive OCfkcr, Oak
Mortgage Group, Inc., c/o Wm. Charles Bundren, \Vm. Charles Bundren & Associates Law
Group, PLLC, 2591 Dallas Parkway, Suite 300, Frisco, Texas 75034, (972) 624-5338.


INTERROGATORY NO. 18: As to each separate and distinct Plaintiff: describe and state all
facts, including dates, the identification of do,;umcnts and persons with knowledge of such facts
and spccilic actions in "'·hich Defendant contends Plaintill'"i used any property of Defendant for
any purpose, and damages. and mclhods and means of calculating the damages Defendant
contends were caused by such usc, and the amount of profits, if any, Defendant contends
Plaintil'fs obtained or gained by usc of such property.

       A:"'SWER:

       This interrogatory inquires about matters described in Tex. R. Civ. P. 194.2(c) & (d).
Thcrelorc, in the event that Ameripro amends or supplements this answer at a later date,
Amcripro asserts its right to exclude its prior answer n·om evidence or from usc in impeachment,
pursuant to Tex. R. Civ. P. 197.3.

         Ameripro objects to the request to identify "all facts," "dales," and "documents'' relating
to Amcripro's claim ihat Counter~Dclendants have used Amcripro property, on the grounds of
overbreadth, and that that responding to the entirely of the requested information would subject
Ameripro to undue burden, unnecessary expense, haras:-.mcnt, and annoyance. and on the ground
that it exceeds the scope or Rule I97's requirements which allow a pa11y to ask for a description
''in general" ofthc "factual bases for the party's claims or dcf~nscs" and not "to marshal all of its
available proof'' that it intends to oricr at trial. As competitors of Amcripm, Countcr-Dclcndants
wrongfully had in their possession over 26,000 confidential documents that they secretly took
from Amcripro, including general ledgers, pro formas, loan profitability reports, financial
spreadsheets, and other internal tinancial and other proprietary information (including the several
categories that the Court listed in ilK· Temporary Injunction Order). As stated by lhe Court in the
Temporary lnjunction Order, "based upon the cvidt)ncc" at that May 26-27 hearing (including
the evidence listed in items I and 2 below). the Cow1 found that Ameripro "met its burden to
establish that it has a probable right of recovery and likelihood of success on the merits on its
claims" and that Counter-Defendants "have altempt~.!d lo permanently destroy Amcripro
documents and files, and have taken from Amcripro 's computer network and premises
confidential and p1·oprictary in1i.mnation belonging w Amcripro (including but not limited to
Amcripro 's pricing ini(m11ation. general ledgers, pro lit and loss statements, loan profitability
                                                 37

                                                                                                        47
reports, stalcments of income, customer and referral lists and contract intonnation, builder
preferences or buildct' contacts or cell phone numbers, pro fmn1as. concession tees, botTowcr
infonnation, transaction detail~. templates, loan set-up sheets, e-mails exchanged using Amcripro
servers, correspondence, and other in formation that had been stored on Amcripro' ~ computer
network or in Amcripro offices) (hcrcinancr · Amcripro Information')."

       Subject to and without waiving the foregoing objections, Amcripn) fw1hcr answers as
follows.

       Pursuant to pursuanl lo Tex. R. Civ. P. 58, 193.5, and 197.2{c), Amcripro adopts and
incorporatcsby reference into this answer:

       l)     the transcripts ot' the direct examination testimony or Chad Ovcrhauser and Roy
              Rector, and the cross examinations or Nasscrlar and Task, given at the May 26-
              27, 2015 hearing on Amcripro's application for Temporary Injunction (AmeriJ11'0
              understands that Counter-Defendants have ordered transcripts of lhat testimony in
              connection with Counter-Defendants· appeal of the Temporary Injunction entered
              against them);

       2)     Applicant's [Ameripro's] Exhibit Nos. AX 1-24, 27-38; 42-50, 53-70, 75, 78-85
              which were admitted into evidence at the May 26-27, 2015 injunction hearing.
              Those exhibits include c::xarnplcs of Amcripro general ledgers and other internal
              financial information which Counter-Defendants took for their competing ollicc.
              Countcr-Dclcndants' communications with each other ahont obtaining and using
              Amcripro 's internal infi:)rmation, examples of ho\\· they planned to usc
              Ameripro's inCormation (e.g., price comparison. determining if there \VCrc
              extraordinary expenses in setting up tl competing office in that location), and c-
              mails and text messages among Counter-Defendants and with Amcripro
              customers (indudjng builder customers) in which Amcripro's confidential
              intom1ation taken, disclosed, and used, and'or during which the Individual
              Counter-Defendants began assisting Amcripro's competitor Oak Mortgage in
              competing with Amcripro even while the Individual Counter-Defendants were
              still under tiduciaty obligations with Amcripro;

       3)     The forensic images that Counter-Defendant:;, provided to Amcripro (received on
              or about June 3. 20 15), pursuant to the June 16, 2015 Temporary Injunction
              Order. of thousands of Amcripro conlidcntial spreadsheets, Joan applications and
              credit reports of consumers who submitted applications to Amcripro, and other
              records that Counter-Defendants took, disclosed, and used in violation of statute.
              common law, and the Individual Countcr-Dclendants' contracts.

       Assuming that Counlcr-Dc!endants complied with the Temporary [njunction Order in
good laith, the Jorensic images that Counter-Dl!lcndants provtdcd to Ameripro on or about June
3, 2{)15, were supposed to be media \\hich ··contains or did contain Amcripro Jiles or
information" . . none of \.vhich Countcr-Drfendnnts had any right lo possess alter January 16,
2015 (and which Oak Mortgage never had a right to po:;.sess even before that date).

                                               38

                                                                                                    48
        AU of the Amcripro records on that June 3, 2015 thumb drive arc inf(mnation that the
Court found were unlaw fi.Llly "taken from Amcripm 's computer network and premises" (as
stated in the Temporary Injunction Order), and fall within the legal presumption that Ameripro 's
competitors (Countcr~Dcfendants) have been using the infonnation they stole from it. All
Amcripro documents. contained on the thumb dri vc received on June 3, 20 IS !'rom Counter-
Defendants (over 26,000 documents) arc documents which form the basis lor Amcripro 's claim
against Counter-Defendants for usc of its contidcntial information (as well as for Ameripro's
claims that such inJommtion was convc11cd, misappropriated, and disclosed), including the
identity or each Counter-Defendant who was the custodian of the electronic devices copied on
the thumb drive. Counter-Defendants' possession of the documents on the thumb drive, in itself.
gives rise to the legal presumption lhnt th..:y used it Lo A.mcripro's detrimcnt. 2 Itemizing all such
dates (which is available to Counter-Defendants in the metadata for those 26.()00+ documents)
and itemizing the 26,000+ documents that Counter-Defendants possessed and used, would
likewise subject Ameripro to undue burden, unnecessary expense, harassment, and annoyance.

        Pursuant tn Tex. R. C'i". P. 58, Amcripro also adopts herein by reference its response to
Interrogatory Nos. 2-5, and 11-14 above, as they relate to damages, which are also responsive to
this interrogatory. Damages relating to Counler-Dclcndants' misappropriation of Amcripro's
confidential records while they were setting up a competing office in the same locale income, in
particular, include disgorgcmcnt damages. Ameripro will supplement its response to this
interrogatory once Counter-Defendants produce records in response to Amcripm's second set of
requests tor production.

        Persons with knowledge of Countcr-Dclcndants' conduct include Chad Ovcrhauscr,
President, Amcripro Funding, Inc., 8300 N. Mopac Expressway, Suite 1:20, Austin, Texas 78759
C'O Susan P. Burton, Graves Dougherty Hearon & Moody. 401 Congress Ave., Ste. 2200, Austin.
Texas 7870 I, (512) 480-5738; James Anagnos, Director, Information Technology, Tenura
Holdings, Inc., 8300 N. Mopac Expressway, Suite 220, Austin, Texas 78759, c.·o Susan P.
Burton, Graves Dougherty Hearon & Moody, 401 Congress Ave .. Stc. 2200, Austin, Texas
78701, (512) 480-5738, and {as shown by admissions against interest at the Temporary
Injunction hearing and in depositions) Michael H. Nasscrlar, Vice President, Oak Mortgage
Group, lnc., C/O Wm. Charles Bundren, Wm. Charles Bundren & Associates Law Group, PLLC.
2591 Dallas Parkway, Suite 300, Frisco, Texas 75034, (972) 624-5338: Michael E. Task, Austin
Area Sales Manager, Oak Mortgage Group, Inc., c'o Wm. Charles Bundren, Wm. Charks
Bundren & Associates Law Group, PLLC, 2591 Dallas Parkway, Su.ite 300, Frisco, Texas
75034, (972) 624-5338: Tycord R. Gosnay, Residential Mortgage Loan Originator, Oak
Mortgage Group, Inc,, C/o Wm. Charles Bundren, Wm. Charles Bundren & Associates Law
Group, PLLC, 2591 Dallas Parkway, Suite 300. Frisco, Texas 75034, (972) 624~5338; James
Holden Thomas. Chief Executive Oniccr, Oak Mortgage Group, Inc., c/o Wm. Charles. Bundren.
\Vm. Charles Bundren & Associates Law Group, PLLC 2591 Dallas Park\vay. Suite 300, Frisco,
Texas 75034, (972) 624-5338.



  2
   Seu. e.g.. Hil/1•. McLane Co., inc., 20 II WL 56061 *5 (lex, App. - Austin Jan, 5, 20 I L no pet.):
Conley 1'. DSC Communications Cm1J., 1999 WL lN955 *5 (Tex. App. - Dallas reb. 24. 199Y, no pet. 1:
lAC, Ltd.\'. Bell Helicopter Textron. inc., 160 S.W.3d 19L 200 (Tex. App.- Fort Wm1h 2005, no peL).
                                                 ~9


                                                                                                         49
INTERROGATORY NO. 19:                 As to each separate and distinct Plaintift: identity the
specific electronic me or paper lllc Defendant contends each separate Plaintiff used without
pcnnission or authorization from Defendant, the date of the usc, and the person or persons who
have knowledge of such alleged usc, and idcmify anu describe all damages or economic loss and
the methods and means of calculating ail damages or economic loss. separately and distinctly as
to each electronic file or paper file and Plainti 1"1: Defendant contends Defendant suffered as a
result of such use.

       ANS\VER:

        This imcn·ogatory inquires about maltct:i described in Tex. R. Civ. P. 194.2(c) & {d).
TI1creforc, in the event that Atncripro amends t)r supplements this answer at a later date,
Amcripro asserts its right to cxdudc its prior answer from evidence or from usc in impeachment,
pursuant to Tex. R. Civ. P. 197.3.

        Pursuant to Tex. R. Civ. P. 197.2, the answ1.~r to thifl interrogatory may be ascertained or
derived from the June 3. 2015 thumb drive. and the responsive documents consi:-;l of all
Amcripro files contained on that thumb drive. Amcripro objects to the request to identify each
of the 26,000+ documents on that thumb drive, and each individual date of usc (which is
available to Counter-Defendants in the metadala for those 26,000+ documents), on the ground
that to do so would subject .Amcripro to undue burden, unnecessary expense, harassment, and
annoyance. The entirety of the Ameripro Iiles contained on the thumb drive that Counter-
Defendants gave to Ameripro on June 3, 2015 (as commanded by the Temporary Injunction
Order) arc documents responsive to thi:-. interrogatory, and apply to each of the Countcr-
Dctendants individually: each of them actively participated in the misappropriating those
documents for usc in their competing business, were co-conspirators, and are jointly and
severally liable for the conduct of each other. Moreover, Counter-Defendants j.Qintly produced
those Ameripro confidential documents (•vhich lawfully should not have been in Counter-
Defendants' possession), and their joint posscs1.ion of those records gives rise to the legal
presumption that they each used it to Ameripro's detriment! Counter-Defendants did not have
Ameripro's authorization to usc (or even to pos~css) any of the Amcripro records on the Jlmc 3,
2015 thumb drive.

        Pursuant to Tex. R. Civ. P. 58, Amcripro also adopts herein by rcrcrcnce its response to
Interrogatory Nos. 2-5, and ll·~ 14 above as th\.~Y relate to damages, and its answer to
Interrogatory No. 18, which are also responsive to this interrogatory. Damages relating to
Counter-Defendants' misappropriation of Arncripro's confidential records while they were
setting up a competing onice in the same locale income, in particular, include disgorgcmcnt
damages. Ameripro will supplement its response to this interrogatory once Counter-Defendants
produce records in response to Arncripro's second set of requests for production.

       Persons \vilh knowiC'dgc of Countcr-Dclcndanl'>' conduct include Chad Overhauscr,
President, Amcripro Funding, Inc .. 8300 N. Mopac Expressway, Suite I :w. Austin. Texas 78759
c/o Susan P. Burton . Graves Dougherty Hearon & Moody, 40 I Congress Ave .. Stc. 2200, Austin,


 'Hill, supra, 2011 WL 5n06l *5; Conley, supra, 1999 \VL 89955 *S: lAC. supm, I nO S.W.3d at 200.
                                                40

                                                                                                       50
Texas 7R70 I, (5 I 2) 480-5738~ James Anagnos, Director. lnfommtion T<.~chno!ogy. Tcnura
Holdings. Inc., 8300 N. Mopac Expressway. Suite 220, Austin, Texas 78759, c/o Susan P.
Burtonj Graves Dougherty Hearon & Moody, 40 I Congress Avc., Slc. 2200, Austin, Texas
7870 I, (5 I2) 480-5738, and (as shown by admissions against interest at the Tcmpomry
Jnjunction hearing and in depositions) Michael H. Nasscrfhr, Vice President, Oak M(1rtgagc
Group, Inc., c/o Wm. Charles Bundren. Wm. Charles Bundren & Associates Law Group. PLLC,
2591 Dallas Parkway, Suite 300, Frisco, Texas 75034, (972) 624-5338: Michael E. Task, Austin
Area Sales Manager. Oak Mortgage Group, Inc .. C/O Wrn. Charles Bundren, Wm. Charles
Bundren & Associates Law Group, PLLC, 2591 Dallas Parkway, Suite 300, Frisco, Texas
75034, (972) 624-5338; Tycord R. Gosnay, Residential Mortgage Loan Originator, Oak
Mortgage Group, Inc., c/o Wm. Charles Bundren, Wm. Charles Bundren & Associates Law
Group, PLLC, 2591 Dallas Parkway, Suite 300, Frisco. Texas 75034, (972) 624-5338: James
Holden Thomas, Chief Executive Ofliccr, Oak Mortgage Group, Inc., c;o Wm. Charles Bundren,
Wm. Charles Bundren & Associates Law Group, PLLC. 2591 Dallas Parkway, Suite 300, Frisco,
Texas 75034, (972) 624-5338.




                                            41

                                                                                               51
                                          VE.RlFICATIO~



STAT£ OF TEXAS                        §
                                      §
COUNTY Olj' TRAVIS                    §

      BEFORE ME. th~: um.lcrsigncd authority. on thi~ day pL'rsonaHy appci.trcd Chad
Ovcrhauser, President of Am~ripro Funding, In~ .. known to me to he the person \vhos~: signature
is amxed belo\.V, and upon his oath. stal\'!d that he answered the foregoin9'interrogatories in the
capacity therein set out and that such answers (exclu 'ng legal wnc siom;} arc within his
personal knowledge and are !rue and   con~ ct.                 .        ' .                          .    /J .. ..,
                                                 AY11'0r
                                                     1 o WNni,                                                                    1,   rNc .
                                                                                            /

                                                  "   c            ""   •   «   . ~ .•. ~ < • •••••••••   ••   "'"'   .....   "




                                                 By:                Chad Ovcrhauser
                                                 Its:               President


      SWORN TO AND SUBSCRIBED befL1re me by Chad Overhauser on the 17th day of'
August,2015.                                 ~ ~

                                                                                              c, Stute or Texas




                                                          42

                                                                                                                                               52
              CASE NO. 03-15-00416-CV


             IN THE COURT OF APPEALS
 FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS


OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
    MICHAEL E. TASK, AND TYCORD R. GOSNA Y

                       Appellants

                             v.
             AMERIPRO FUNDING, INC.

                        Appellee

        Appeal from the 345th Judicial District Court
                  of Travis County Texas



             APPELLANTS' APPENDIX




            EXHIBIT 6
 1

 2

 3

 4

 5

 6

 7

 8

 9

10

11

12

13   APPLICANT'S   EXHIBIT NO.   11

14

15

16

17

18

19

20

21

22

23

24

25
                                                                                                             EXHIBIT

                                                                                                                   ~
                                                   DIPLOY~T            AGltlEMENT
                                           Producing Branch Manager- Cor.Jmissi on Off-Set

                 This EMPLO'r,~.tE'l'<i AaRESMENT (this ..Agrunreot} is tmdc: IU of J&nuary l, 20! 4, (the "Effrcnvc
         Date"} by Md ~ween J\meriprc Funding. Int., a Tex;u corporat!Ol'! (t.'te "'>mpaayj, and Mii;!tael H.
         ~asserfar, an individual resident oftlle State of Texas (t.'le ..Em-p)oyet").

                                                          REC)TALS:

                  A.      The EmployH bas experience i:llhe business of res!dentia: mortpge lending (the ~Busi.ness").

                 B.      The Company desi~s that the Employee serve as Pr<KiucL-,g Braneb Manager for !he Cor.r.pony•s
         !>ranch designated as B:ancb #152)80 and the Employee desires ~o Mlc! such position under the lerms and
         wnditior.s ofl!;is Agn:r:n:nt

               C.      The parties des.lre lO enrer into this Agreement setting forth the tem'ls and c:onditiors of the
        m:ployment relatlor.ship oftbe E..•np!oyee ·whh :be Corr.pany.

                  NOW, THEREFORE, the parties agree as foilows:

                  l.      ~

                       (a)     At-Will Eml210vmt:nt. E.'TtpJoyee understand$ and acknowledges that hislller employnlmt
        wit.h the Company is for an unspecified dura::ioo and eonstitutu "a.t·wi II" employme.r.t. Subject to the te:rms of
        this Agreement, Employee acltnow!odges that this em,:loymem relationship may be bmninated al 1."1)' :ime. witb
        or without good eaUK or for any or l'Xl cause. a! the optior. either of !he Company or Employee, with or withcut
        notice.
                                                                                              t
                         {C)      ~            Empleyee shall serve as the Producing Bram;h Mantger fOC" the Company's
         bran<:ll designated as Branch #I 52 i 80, with such duties and respor.slbilitie.s as the Company shall detcnnine.
        Er'l?loyoc shall devote his full time and atention during normal business hours to the business an<i affairs of 1ht
        Company. Employee's duties shltll incl'tXle but not be limited to: (i) n:mainir.g familiar with and ~suring that al~
        loans originated by the Branch are handled in aceOf'da.tlce with !be Col'ti'J)Il'IY' s policies, guidtlines, quality
        eontrol, IIP!>lieab!e fe<Jenl, state, and local !a-.v$, a:~d investor ~i;ielines; (ii) ensu:ing that all projlCf
        docll!'ll.entation is prepared, kept a"ld mai.<rtained in accordance with all applicable laws. alld is readily available
        for inspection at Cornpary's discretion; (iii) informi:tg the Company immediately of an)' and all evetts, incidems,
        cccUil'ei'ICes, eomplaints, Jewsuits,. .investiptiom, findirlp, or good faith ccncerrl$ t>f illeg.aJ, improper, or
        -c.1ethieal or O'Jltr Material information or matters ccncurri::-.g the Company end/or Braneb operations;       (l\1)
        infom'ling Company of all expenses on a timely ~.s in order to msu;c ~t payment thereof &."ld tc!hering to
        ~he Com?tJ!Y'$ accoumable expense ~i.mbutsement plan ~ (v) forwarding all fc:e5, c;;heclcs, deposlu, ett. in the
         possession of Manager to Company's Corporate Headquarte'l'S in a limely ma.-mer; (vi) wuring thal all c!osed
        loan dOCl.lments are s::cm! in Company's docl.II!ICl'l! storage system and teeeSSible!O Company upon demand; (vii}
        hiring. developing. maintaining. trz:.ining and super-ising a sales force of loan origil'l2t0rs 2!ld support staff 1o
         maxhniz:: Branch, pro:fir and ·miruJ'l'liz.c risk; {~iii) C!W.lring that all pttSOnS performing any ser.1ces for the
        Cot:'lpany ti:rough the Branch are Company employees, properly lioenscd ar.d registered, as applicable, and are
        ap!lfO'oted tc start bJ Com?a.ey an4, as applieable apprc11ed by the Company to origina:e lo~ (ix) enNring that
        J.ll employee a<:tl'\1':} including bet not limited to hiring. firing. position ;:hange, pay changes, leaves of e.blence,
        ete,, Takes p}l!ce in aecordance with policy. practice,. and appropriate COIJ)cratt level p!"'l·approval; {x) erw.uing
        lhet 11H ..0'\lt:rtising and marketing is dOTI« only .,..,-t,h the pre-approval orcom?any and that an telemat<eting is
        perlO!Tne;! in accordance with Company g-;.~ide!ines for use of the Vo Not t:all list and •s in compliance \Yith
        ,.:eoe:"'<:~i and Slate roles; (xi) ensuring that all webshes or o:her social media ;.:sed 'by the 3ranc:h cr ar.y Bmncl!




                                                                                                  January   l, 2014•••••••••..
                                                                                                                       Applicant's
                                                                                                                   Injunction Hearing
                                                                                                                       Exhibit 011

CONFtOENnAL                                                                                                           APF00000152
          Ernplcyee t!llll rela<e in any way \J fim:.m;ir.g residemial teal !:!>late are approve<l hy the Company prios m pnstir:~
          :o/a<:cess by the general public; {:~.i:) ensuring. th~t a1;y and all email con; munitatioos on beha;f of Comil811Y shall
          1>e senl from and directed thrC>I!gh corporate email. P1ivate em!til is r:ot to be used .!Or any official Company
          l>usiness; (xiii) ensuring that all borrowers are advised ofthe nost appropriate financing options, are not steered
          :o -product~ based on maximi:z.ing compensation, and are only advised to elose ioans if there is a good fllith basis
          :o l:elieve that the borrower will be able tc re-pay tie IOl!ll; (xiv) ensuring tha1 an employees are pe:formir:g
         :iuties consist=:nt with their clessitication {i.e. ~'lcmpt"!'!Onexempt) and the.t the Company is advised ~f any
         inconsistencies respecting duties and classificatio:;; and (xY) ensuring that all timekeeping policies are followt<!
         and rtlXIrds mlitr..alned; (xvi) e.'1Suring all UJHo-da:e local, state, and feeemlly required employment posters ~
         prominen!ly displayed in :a common area ac::essible by all employees; (X1Ai) ensuring ali ~uired HIJD. s:.ate,
         feoeral, and Agency licenscsleenifications are displayed in the brmclllobby as prescribed by law; (xviii) ensuring
         there are signs displaying tru: branch ll3Jt!e at all cn!ry r.oints and the hours of operatior: must be posted pe: state
         iaw; (xix) i:l!ISt:ring ti:e office must be for the solo: use of tha C~.>mpa."ly and :nay not: share sp;a;e!signat;e with a.'"ly
         other business; (x,") ensu:ing all phon::: O.."ld f~ Hnes :nust be listed in the name of the Company and the lmnth
         (A!IleriPro Funding,. Inc., Braneb #) er.d must be a.'lSWeted and displeyed aCIXIJ'dingly; and (.xxi) ensuring there is
         always a staff oht least tw<.1 employees and be open during normal busi!l.ess h0'1.1J11. Alll>ranehes are subject to an
         a.-:nu.al onsite ins~1ion, wiili or without notice, to ensure complia:"lce wl1l aU applicable regulations..

                         {e)       ;qotwithstandir.g a:ty provision of !~is A~l!r.lent to the c::ontracy, witho:.;t the pri\.lr
        wr~nen  consent of Ccmpaey, Manager is not authorized on behalf of Company to (i) sell, lease, trade, exchtftge or
        ott.erwise dispose of any capital asset of the Company; (H) grant a security interest in, hypotJ1ecate or otherwise
        eneumb"..r any e.sset of Com!lany; (iii) incur any debt, sign any lease, or borrow money in the name of or on behalf
        of the Company;{iv) confess a jUdlrJnen: again$ the Ccr.npany or settle or compr«nise in any manner ar.; !ega!
        action, claim or litigation in the Tllll7.e of !he Company brough~ by or again.st the Company, nor may Employee
        take auy actiou ir. furtherance of any .!tternpt to accomplish suth llt:ti~m without tile Company's prior )a;oy, ledge
        and conse:1t; (v) implcmtn! ma1e:iel chan&es to the operation of the B:"U~ch~ (11i) open any bank, savings, eredit,
        or investment account in !he name of Compar.y or an; DBA, parent. subsidiary or aJTtJiate thereof; (\'ii) deposit,
        cash, endorse, :rar.sfer cr negotiate any t:heck, instrument, draft or other payment payab!e to or intended for
        Company; (viii) acquiB or attemp! to acquire any signature righl.s to a;~y cfthe aforcmentioued ac.::ounts. nor may
        Manager open any account in the nune of cr a name similar to the foregoing; (ix) accept any funds or wic.
        transfers intended or for the benefit or on behalf of the Company; (x) c:.onduct any Realtor activities or hold an
        active Realtor license during. the period of employme:tt or penn it or allow other loan office:rs of the Company to
        engage in sccb activities; {xi) pay tJJ"f expenses for the branch out of any pe."'Scnal funds, or pay ar pi'O!Tlise
        payment to any person for services. as;ociated with t.ie migir.ation or pfe<::ssing of leans, who !s not en approved
        employee of the Company; (xii) issue or allow others ~o issue a comm:tment of financi.ng without proper prior
        under.vf.ting approval; (x.iii) waive any commiTment fees or fees for appraisals, credit reports, title policies, flood
        certitiea::ons or survey~ (.xh·) undel!alu: ar.y limmcing or origination of !t>a.~ in contravention of COC1Pa:JY
        policies, inclurung but not limited to st:;aw financi:-Jg, f;ip financing, or the trar.sfer ofloans .from or to Company
        wichout proper apprOYal; (xv) dcvilte from approved C.Oil1?CJ1Sation plans for any loan officers cr other
        employees; (~vi) encourage or permit loan officers !O $"((:~ eustomtlt'S toward particular loans for the purpose of
        maximizing revell'Je at 6e expl:l'.sc of custoC"'ers' in:erests ar:dJor facilitate or er.cour'!lge lending to consumers in
        the absence o.f any good faltb belie.f that the borrower is ahle to repay t.~ loan; (xviu          enecu,.·age or permit any
        actions fuar.result in lending to cons;;mers ur.der false pretenses, or p~;t Company at risk fur early pay-of:, early
        payment defauit, repurchase or r~pture; (xviii) llSe the Con?any 's r.ame ex.cept in fur>.herance of his/her duties
        em teha!f of the Company; (xix) supply Company information or com:ne:1t to :be media without express approval.
        Ma;:ager has no t>Wnctship or omer wage righls wlth respect to the: Company's name and upon term:natlon of t?lis
        Agreement. Manager shall cnse using the Company's :'l~e or any sembll!.l':~ thereof.

                        (d}      &runpanv Rl!les. Employee will remain f2roii!ar wlth aud a&.eu: tQ O.:i Com;tzny
        policies, s:andards and rtqcirements published or otherv.-ise li!ssemir.a1td by the Com1:1e;::y as we.!! tts all
        applicable federal, state. and !t~c:aJ laws and re:gu:atio:-.s, lnch.!dfng the T~ura Holdings, lnc. and Operat:ng




CONFIDENTIAL                                                                                                                 APF00000153
         Subsidiar:es Employee Hanat'IOo!c and Company Lo;m Offlw Compensation a.1d                 Broke~d I..oan Politic\.
         Employee is res;onsibl¢ for abiding by All knding laws and may not mislead, aher, falsify or f:a!.:duiently change
         any doCJ.-mentation or commit fraud::~ any manr:cr with relation to any loan 5le at any stage offue loan p~ocess.
         Employee may not steer customers 10 loMS in order to increase or maximize personal compcr.sation. Employee
         may not enwurag,e ar:y customer to enter into a lean vnleS$ Employee bas a good iaith belief !hat the customer
         ilas the ability \o repay the loan. Emrloyee may r.ot assist a w.stomer in clo$ing a Joan if Employee has s::~fficient
         :eason to believe the customer has provided matcria:ly false information in C01ll'leetion wit~ the mortgage
         applicaticn. Employee shall immediately report any conduct of which slhe becomes aware, in violation of the
         above, to the President IJ! the Company.

                          (e)     l.icensu,re. Employer requires t1at Employee holds am~ loan o:iginator license as
         ~qulred ~y  lm SAFE AGlll:ld the applic.eble state in w)",ich bt:/she des.ir:s to do t:usintsS. Employee mlrj ~n:y
        or;g.inate !oa:u in the swte: where heishe is licensed and Err.ployce andtor bis!her bnmc:b are physica!l}' located,
        unless otherwise appreV"'..d by management in writing. Please contact the Company for a liS! of ap?toved sta.'leS.
        Employee is ret~ulred to be licensed md agrees to complete an r.ecessa1)' steps witiJin the Nationwide Mortgage
        Lieensing System & RegistryC'NMLS") to asSQcisre wi'h the: Company.

                 a) Mai!'rtenanc:e of Current Licensure -1; i;; Emp!O)-ee·s responsibility to renew and keep all requited
                    registration. licensing and training obligations eonti::uousJy cUrrent. 'It is Employee's respo!'.sibility {0
                    provide documentallon of license: renewal at the: time of renewal and as required and -requeS!ed by the
                    Company. Employee must be current with 1icensure to originate loans.
                 b) Failure to Mainmin Licensure - Should Employee fa!! to renew Jm.lher liW~Se or if Com-pi!lly is
                    unable !o verify that Smpioyee holds a C:\!trent license, t.'ler. Employee will not be allowed to originate
                    loans and may be plac:cd on unpai~ l1JSPI!'r'.Sion and!or be subject to immediate te:-mination.. Employee
                    will have a maxim11rr. rsf 30 days !o produce verification uf currem licensure. lf, After JO days,
                    Employee has not produced verification of current licensure and Company is enable to obtain NMLS
                    veriti:ation,. hel$he will be tt-'Tninated for fl!ilure to meet minimum requiremllnts e>f the po5ition.
                    Smployee is ::ol entitled to eomm!ssion on any loa.'1 originated a: any time wllen Employee was nat
                    p~operly licensed.


                 Employee v:::rifies that he/sht does nclhold a current .ar.d active Real Estate License.

                 2.       Qmloensation.

                             {a)       Compensatioo; Bene1lts. The Employee wll m:eivt cash compensation of $2,000.00
         per month as hlsrner selary to be paid on a semi~monthly basis i.r. accordance with the Cor:rpz.r.:y's regular pay day
         schedule, wh!cb will be a draw agailJSt cmr-'1l1ssiosls and other tompemation ee.mcd as set forth below. The
        &-npioyee will also be eJlgible to re::eive commissior.slbonuses in aceordarr.:e with -exhibit A attached hereto;
        provided, thAt, the Company may amend 1his Agreer.~ent from time to time 1o provide Employee with an adjusted
        base arJ'!ual salary and adjusted period¥:: bonuses as it may d::e.m advisable in Us St>!e discretion. CommissiellS are
        calculated by deducting the Base Pay paid dcring tl:e C'Jr.eJlt pay period,. from the aggregate commission. ltl the
        event tMt Employee's Base Pay for the applicable period e:tceeds 1M commission, any negative balan« will be
        can-led over and reduced :n :he calculation of furore commissior.s. Ir is understood t.'tat Employee is not er.tit!ed
        to commission simply for proeunng a loim; N6 commission is eaJ·»ta. ea:rued. or payable to Empfoyee unless and
        unril the loan has closed and funded 1lnder the Empl~e·s superl'isfop. As defined herein, a loan is not :losed
        t.'llless and \.rotH tl-Jt loan has gone tn~ugh t:!esi:1g, ell monies have funded, any rescission period has expired, and
        a!! proper COC'.lll'Jentatlon bas beer. fi!ed ir. c.on~Vection wi!h the lO!ln, and in ac:eordanc:e with &iY,Jiicable federa!,
        Slate, ar:d ioc:al mor:gege lend!ng la\\S a11d regulatior.s. ln tie event that Employee fails to obtain reimbu~ement
        for the CompMy on expenses on Jeans t'Urt do not elose. or the commissions are n:captwed pe• :he Company's
        Scondary Marketing Policy Maaual, st.'Ch company {or bo;TOWer) e~sc:; reduce the E:nploye::'s gross
        commission as stated in Exhibit A. Employee agrees !hat in the event he/sl:e believes there is any error In


                                                                                                   January t, 201~




CONFIDENTIAL                                                                                                              APF00000154
         ~;ono!!ctior. witl'l the 1::lculction ofhis:her comrni$$ion, he/she wi!l mise: •l'l}' mch di~agreernent in writing with me
         Ccmpacy. within 30 days c;f paymern of t!t~ eommission. Failure :o do so acknowledges agreement wrt.l) the
         amount of the commissions paid. Emplo)'ce agrees that '.lpon 1he execution of tiis Agreemem, there a.re no
         disputes pertaining to compensation with Company and that Employee has received all pay n.'\d compensation due
         :o him/her !!S  or            or
                                the date      the fl:Ne:Clltion cf this Agr:.e:ncr.t. Employee agrees and acknowledges tmJl the
         Company is umkr no obligatio:~ tc provide Employee with benefits, including. but not llmi!ed to, :!leallh
         :muranc~ prQvidtd, thttt Employee will be errtit;ed to any benefits ~he Company rna'kes ava!l.able to its employees
         in the ordinert cou11e of business. Employee shall be entitled tc receive vacation and sick time per the
         Company's employee handbock. Such vacation time to be scl:eduled cy mct>..ml ~eernent of the Company and
         employee.



                          (a}     The   c~mpany    represent\; ar.d Wamlnts that tbis Agreement has been authoriwl C}' ell
        :lCC'=SSlU')' corporate action of the Company and is a valid and binding ~ement of tlote Company enforceable in
        accordance-with its te."ms.

                             (b)   The Employee represents and warrants that he/she is I'!Qt a party to any agreement or
        inst:'l.l.'nent that wcu1c prevent himll'.er from ente:ir.g into <::t performing, his/her duties in my w::y •.mdcr t..>tis
        Agreement
                  4.      Assignmsg1; Bindin& Aszeement. This Agreement is a personal contra::! and the ri~1'ts and
        in1etests ofthe Employee hereunder may not b! sold, transfetT~, assi!lJ1ed, JJledged, encumbered, or !lypot~ec!
        by hlmlber, except as otherwise expressly permitted by the provisioD$ of tf:ris Agreement. This Agreement s!!all
        inm to :he benefit of and be enforceable by the Employee and his/her personal or !ega! representalives,·
        execulms, adminlstra:ors, successors, heirs, d:stnoutes, devisees a..,d legatees. Tf the Employee should die while
        arrj a.'Tiount would still be payable to himfner hereunder had the Employee cantim:ed to iive, all stK:h am:O\Ints,
        unless otherwise provided hen:ln, shall be paid in acc<lrda:ncc with the tenns of this Agreement to his devisee,
        legatee or other designee or. lfthere ls no sllch designee. to hlslher e.stete.

                 S.      Cgn'5<!eptiaJltv: Ownership ofWor!c$.

                        (a)        Tn: Company agrees that upon or prior to !he commencement of Employee's
        employment, lllc Company will provide,. o; has provided, Employee v.ith Confidential lnfom:ation (as defir.ed
        below). ln excmt:'lge, Employee agrees not to disdosc such Confidential Information o1ber tl!afl as pe:mitted b
        this Agreeme:~t a:r.d tc use the Confidential lnformation solely for the CQll'lptmy's t>r:nefrt.

                          (b)      The E:nplo)·ee &cknowledges that: {i) the Business is intensely eompetitlve and that the
        E::'lp1cyee'J emjlloyment by the Company wiil require t"':a.t the Employee have ac¢:55 to a~~d k."lowle-dge of
        eonfider.rial information oftl;c: Company, inc!uding, but not lirn:ted to, the identity of the Company's employee:<,
        customers, payers or suppliers, wit~ whO!ll :he Company has deal!, the kinds of services provided by tbe
        Ccrnj::any, tile manner in wbi<:h s>.tch services arc pe:-for:ned or offered to be performed, pricir.g informa~ion and
        other oontrac1!icl tems, in:"cr:t:ation c:oncemil'lg the w...ation, acquisition or disposition cf products and services,
        creative ideas "aft:! conctp:s, including fir.a~1cia1 systems, cor.l?uter softwa.-e awlications and ot.ier p~zms,
        research datll, ?CfSon~el mformatitm a'ld omet trade secrets (c<-Hectiv-:iy, !he "Confidential ln!ormatio~:~'}; {i!)
        lhe direct or indirec: disclosun: of any sue~ Confidentiallr.fonnation would place the Company a~ a eompttitive
        diSt~dvarr..age an~ would: do damage, mor.etary or otherwise, to the Comp~my's business; iL"!d (iii) the en&aglng by
        the E.-nrloyce in any of the ac:tivities prohibited by this Section 2 may constitute improper appropriation and/or
        1.\St of n:cb Confidential ltlfonr.atiop. The Em;>lo;ec expressly acknowledge$ the trade secret status of the
        Confioer;tie1 lnformn:lon and that tie Cor.fi dential Information ecnstitt.ttes a protectllble business ir'teres1 aftl'te.
        Compa.'ly.




CONFIDENTIAL                                                                                                           APF00000155
                             (c)     For p\lrpo~s nfthi~ Secp1,;-g 5 me Compl'lny shuli be construed to include tiJC Company
         :L'ld ixs pare!lts and subsidiaries engaged in t!:c Busi:less, ite!uding any divisions managed by ;';le Employte.

                             (<!)      During the Employee's employment with the Com!>any, and at all times 11fter the
         ~ermina!ion    of the Employee's e.rr.ploymeot, the Employee shell :101. directly or indirec:ly, whether il'l'dividual!y,
          as a director, stcck.holder, O\\IJ'ler, par:ne:, employee, principal or agent of an~ business, or in any oiher ea~acity,
          -n;.;K.t known, cli.sc:os:, fumish, make availebl!: or utilize any of the Confidential Information,. other than in the
          proper perfom:ance of the duties eonterr.pla:cd herein, or u expre$sly ;>!!r;':'litte<i herein, or as rec;uired by e court
         of-competent j:.uisdiction or other adminiSlrative or legislative ~y; provided that, prior to disclcsin~ any of the
         Cc1'1fiden:ial Information u reqt.<ired by a court or other admin:s:rruive or legislative body, the Employee sha!l
         promptly no!lry tile Compzn)' so tl:at the Com):~ :nay seek a pfotec.lva order or other appropriate remedy. The
         Em?loyee ey;~es to rett.:m ai! doctunents or other materials e.¢!1tainin& Cun!idential lnfo1111ation, in:luding all
         ph;:mx:o?i:s:, extracts and st•m.martM ;hereof, and any sue.~ information stored electronie.ally on tapes, computer
         di:l<s ur i:1 any other rnanr:er tc: the Company a1. e::y tir.le '.lpon request b)' The Company l!lld immediateiy upon the
         ttrrnination c.fhis empioyrr.OJ:nt for an:-" reason.

                          (e)     for a period cf one year followir.g the termination of the Employee'$ ernploymem wi:h
        t:te Company, the Employee agrees thet t:e will ncl, C:ircct!y or inc:rec:!y. for his benefit or for the benefit of anv
        other person. fir:n or en!ity, do any o( the following:                                                               ·

                                  (i)      solicit from any cust-::mer, payor or supplier doing business wit.'l the Company as
                 of the Employee's termination, business of !he same oro: a s!mllar narure ro t!te business of the Company
                 with soch Cl!!:on:c:r, payor orst:pplier;

                                 (ii)       solicit from ll:li' know;: C\lstomer, ;:~ayor or supplier of the Company business of
                 the same or of a similar oarure to that whicl': ha• been the s-.;bject of a known wri1ten or oral bid. offer or
                 proposal by the Company, or of subste.ntial preparatiQfl wit."t a \'icw to making such a bid, proposal or otTer,
                 W\thin six months r;l'icr t~ the Employee's termlnation;

                                (iii)   rec.~..nt or solicit the employmenr or services of, or hire, any person who was
                 known to !::e employed by, or t. cr.msclta:~t of', the Compacy upon termination of the Employee's
                 employment, or within six months prior thereto; or

                                  (iv)     orl:erwise knowingly interfere ....~1h the business ofthe Company.

                  >i<Jtwithstanding anything to !he contr.ll)' conte'ned in the forcgc•ing, the prohibition conlaine-:1 in Section
        S(e}(i) and S(e)(li) $halt not apply t~> e:ny customer of Employee thm existed prior ~o employment
        \.,.;~ lh~ Com;-any, provided the customer ane <heir l:>an is ;;~1 being se:-vi::e<l by the Company.

                           (1}     Employee I!Ck.'lt>Wledges that all leads and !oarxs ir; process ~ Ce>mpany'z prt~perty.
        Err.pioyee a~rees to provide Ul)On termination a '~.'~'litter. accot:n1 of any and all open leads, business prospects,
        an<! lor loans in proeess as (}[the ~e of niSI'ner termir.a!ion, and agr«s not to take any action to diven such loans
        to a competitor or av.ay from Cornplln). Provided the E.'np;oyee terminate<> ir. good star,ding an:lls available 10
        help with and per.!cipate in ·the closing -process whea requested, heishe will be· eligtb!e ror compensl'tfon on
        pending loans that <:lese within 30 days of terminatior:.

                        (g)      The Employee wi;: rr:a'<e f;U a"'lc prompt disclosure to th= Company o! 21! invemions,
        improvements, formulas, data, programs, p~ocesses, il.leas. eoncWf$, discow:ries, methods, developments,
        so.i:ware, and works of authorship, •Nhetl:er or :~ot copyrightable, trademerkab!~ or patentable, which are created,
        :nade, conceived or red•Jeed to praC'Iit:e by tbc Emptoyce, either alone, u:1der his/her direction or jo!n:ly wl:h
        others during the period ofhislh~r emp!cyrr.em \v\t1l~e Company, whethe:- or no: during norm2l working hocrs


                                                                                                 Ja;;ua.; l, 2<11 4




CONFIDENTIAL                                                                                                            APF00000156
          or 011 U-:e ;l:"el'lliSts ol tneQ:mpany, which {i) rel:r.c tC tflt a:ru!U 0: llll".ietpatert business, activites Of research Of the
          Company, or (ii) result fro:n or are suggested by work performed by the Employee for the Company, or (iii)
          r>:$clt, to any eme:n, from u.s~ of the Company's premises or property (all of which are col!ecti~ly refer:td to iu
          this Agreemer:t as "Work.\") All Works shrul be eortsidered "WORK MADE FOR HTP..E" l!nC shiT !lethe sole
          pro;:>ertY oft he Com~any, am!. to the extent :."tat the Company is not already considered the owner l!li a matter of
          law of aD)' Wotks created, mace, conceived or reduced to prae:ice by the Employee prior to the Effcetlve Date, to
          :he ext~t not pre'lliously assigned to Lie Company, the Employee h~"t!>y migns to the Company, without further
          compensation, all his/her righ:, title: and in:erest in and to suer: Works and any a"ld all related intellectual pror;my
          rights {i:!Ctuding, b:it not limited :o, pater:!$, patent tli)plieations, copyrights. copyright applict.tions, and
          lrademarks) in the United Slates and elsewr.ere.

                               (h)       The Employee agrees, upon :he h::ml.inatic-n of his employment, that .slt:e will
           rmmediately r1:frain from a:;d di:s.cor.tin<Je mding any n:pres\."fllt.tion l\J w1y o!l1e1 p~:rwn 01 emiry <hat SJ111.~ is an
          employee of the Company. Jn addition, the Employee agre~s to immedia'!ely delete any staternerus or
          re;::resentl!tior.s tl'tat slhe is an employee of the Company from any saci!ll rr:cdia site, including but oot li.""'lited :o
          any wee log or blog, journal or diary, pe:.sonal-website, social netwo!ldng or affinity website, web blllletin board
          o:r a chat room, video or .,ild posting. personal newsie!tcr or oth:r Ir.t=met posting. Employee at:koowledges d:~t
          maki:ng. such n:prese1:tations or failing to correct :>t.-:h lnformetion on any social :11cdia sfle constitutes a false,
          ;r.ate:ial statemer.: cffsct that !s detrimental tc the Company's legitimate busi!'leSS i"'terests.

                            (i)     1"l'ta Employee acil:nowledges that the sen·icts to t:e rendered by himn:er to •.he Compa.1y
          an: of a syecial and uniq'Je chan::.cter, which gives this Agrer.m~nt a pe.culiar value to the Company, the loss of
          wllith may not ~ reasonably or adequa:e!y compensated for by ::lamages in an ac+.ion at law, and that a breach or
          threatened b<rea<:h t>y himrber of any of the provisions con:ained in this ~on .S will cause the Compa.'ly
          irn:parabie injc:y. The Err.ployee 1heteftm:: agrees :hct tl'le Company sl-.nl! bfl entitled, in addition 1c any other ri&ht
          or remedy, to ~t!:m)lOTilr)', preliminary and permanent injunction, wit!: out tbe neecssity of proving the irntdequecy
          of mor.e!!I"J <!am ages or the posling ofany bond or sec'Jricy. enjoining c:r reslll!ining :he Employee frc:n any such
          violation or ;;hreatenad violatio:~s.

                              (i)      The S."llployee further acknowledges and agrees that due to the uniqueness of hisllter
          !-t:rvic:es and confidentiel nal\:re oftM information slhe. -will oossess, the eove;~ants set forth herein are rus::mable
          a."'d ne::.etsary for !he proteeli on of the busbess ar.d goodwni of the Company.

                            (k)      l! a court of competent ju:isd:ction dctctr.lines thai any term, covenant, or provision of
          tbis  ~im;,~ is lnvaUd er 'Jne:Uort:eabl~ fN any rer,son (irn:luding without limitation unenforc:eahility due to
          c~~erbrea.dth, vagu~ess. or ur.reucmabler.ess of dmation, SCO?e' cf ac!ivity, or geographic area), theo this Section
          §; $haU be de~c~ divisible, \loitll zil otlw terms, CO"Cil3!"11S, md prov!siorno rt'.trmi!l;ng in fun fon:e attd effeet, 2nd
          the Jnv.a.bi lcrm!, covenants, or provisions sl':all 'o:: !eemcd aulomatitaliy refurme4 and amended 10 include only
          such terms:, covenants, and proviskms (inc!udiag terms. covenants. and provisltlns relating to the duration, scope
          oi w;tivi:y, and geeg:-aphic area to which this As,reernent applies) as the coun determines are valid 2nd
          enforceable, a.1d the provfsiccs of !his Agreement GS ~o amended shall b: valid and b~rxnng u;:>on Employc:e end
          tile Company as :hc'Jgh the un~mfcre:able por:ion or provision had neve: been lnclu.<Jed in this Agr=nent.

                   6.       Non=Disoaragement. The Employee agrees t!Jat slhe will not make fabe, cefamarory, o~
          disparaging s:atemer.ts or represer.tatjOil$ about the Company to any other person or entity, inciuding without
          limitation, loan; CUS:tomers or supplie.!'S o~:l:e Company or lliiY ot'tlleir representatives, whether such statements
          or represen!atior.s are in person, i:~ v.Titing, or on a:l)' sacial med!a slte, including but not lirr:itecl :o art~· web log
          ot blog. journal or diary, JllmOnal website. social Mtworking. or a:o"flnity website, web bulletin ODard or a clla:
          room, .,;cleo or •,yjki po$trng, perso:l&! newsloa~ter 'X ::>li:~r lnw-n~ !"'l$lil'IP.;




CONFIDENTIAl..                                                                                                                  APF00000157
                7.      lngemnifil:!!ion. Swjec:; to and as pe:miued by the ~egulalions promulgated ~Y aneta: PU11i<mnt
         tt'HliD, FHA, RESPA ar.d as allowed by any federal, $l<ll.e or local law or ordinance, Employee shall inderru:ify,
         defend and bold harmless tte Company from and against any and all losses, claims and liabilities resulting from
         Employee's materia! lr.c!!ch of1his Agreement (including, wi1hout li:•nitation, a misrep~ntation urctr Section
         3fb)) or a.TJy Hmbilities ofthe Employee which arose prior to the date of 6is Ag:-eemertt.

                  S.      Ngjjc~. AU ootict5 and othtr communications undenhis Agreement $hall be 'n writing :mO shall
         ?e deemed give., w!Mln de!ive:-ed personally or one business day following mailing oy ov:might delivery s;ervlce
         <'>r upon receipt or refusal !f mailed by cer!ified mail, return receipt reqt:ested, to the pe.'tics at the fol:owing
         addl't$SC$ (or 10 such other address as a party may have spe:cified by notice given 10 the other party pursuant to
         this prpv~sion):

                  1fto Com;acy:
                  Ameriprc Funeing. Jl'\c.
                  Ann: Lora Gray
                  SlOG N. Mo'Pac Expressway. Sui!e i 2\l
                  Aust:n. Texas 78759


                  lito tile Employee:
                  Michael H. Nasserfar
                  41 09 HookbiJ!ed Kite
                  Austin, TX i873&-657l


                  9.      £mire Agreement.     This Agreement col'li2Jns all the understandings between the pa.rties hereto
         pertaining to the matters referred 'to ~ercin, and supersedes any other ;mdertakings and agreements, whether c-:al
        cr ln writing,, previously el'!"..ered imo by <hem with t~~ th~o. T!le Employee represents that, b executbg
        tNs Ag:u:rnenJ. slbe docs not rely end has not relied upon any ftlpresetltation or statement not set forth herein
        made by the Company wltl: regard to the subject matter or effect of this Agreement or otherwise. However, this
        Agreement does not supersede the Company's rights under any ether agreement belween the Employee and !he
        Company that (i} protects t.ie Company's proprietary information or intellectual prOpt."tY, or {ji) pr\lhibits
        Employee from cor.tpetir.g with the Compa~y or soliciting the Company's employees, custom!fS, payors or
        .s.,.ppliers; rather ail sue!! rights of the Company under any such ~emcnts shall be in addition to the rig.irs
         granted in this Agn:ement

                 10        w~iv!'l!'S :~nd Am!mrlrne:=jts. This Aereement may be a.-ncnded, modified, superseded, caneeled,
        ;mewed or extended, ;md the terms and c:o:~diticns l'::reof may ~ waive:d, cniy by a writam imtrument signed by
        the parties or. in the ease of a waiver, by :he party waivir:g compliance. No delay on the pan cf any party in
        exercising any rig}!!, power or privilege hereunder shall operate as a waiver tl':ezeof: nor shall ar.y waiver 011 the
        part of e:ty pe.rty of any !'ight, pcwa..t or prhil~e hereunder, no; any single or pa11.ial exercise of l!ny ~lght, power
        or privi:q.e bereun<icr preclude ury oticr or further exer~ise !hertOf or ~he exereise of a:'ly ot.ier right, power or
        _Pr!"i!ege herel!~der.
                  ll.     Governing Lew. This Agreement s.1al1 be governee by, enforGeci cnder ani cons1rued in
        accordance wi:h tt-e laws of the State of Texas, wilbout givir:6 effect to a:~y eboice or conflict of law provis:on or
        rule thereof. This Agreemtn: shall be cons:roed as ifb:nh Parties bad eqaa.1 say in its drafting, and th:lli sbtll not
        be co!'lStn!ed against the drafter.

                12.     Submissicn to Jurisdiction: Consent to Service of Precess. Ez<:.."l of the pa."lies hereto hereby
        irrevocably and ~.met>ndit\onal!y cor:sents to sub:r.il to Lie excl~ivejurisdiction of:he courts of the State of'Texas




CONFIDENTIAL                                                                                                          APF00000168
         .a.nd of the Un:tcd Slates, in each c~ iocated in Travis County, Texas, for any litig2:ion :ansir:g ou: of or re!atir.g
         !c this Agreement and the tra:Jsacti<ms COlltempJated l:ereby (ar:d agrees not to commence ar:y li!igaticn relating
         t~ereto except in such courts). Eacr. of tile perties hereto hereby irrevocably 2r.d un~ondil1onally \vaives any
         objecti<m w the !eying of ven:~e of lillY lHi&ation arisin6 out flf this Agreement or 1hc 1ran!'S:tions contemplated
         hereby in the cmrrrs of !he State ofTe?mS or of the t:nited States, in eech case located in Tnvis County, Texas,
         and hereby further irrevocably and uneonditioni!.ll;• waives and agrees not to p!ud or cleim in eny such cccrt tllat
         any $UCh litigation bro<Jg,'1t ft1 an)' such OO\l1t has been brought ir. an incc.nveniern forum.

                   ; :;,    Assignmen:. This Agreemer~t, and the parries' respective righ!S and obligatic>ns under t.IJis
         Agreemerll, may net be assig.'led by ~ny patty without the prior w:i!t!ln ::cns<:nt of:he other pany, except tlls: the
         C:>mpar1y may assigJ~ this Agreement to any of its st:b5idiar!es or affiliates or to a.1y su:cesS()r by merger or sale
         of zll or s:.tbstanti:dly all of tl~ Company's !!$StU, wiilio\lt th" Employee's consent provided that the assigs-.me:~t
         doc.~ not diml:::ish ilil)' cf the Employee's benefits, !"ig.1ts or obligation$ 1-..ere>JJlder.

                 ! 4.    Withholding. AJl pzyments ~o :he Employee under this Ag;-cer.tern sr.all be reduced by all
         appllcab!e withholding requ!ree by fede:-al, stille or local law.

                    l $. . fwirr.lle E?;eeutioo and QelivS£'1. A facsimile, electronic mai!IPOF c>r o1her reproduction ::f this
         Agreement may be exec!lted by one cr more parties hereto. art! an executed copy of this Agreement may be
         clellvered by one or more parties hereto by f&e>i:ni!e, electronic maU?Df' or similar :!ee:ror.ic rremmissior.
         de'>' icc pcrsu!lllt to .,..,hi~b the signature of or on beha!f of sccb ptr.y can be seen, and such execution and delivery
         shall be considered vali<l, 'Jitl<!ing ar.d effective for all purposes. At the rer;uest of any patty hereto. all panies
         hereto agree to execute an original of this Agreement as well as any facsimile, electronic maili?DF or other
         reproduclion hereof.

                16.     Counteepw. Thi~ Agreerr.~nt :n;:y be executed in two or 1~ore counterparts, each of which shall
         be deem~d an odg:nal and all of wl'l icll tOf.ether shall G01Tstin."te one and the same lnstrum:nt.

                    17.       Se¥mbilin.:. lfany provision oft.l)is Agreement is held by ft:'lal juegmen~ of' e court of competent
        jurisdiction to be invali<:, illegal or unenforceable. the invalid, illegal or unenforceable provision shall be severed
        from t.;'! remainder of t.'lis Agreement, and the remainder o:' t!':is Agreeme:rt shall be enfol':ed. In addition, the
        invalid, illegal or \inenfor<:eable pro,ision sJul! be deem~::! to be autQl':'latica!!y modified, and, as so modifi t:d, to
        be included in this Agreement, such m<x!iii~aticn being ma<!e to Ute minimum e.'<1ent r.eeessa!) to render the
        provislcn valid, legal aml enforceable. Notwithst2nding the foregoing, howe-~er, if the severed 'Or modified
        p;ovisiGn concerns all or a pccr.io:1 of :.he essential consideration to be delivered under th;s Agreer.~ect b-y one
        pe.'1y to the Q:her, the remaining prov!~icms of this Agrecm01t shall also b1: modified to 1w: ex1ent nc:ess:ary to
                              rames'
        a::lj:u"t equi!c":lly lh:        resp~t!ve right!> and obligations h~rrJnd'lll',

                     18.      ln!eruretation. The vrords "hereof,.. "iiereto," "herein" and "hereunder" a."ld wnrds of similar
         i'rport -,.ben used in tltis Ag:rcemer,t shall refer to th1s Ag;·eemer.t as a whole andnot to any ~art!c:~lar pro¥ision
        of this Agrl!t~ent, ancl Set1ion and Article w.f~rcr.ces a~ to this Agreement unless otherwise specified. Whenever
        the words "im:lude," "Included" or "ir.ehding" are used !n t.iis Ag:reemertt, t"':ey shall be t.!eeme<! to be followed
        :ry :he words "without limilation." The cleseripti"e heacii!lgs herein are inser.ed for convenience ofrefere:-.ce only
        aml shall in nc way be Ctr.'IStruec :.o define, limit, describe, e:<piain, modify, amplify or add to t.'le irnerpre:at!on,
        car;Struc:tion or mearJng of any provision Qf, o: scope or intenl of, t'tis Agreement nor i:1 any way affec1 th!s
        Agreement. ln this Agretment aH n:ferences ;:;) "$" !lTC to United States dollars. A11 terms defir.ed i:t this
        A~ment shall have tbc defined meaning$ when used in any d:xi!Il:cnl made or delivered pursuant hereto ·.mless
        OThe:rwise <!efmed therein. The definitions con!ained in this Agreement a.-e applic:a!:le to the singula: as well as
        the ptll.''ll.l form:; of sud! tel'l'!lS. Parsonal pror.olJlU >hall b: construed as though of the gender and numbe;
        ;equircd by the context, and the smgt:Jlar shall inelu:ie the ph!ra! and the plural the singular as may be required by
        L'le conte:tt. The ;:attics heret<l ~that no par!)' shall be deemed :o be the dtti':er of thi;: Agreem~nt and 1hat in




CONFIDENTIAL                                                                                                            APF00000159
         :he ev!lnt th1s Agreemenl JS ever c:onstn:oo tty 2 col.lrt of i~w cr tGUity, St!eh court sha'l n('!\ construe tllis
         Agreemem or any provisicm hereof aga!nst either pany as :he drafter of the Agrewent.

                 19.   Ef'eelive Qilt~. A:fto:- thie Agreement is signed by both Pa-ttS, this Agttemem shall ~orne
         :Eevtivc upon Employee a.'1d Compat~y esrabli;;hir.g a reiationship and spoosorship on the NMLS ("NMLS
         Affiliation"). lf !he NMLS Affiliation occurs i)t!or to the exect.1ion of thi.s Agr~menl, the effective :late
         hereunder sb:!ll be the uate both Partie<: have aecutcd th:s Ag.rc:::r.ent.

        ll" \\1Th'ESS \'f~r!EREOF, the parties hereto have executed !hili A~mcn~ to be effective as of tile Effe,tive
        Date.



                                                 COMPANY:
                                                                                           •./'""   •'
                                                                                      ,.
                                                 AMERlPRO fUNDPfG; 1~(;::,
                                                 a Texas cor;:~::~rat~qn"' /r
                                                                .//

                                                                          r       •

                                                 Bv:                  .."/-·'.·
                                                       La.-ry Cr!s'k,-<Regiooa1'Siifedv!anager- TX, OK


                                                 EMPL01'EE:




                                                 Michael H. :Kasse:far




        Eroolovmcnt Ag.reeme:n • Page 9




CONFIDENTIAL                                                                                                     APF00000160
                                                           EXUIBlit\
                                                Commi$sion & Bonus Schedule
                                              Producing Branch M.-.o11ger, TeJtns

          ln addition to the base compensation describe-d in the Employment Ag;'«ment you are emitled to receiv~:
          the following:

              l) Co.mmissi.on CaletJ!atioll- Alle>eab!e Revenues for the entire Lekew11y Branch (l52l80)(BPS x
                 volume from commission schedule: beiow) (BPS x volume from commission schedule below) leJs
                 Commissi-on OF.sel Ballll'lce less Uncollec:ed Fees less Approved Business Exp.mse (in
                 accordance wilh the Compar.y's accounu61c expense reimburseme:'lr plan) ~:Ja!s Gross Eamee
                 CemmissiorJ.




                 Tht above mentioned ca1:1mission sch!:dule:
                 -does not apply to any low that cemains bo!'l'Ower paid compensation
                 -applies only to first lie::: closed end for,.·ar<.l transaerioi\S unless otherwise appravec! by the
                 Company in w:iting

                 Cqmmiss.ion Pgy Schedule:
                 Semi-monthly: Commissions ere paid on a semi-monthly basis. All loans with a Payroll Eligible
                 Date from the i"tbroug,h~e 15<t <:Jftne month will be paid <:nthe last day oflhemon:b. All
                 loans with :t, Payroll Eligible Date fror:'l the 16&. to tie end of the mor:th ~ paic on l?'le 151< of the
                 foHowingmonth.

                 ?a:vroli Eligiqilily P9ft:
                 ·Loans where AmeriPro Funding, lm;. is tht ~:reciter: fundbg datec
                 -Loans where Ameri?ro funding, be. is the brok!:r: ~he day following completion of loan cheek
                 by Quality Control and Complianc~:




         Emplcyment Agreement- Exhibit                                                             kwary I, 20!4
.l
 i




CONFIOENnAL                                                                                                         APF00000161
               Z) Guidtlines
                  a) Should the Ll!kcway Branch (l52lSO) b~ eligible to reoeive a Secondary Muketing)ncentiv!!
                     bemus, s<.~ch bonus will be paid accordingly:
                              i. 70"/o to Michael H. Nasserfar
                             ii. 30"1.! to Michael E. Task

                  b) Employee is allowed to ~ro.!{e: loans th:<>ugh Company approved channels (provided he/she
                     resides in a Nor.-Prooueing or Relai: c!esignated branch).

                      _x_Yes __ N.,



            ~ .. AI~,
          Mich.:el H. Nasscrf2r




                                                                                        January 1, 20l4




CONFIDENTIAL                                                                                              APF00000162
