                                                                               ACCEPTED
                                                                           05-15-00123-CV
                                                                FIFTH COURT OF APPEALS
                                                                           DALLAS, TEXAS
                                                                      9/22/2015 1:38:37 PM
                                                                                LISA MATZ
                                                                                    CLERK

                  No. 05-15-00123-CV
_____________________________________________________
                                                    FILED IN
               In the Fifth Court of Appeals 5th COURT OF APPEALS
                                                 DALLAS, TEXAS
                       Dallas, Texas         9/22/2015 1:38:37 PM
_____________________________________________________
                                                   LISA MATZ
                                                        Clerk
               BRINSON BENEFITS, INC.,

                        Appellant,

                           vs.

       LINDA HOOPER, SEAN SENDELBACH AND
         HOLMES MURPHY & ASSOCIATES, INC.,

                       Appellees.
_____________________________________________________

         Appeal from the 101st Judicial District Court
                   Dallas County, Texas
_____________________________________________________

             Brief of Appellee Linda Hooper
_____________________________________________________

                             James C. Scott
                             Texas Bar No. 24056287
                             Gardere Wynne Sewell LLP
                             3000 Thanksgiving Tower
                             1601 Elm Street
                             Dallas, Texas 75201
                             Tel: 214-999-3000
                             Fax: 214-999-4667
                             jscott@gardere.com

                             ATTORNEYS FOR APPELLEE
                             LINDA HOOPER


           ORAL ARGUMENT REQUESTED
                         List of Parties and Counsel


Appellant:                             Counsel:

Brinson Benefits, Inc.                 Lu Pham
                                       David Speed
                                       Cantey Hanger LLP
                                       Fort Worth, Texas
                                       (Trial Counsel)

                                       Lyndon F. Bittle
                                       Monica Latin
                                       Carrington, Coleman, Sloman &
                                       Blumenthal, L.L.P.
                                       Dallas, Texas
                                       (Appellate Counsel)


Appellees:                             Counsel:

Linda Hooper                           James C. Scott
                                       Gardere Wynne Sewell LLP
                                       Dallas, Texas
                                       (Trial and Appellate Counsel)

Sean Sendelbach and                    Cody L. Towns
Holmes Murphy & Associates, Inc.       The Rodriguez Firm
                                       Dallas, Texas
                                       (Trial and Appellate Counsel)




                                         i
                                                                 Table of Contents

List of Parties and Counsel ................................................................................................................. i

Statement of the Case ......................................................................................................................viii

Statement of Issues ............................................................................................................................ix

Statement of Facts...............................................................................................................................1

Summary of the Argument.................................................................................................................8

Argument............................................................................................................................................10

           I.          Standard of Review ..................................................................................................10

           II.         Hooper Prevailed on the Theft of Confidential Information Claim.................11

                       A.          A defendant that successfully defends a TTLA claim is entitled
                                   to attorney’s fees ..........................................................................................12

                       B.          Brinson did not prevail on the theft of confidential information
                                   claim...............................................................................................................17

                                   1.          The trial court allowed Brinson to submit a
                                               separate theft claim to the jury ......................................................17

                                   2.          Brinson did not prevail on the TTLA claim
                                               concerning confidential and proprietary information ................20

                       C.          The trial court did not commit reversible error in excluding
                                   damages for theft of confidential information.........................................23

                                   1.          Brinson’s lost profits damages regarding Door Control
                                               were too speculative ........................................................................24

                                   2.          Brinson did not disclose the alternative measure of damages...27

           III.        The Trial Court Awarded a Proper Amount in Attorney’s Fees .......................29

                       A.          Brinson suffered no injury from the trial court’s failure to make
                                   factual findings .............................................................................................29

                       B.          Hooper segregated fees unless legal services advanced both
                                   recoverable and unrecoverable claims.......................................................31

Prayer .................................................................................................................................................35


                                                                                 ii
Certificate of Compliance.................................................................................................................36

Certificate of Service .........................................................................................................................36

Appendix ............................................................................................................................................37




                                                                               iii
                                                   Table of Authorities

                                                                                                                               Page(s)
CASES

7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc.,
   245 S.W.3d 488 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) ......................32
A&L Eng’g and Consulting, Inc. v. Shiloh Apollo Plaza, Inc.,
  315 S.W.3d 928 (Tex. App.—Dallas 2010, no pet.).......................................................32
Air Routing Int’l Corp. (Canada) v. Britannia Airways, Ltd.,
   150 S.W.3d 682 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ............................12
Alcatel USA, Inc. v. Cisco Systems, Inc.,
   239 F.Supp.2d 660 (E.D. Tex. 2002) ..........................................................................21, 28
Arrow Marble, LLC v. Killion,
   No. 01-12-01133-CV, 441 S.W.3d 702 (Tex. App.—Houston [1st Dist.]
   2014, no pet.)...................................................................................................................14, 16
Healthcare Grp., Ltd. v. McShane,
   239 S.W.3d 231 (Tex. 2007) .........................................................................................10, 23
BBP Sub I LP v. Di Tucci,
  No. 05-12-01523-CV, 2014 WL 3743669 at *4 (Tex. App.—Dallas July 29,
  2014, no pet.).........................................................................................................................14
Bostrom Seating, Inc. v. Crane Carrier Co.,
   140 S.W.3d 681 (Tex. 2004) ...............................................................................................10
Bowie Mem’l Hosp. v. Wright,
   79 S.W.3d 48 (Tex. 2002) ....................................................................................................23
Brown v. Kleerekoper,
   No. 01-11-00972-CV, 2013 WL 816393, at *12-14 (Tex. App.—Houston
   [1st Dist.] March 5, 2013, pet denied) ...............................................................................16
City of Keller v. Wilson,
    168 S.W.3d 802 (Tex. 2005) ...............................................................................................10
Cricket Communications, Inc. v. Trillium Indus., Inc.,
   235 S.W.3d 298 (Tex. App.—Dallas 2007, no pet.).......................................................13


                                                                         iv
Edlund v. Bounds,
   842 S.W.2d 719 (Tex. App.—Dallas 1992, writ denied) ...............................................11
El Apple I, Ltd. v. Olivas,
   370 S.W.3d 757 (Tex. 2012) ...............................................................................................10
Epps v. Fowler,
  351 S.W.3d 862 (Tex. 2011) ...................................................................................12, 14, 15
ERI Consulting Eng’rs, Inc. v. Swinnea,
  318 S.W.3d 867 (Tex. 2010) ...............................................................................................25
Formosa Plastics Corp. v. Presidio Eng’rs and Contractors,
   960 S.W.2d 41 (Tex. 1998)..................................................................................................25
Gee v. Liberty Mut. Fire Ins. Co.,
   765 S.W.2d 394 (Tex. 1989) ...............................................................................................24
Gharda USA, Inc. v. Control Solutions, Inc.,
  464 S.W.3d 338 (Tex. 2015) ...............................................................................................26
Glattly v. Air Starter Components, Inc.,
   332 S.W.3d 620, 641 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) ................21
Hawkins v. Walker,
  233 S.W.3d 380 (Tex. App.—Fort Worth 2007, no pet.) .............................................22
Holland v. Wal-Mart Stores, Inc.,
   1 S.W.3d 91 (Tex. 1999) ................................................................................................10, 11
Holt Atherton Indus., Inc. v. Heine,
   835 S.W.2d 80 (Tex. 1992)..................................................................................................25
Intercontinental Group Partnership v. KB Home Lone Star L.P.,
    295 S.W.3d 650 (Tex. 2009) ...............................................................................................21
Interstate Northborough P’ship v. State,
    66 S.W.3d 213 (Tex. 2001)............................................................................................23, 24
Jones v. Frank Kent Motor Co.,
    No. 02-14-00216-CV, 2015 WL 4965798 (Tex. App.—Fort Worth Aug. 20,
    2015, no pet. hist.) ................................................................................................................14




                                                                         v
Kellmann v. Workstation Integrations, Inc.,
    332 S.W.3d 679 (Tex. App.—Houston [14th Dist.] 2010, no pet.) .............................21
King Ranch, Inc. v. Chapman,
   118 S.W.3d 742 (Tex. 2003) ...............................................................................................25
Kroger Tex., Ltd. P’ship v. Suberu,
   216 S.W.3d 788 (Tex. 2006) ...............................................................................................25
Larry F. Smith, Inc. v. The Weber Co., Inc.,
   110 S.W.3d 611 (Tex. App.—Dallas 2003, pet. denied) ...............................................30
Moak v. Huff,
  No. 04-11-00184-CV, 2012 WL 566140 (Tex. App.—San Antonio Feb. 15,
  2012, no pet.)...................................................................................................................12, 15
Morgan v. Compugraphic Corp.,
  675 S.W.2d 729 (Tex. 1984) ...............................................................................................26
Owen Elec. Supply, Inc. v. Brite Day Constr., Inc.,
  821 S.W.2d 283 (Tex. App.—Houston [1st Dist.] 1991, writ denied) .......................31
Owens-Corning Fiberglas Corp. v. Malone,
  972 S.W.2d 35 (Tex. 1998)..................................................................................................23
Peoples v. Genco Fed. Credit Union,
   No. 10-09-00032-CV, 2010 WL 1797266 (Tex. App.—Waco May 5, 2010,
   no pet). (mem. op.)...............................................................................................................12
Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc.,
   29 S.W.3d 74 (Tex. 2000) ....................................................................................................11
Santiago v. Central Mtg. Co.,
   No. 05-14-00552-CV, 2015 WL 1805048 (Tex. App.—Dallas June 16, 2015,
   no pet. h.) .........................................................................................................................29, 31
Southwestern Energy Production Co. v. Berry-Helfand,
   411 S.W.3d 581 (Tex. App.—Tyler 2013, pet. granted)................................................13
Spector, Gadon & Rosen, P.C. v. Sw. Securities, Inc.,
   372 S.W.3d 244 (Tex. App.—Dallas 2012, no pet.).......................................................11
Tony Gullo Motors I, L.P. v. Chapa,
   212 S.W.3d 299 (Tex. 2006) ...............................................................................................31

                                                                           vi
Travel Music of San Antonio, Inc. v. Douglas,
   2002 WL 1058527 (Tex. App.—San Antonio May 29, 2002, pet. denied) ...............13
STATUTES

TEX. CIV. PRAC. & REM. CODE § 134.002(2) ........................................................................19
TEX. CIV. PRAC. & REM. CODE § 134.003(a).........................................................................21
TEX. CIV. PRAC. & REM. CODE § 134.005(a).........................................................................28
TEX. CIV. PRAC. & REM. CODE § 134.005(b) ........................................................................12
Tex. Pen. Code § 31.01(5)(B) ...................................................................................................19
Tex. Pen. Code § 31.01(5)(C) ...................................................................................................19
OTHER AUTHORITIES

TEX. R. APP. P. 44.1(a)(1) ...........................................................................................................23




                                                                       vii
                              Statement of the Case

Nature of the case:      Brinson Benefits, Inc. (“Brinson”) sued its former employee
                         Linda Hooper (“Hooper”) for misappropriation of trade
                         secrets, breach of fiduciary duty, conversion, tortious
                         interference, and violation of the Texas Theft Liability Act.
                         Brinson amended its petition to add another former
                         employee Sean Sendelbach (“Sendelbach”) and a competitor
                         Holmes Murphy & Associates, Inc. (“Holmes Murphy”) on
                         claims of tortious interference and conspiracy.

Course of proceedings:   In July 2012, Brinson obtained a TRO and then a temporary
                         injunction against Hooper to protect its confidential
                         information and to prevent Hooper from contacting certain
                         clients until December 1, 2012, at which time the injunction
                         expired. The parties conducted extensive discovery and
                         filed two sets of summary judgment briefing, which were
                         denied by the trial court. The parties tried the case to a jury
                         in September 2014.

Disposition below:       The trial court granted direct verdict to the defendants on
                         Brinson’s theft of confidential and proprietary information
                         claim. Brinson withdrew its claims for misappropriation of
                         trade secrets and conversion. The jury found Hooper
                         breached her fiduciary duty and committed theft of
                         commissions. The jury awarded Brinson $37,660.01 in
                         actual damages and $500 in statutory damages.

                         The parties agreed to submit their claims for attorneys’ fees
                         under the Texas Theft Liability Act to the trial court. The
                         court entered judgment on November 6, 2014 awarding
                         Brinson damages found by the jury, plus $100,277.90 in
                         attorney’s fees for prevailing on its theft of outside
                         commissions claim. The court also awarded Hooper
                         $388,970.30 in attorneys’ fees, and Sendelbach and Holmes
                         Murphy $372,519.76 in attorney’s fees for successfully
                         defending Brinson’s theft of confidential information claim.




                                             viii
                                  Statement of Issues

          Brinson complains of the trial court’s judgment awarding Hooper attorney’s

fees as the prevailing party on Brinson’s claim for theft of confidential and proprietary

information under the Texas Theft Liability Act. Brinson’s appeal raises the following

issues:

       1.     Was Hooper entitled to her attorney’s fees for successfully defending
herself in two plus years of litigation when the trial court granted directed verdict in
her favor at trial as the prevailing party on Brinson’s theft of confidential information
claim under the Texas Theft Liability Act?
       2.     Did the trial court abuse its discretion in excluding evidence of lost
profit damages regarding Door Control Services, Inc. when (i) neither Brinson,
Hooper or Holmes Murphy had ever secured Door Control Services as a client and
(ii) Brinson never presented any evidence that, but for Hooper’s alleged theft of
confidential information, Door Control Services’ owner (and ultimate decision maker)
would have decided to leave its insurance broker of eight years to use Brinson?
       3.      Did the trial court commit reversible error in failing to issue findings of
fact and conclusions of law regarding its award of attorney’s fees to Hooper when (i)
the only ground to recover those fees was under the theft claim, (ii) the trial court
stated in its judgment that the fees were reasonable and necessary, and (iii) Brinson
has not shown that it was injured by the error?
       4.    Did the trial court abuse its discretion in awarding Hooper her attorney’s
fees for defending Brinson’s theft of confidential information claim when the
evidence showed that (i) the fees were reasonable and necessary, (ii) the time
associated with the fees advanced Hooper’s defense as to all the claims seeking lost
profit damages, and (iii) the fees were segregated from the fees associated with
Brinson’s claim for outside commissions and Hooper’s counterclaim for breach of
contract?




                                               ix
                                 Statement of Facts

Brinson hires Hooper

      Brinson is an insurance agency owned by Dawn Brinson that provides

employee benefits advisory services, insurance brokerage, insurance advice, and

insurance program management. (16 RR 86-87). On or about May 2006, Brinson

hired Hooper as an insurance broker (or producer). (14 RR 79; 15 RR 93; 16 RR 88).

      Brinson allowed Hooper to choose which clients she wanted to bring to

Brinson when she started. (15 RR 90-97). Brinson also allowed Hooper to work out

of the office and on her personal laptop – which she did over the next six years. (15

RR 100-101). Hooper did not have a non-compete or non-solicit agreement with

Brinson. (14 RR 96). Brinson paid Hooper straight commission based only on the

clients that she developed and brought to Brinson. (14 RR 86, 15 RR 98-100).

      Hooper brought her larger clients with her to Brinson but chose not to run two

smaller clients through Brinson. (15 RR 97-98). Hooper received commissions

directly from the carrier on these two clients and certain individuals. (15 RR 90-91; 14

RR 99).

Hooper wants a life change

      In October 2011, Hooper lost her husband to a tragic accident. (15 RR 102-

103). Hooper decided to make a life change and pursue other employment options

that would allow her to not work as much as she was at Brinson. (15 RR 103-105).

Thus, in March 2012, she reached out to and met with her friend and former Brinson

                                              1
colleague Sendelbach who was working at Holmes Murphy (another insurance

agency). (15 RR 110-111).

      In May 2012, Brinson informed Hooper that it was pulling her “get out of jail

free card” and that she needed to start producing again. (14 RR 162; 15 RR 111; Pl’s.

Ex. 15). Around that same time, Hooper asked Dawn Brinson for an alternative

employment option that allowed her to cut back at work and provided her a residual

compensation from her clients if she decided to retire. (15 RR 109-110). Dawn

Brinson promised to deliver Hooper such a plan. (15 RR 110).

Door Control seeks fully funded insurance quotes

      In late May, early June 2012, David Evans, the HR Director for Door Control

Services, Inc. (“Door Control”) – a prospective client, reached out to Hooper

regarding quotes for fully-funded health insurance (as opposed to self-insured). (14

RR 136, 138; 15 RR 114). Mr. Evans, who had only been with Door Control for a

couple of months, told Hooper that he did not expect Door Control would leave its

current broker of eight years and that the likelihood of a change was small because the

current broker and owner were good friends. (17 RR 97).

      Nevertheless, Mr. Evans provided Hooper with the necessary private health

information regarding Door Control’s employees to allow Hooper to seek health

insurance quotes from the carriers. (14 RR 140-143).

      On June 29, 2012, Hooper met with Mr. Evans, the CFO and the COO

regarding Door Control’s health insurance. (14 RR 150-151). However, Hooper had

                                              2
no fully-funded health insurance options to provide because the carriers pulled the

quotes prior to the meeting. (15 RR 122-123; 17 RR 93).

Hooper receives an alternative employment option

        On July 2, 2012, Hooper received an email from Holmes Murphy offering an

independent contractor relationship that allowed Hooper to cut back on working and

to receive a commission on any clients referred to Holmes Murphy. (15 RR 120-121).

        That same day, Hooper met with Dawn Brinson to discuss alternative

employment options. (15 RR 17-18; 122). Ms. Brinson provided Hooper with an

employment agreement containing a non-compete and a residual compensation plan

broken down into different categories. (15 RR 123-125; Dfs.’ Ex. 36). Ms. Brinson,

however, could not tell Hooper which category she would fit into and Brinson had

the ability to unilaterally change the plan at any time. (15 RR 124-125).

        At that meeting, Hooper informed Ms. Brinson that she was working on Door

Control but that the carriers had pulled the fully-funded insurance quotes and thus

there was nothing to present. (15 RR 122-123).

        After the meeting, Hooper decided for sure she was leaving Brinson. (15 RR

126).

Hooper resigns and Door Control decides to explore self-funded quotes

        On July 3, 2012, at roughly 9:00 a.m., Hooper resigned from Brinson. (15 RR

126).

        On July 5, 2012, David Evans of Door Control emailed Hooper seeking self-

                                               3
insured health insurance options instead of fully-funded ones. (15 RR 136; Pl’s Ex.

26A). That same day, Door Control gave Hooper a letter of authorization to obtain

its private health information regarding its employees. (17 RR 102-103, Pl’s Ex. 26B).

Door Control remains with current broker

      Door Control, however, remained with its current broker of eight years. (17

RR 95). Hooper never met Door Control’s owner and ultimate decision maker

regarding any health insurance options. (15 RR 114; 17 RR 108).

The Lawsuit

      On July 9, 2012, Brinson sued Hooper for misappropriation of trade secrets

and breach of fiduciary duty, among other claims, and obtained a TRO alleging that

Hooper misappropriated Brinson’s “trade secrets and confidential/proprietary

information.” (1 CR 15-29). Brinson’s theft claim under the TTLA asserted the

following:

      Defendant’s conduct constitutes theft of Brinson Benefits’ proprietary
      and confidential information and property. Defendant unlawfully took
      Brinson Benefits’ proprietary and confidential information and property
      with the intent to deprive Brinson Benefits of it. Brinson Benefits has
      formally demanded that Defendant return the confidential information
      and property, but to no avail. As a result, Brinson Benefits has suffered
      injury.
(1 CR 25).

      Brinson requested and obtained a temporary injunction until December 1, 2012

enjoining Hooper from using or disclosing Brinson’s alleged confidential, proprietary,

and/or trade secret information and from contacting certain clients. (1 CR 53-61). At


                                              4
the hearing, Brinson’s counsel stated:

      What we are asking the Court to do today, Your Honor, is to enjoin Ms.
      Hooper from using Brinson Benefits’ confidential and proprietary
      information or their trade secrets that she possessed and took with her
      after she left the company. Particularly, Your Honor, the client data
      sheets.
(3 RR 24).

      On August 27, 2012, Brinson filed its amended petition wherein it alleged for

the first time in passing that Hooper serviced clients for her own benefit and received

commissions outside the company. (1 CR 168). However, Brinson’s theft claim

under the TTLA did not change – it still concerned confidential and proprietary

information. (1 CR 173).

      On October 17, 2012, Brinson filed its motion for continuance and extension

of the temporary injunction. (1 CR 372-379). Brinson asked the trial court “to extend

the Temporary Injunction because it is apparent that Defendants have used, and will

continue using, Plaintiff’s trade secret/confidential/proprietary information in their

attempts to usurp Plaintiff’s clients.” (1 CR 372). The trial court denied Brinson’s

motion.

      In October 2012 and again in December 2013, the parties filed summary

judgment briefing that overwhelmingly discussed and argued the alleged

misappropriation of confidential/proprietary and trade secret information and

whether there was ever any intent to deprive, any use or disclosure, or any causation

and damages resulting therefrom. (1 CR 651, 850, 1693; 2 CR 2260, 2445; 3 CR


                                              5
2687). The trial court denied those motions. (1 CR 1768, 1901; 11 RR 64).

       On December 20, 2013, Brinson filed its fifth amended petition and its theft

claim remained the same from the beginning – theft of Brinson’s proprietary and

confidential information and property. (3 CR 2775).

       Hooper filed a counterclaim for attorney’s fees under the Texas Theft Liability

Act. (2 CR 1964).

Pre-trial and Trial

       On December 26, 2013, Hooper filed a motion to strike Dawn Brinson as an

expert on lost business calculation and valuations extending into the future (allegedly

resulting from misappropriation of confidential and trade secret information). (3 CR

2887). The trial court agreed that Dawn Brinson was not an expert on future lost

profits. (12 RR 11).

       In September 2014, the parties tried the case to a jury. After the parties rested

their case, the trial court granted Hooper’s motion for directed verdict on Brinson’s

theft claim concerning confidential and proprietary information. (17 RR 249). The

trial court, however, suggested to Brinson and allowed Brinson to submit a separate

claim for theft of outside commissions over Hooper’s objection that it was never pled

as a theft claim. Id.

       Brinson withdrew its misappropriation of trade secrets and conversion claims.

(18 RR 4-5, 19-20).

       On September 10, 2014, the jury entered its verdict and awarded Brinson

                                              6
roughly $31,000 for its theft claim concerning outside commissions. (4 CR 4327).

However, Hooper prevailed on Brinson’s theft claim concerning confidential and

proprietary information whereby Brinson sought hundreds of thousands of dollars in

damages against Hooper.

Post-Trial

      After trial, the parties agreed to submit the determination of attorney’s fees to

the trial court for decision. (4 CR 4349). On November 6, 2014, the trial court

entered judgment and awarded Hooper, Sendelbach and Holmes Murphy reasonable

and necessary attorney’s fees for successfully defending Brinson’s theft of confidential

information claim. (Appendix 1). The trial court also awarded Brinson, in addition to

the jury award, its attorney’s fees in successfully prosecuting it theft of outside

commissions claim. Id.




                                              7
                             Summary of the Argument

      This is an attorney’s fees case arising under the Texas Theft Liability Act

(“TTLA”). As relevant here, Brinson sued Hooper for theft of confidential and

proprietary information under the TTLA. Brinson claimed that the alleged theft of its

trade secrets somehow caused it to lose a prospect known as Door Control and thus

Brinson sought hundreds of thousands of dollars in lost profit damages. Because

there was absolutely no evidence of causation (i.e. that Brinson would have secured

Door Control as a client), the trial court excluded any evidence associated with Door

Control and eventually granted Hooper directed verdict on the theft claim at trial after

both sides rested.

      Hooper successfully defended Brinson’s theft of confidential information claim

in over two years of litigation whereby Brinson relentlessly pursued the unfounded

belief that it lost over $650,000.00 in lost profits. Thus, pursuant to the TTLA,

Hooper is entitled to recover her attorney’s fees as the prevailing party. Even though

Brinson won on the separate theft claim concerning outside commissions, it

unquestionably lost on the theft claim concerning confidential information. Brinson

did not suffer actual damages resulting from the alleged theft of confidential

information and thus was not the prevailing party.

      Brinson’s alleged damages for not securing Door Control as a client was

speculative and resulted in no evidence. Brinson offered no evidence whatsoever that

Door Control’s owner and final decision maker would have decided to leave Door

                                              8
Control’s insurance broker of eight years and move to Brinson but for Hooper’s

alleged theft of confidential information.    Because of this, and because Brinson

offered no expert testimony regarding lost profit damages based on reliable data, the

trial court properly excluded the evidence.

      The trial court awarded Hooper her attorney’s fees under the TTLA for

successfully defending the theft of confidential information claim. The trial court,

however, failed to issue findings of fact and conclusions of law on the attorney’s fees.

Nevertheless, Brinson has not shown that it was injured by the trial court’s failure. In

fact, Brinson is not injured because no one has to guess why the trial court awarded

fees to Hooper. There was only one ground for recovery of attorney’s fees and that

was under the TTLA, as outlined in Hooper’s post-trial motion for attorney’s fees.

Moreover, the trial court specifically stated that based on the directed verdict and his

review and consideration of the motion for attorney’s fees, he awarded “reasonable

and necessary attorneys’ fees” to Hooper. Thus, the trial court found and concluded

that $388,970.30 in attorney’s fees were reasonable and necessary.

      Hooper properly segregated recoverable fees from fees associated with

defending Brinson’s theft of outside commissions claim and prosecuting her breach

of contract counterclaim. The remaining fees were so intertwined that they could not

be segregated because they related to defending against Brinson’s overarching

allegation that it had confidential and trade secret information and that taking that

information somehow caused it to lose almost a million dollars in lost profit damage.

                                              9
Hooper’s attorney’s fees were incurred defending these allegations and thus advanced

both recoverable and unrecoverable claims.

       Hooper asks this court to affirm the trial court’s final judgment.

                                        Argument

I.     Standard of Review.
       The availability of attorney’s fees under a particular statute is a question of law

for the court that is reviewed de novo. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94

(Tex. 1999). An appellate court reviews a trial court’s decision to award attorney’s

fees for an abuse of discretion. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex.

2012). The court also reviews whether the trial court properly excluded evidence

under an abuse of discretion standard. Bay Area Healthcare Grp., Ltd. v. McShane, 239

S.W.3d 231, 234 (Tex. 2007).

       In reviewing the grant of a directed verdict, an appellate court follows the

standards for assessing the legal sufficiency of the evidence. City of Keller v. Wilson, 168

S.W.3d 802, 809-828 (Tex. 2005). When reviewing a directed verdict, an appellate

court must credit the favorable evidence if reasonable jurors could and disregard the

contrary evidence unless reasonable jurors could not. Id. at 827. An appellate court

must determine whether there is any evidence of probative force to raise a fact issue

on the question presented. See Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681,

684 (Tex. 2004).

       A directed verdict is warranted when the evidence is such that no other verdict


                                                10
can be rendered and the moving party is entitled, as a matter of law, to a judgment.

Edlund v. Bounds, 842 S.W.2d 719, 724 (Tex. App.—Dallas 1992, writ denied). A trial

court may order a directed verdict in favor of a defendant when: (1) a plaintiff fails to

present evidence raising a fact issue essential to the plaintiff’s right of recovery; or (2)

the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff’s

cause of action. See Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77

(Tex. 2000). A trial court may properly direct a verdict if no evidence of probative

force raises a fact issue on the material questions in the lawsuit. Id.

       With the above standard of review as the setting, Hooper addresses Brinson’s

arguments in the order that they were presented to this Court. Brinson’s appeal

concerns the following general issues: (1) whether Hooper is entitled to her attorney’s

fees as the prevailing party under the TTLA and (2) whether the trial court awarded

Hooper a proper amount of attorney’s fees.

II.    Hooper Prevailed on the Theft of Confidential Information Claim.
       Brinson argues that the trial court erred by awarding Hooper attorney’s fees

pursuant to section 134.005(b) of the TTLA because Hooper was not a “person who

prevail[ed]” under the statute. Whether a party is entitled to recover attorney’s fees

under a particular statute is a question of law. Holland, 1 S.W.3d at 94. Thus, this

court reviews the issue de novo. Spector, Gadon & Rosen, P.C. v. Sw. Securities, Inc., 372

S.W.3d 244, 248 (Tex. App.—Dallas 2012, no pet.).              As shown below, Hooper

prevailed in successfully defending Brinson’s theft of confidential information claim


                                                11
and is thus entitled to her attorney’s fees in defending that claim.

      A.     A defendant that successfully defends a TTLA claim is
             entitled to attorney’s fees.
      The TTLA provides that “[e]ach person who prevails in a suit under this

chapter shall be awarded court costs and reasonable and necessary attorney’s fees.”

TEX. CIV. PRAC. & REM. CODE § 134.005(b). The award of fees to a prevailing party

in a TTLA action is mandatory.         Moak v. Huff, No. 04-11-00184-CV, 2012 WL

566140, at *11 (Tex. App.—San Antonio Feb. 15, 2012, no pet.). A defendant who

successfully defends a TTLA suit is entitled to recover his fees. See Air Routing Int’l

Corp. (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 684 (Tex. App.—Houston

[14th Dist.] 2004, no pet.); Peoples v. Genco Fed. Credit Union, No. 10-09-00032-CV,

2010 WL 1797266, at *7 (Tex. App.—Waco May 5, 2010, no pet). (mem. op.). A

prevailing defendant is entitled to attorney’s fees “without any prerequisite that the

claim is found to be groundless, frivolous, or brought in bad faith.” Air Routing Int’l

Corp., 150 S.W.3d at 686.

      The phrase “person who prevails,” as used in section 134.005(b) of the TTLA,

is not defined in the TTLA, and no other provision of the Act sheds light on the

meaning of the phrase. See TEX. CIV. PRAC. & REM. CODE § 134.005(b). Courts have

looked to the term “prevails” ordinary meaning to determine its scope for both

statutory and contractual claims. See e.g., Epps v. Fowler, 351 S.W.3d 862, 866 (Tex.

2011) (construing written contract to give meaning to undefined term “prevailed”



                                               12
while noting the phrase “prevailing party” is given its ordinary meaning and has been

explicated through statutory interpretation by many courts).

       Brinson’s position is that Hooper cannot be a prevailing party until the case is

fully litigated on the merits and she establishes that she did not commit theft.

(Brinson’s Br., pp. 20, 23). Brinson relies on an unreported San Antonio court of

appeals’ opinion wherein the plaintiff dismissed its TTLA claim without prejudice

nine months before trial. See Travel Music of San Antonio, Inc. v. Douglas, 2002 WL

1058527 at *3 (Tex. App.—San Antonio May 29, 2002, pet. denied). The court in that

case reversed the trial court’s award of attorney’s fees to the defendants because the

case was not fully litigated. Id.; see also Cricket Communications, Inc. v. Trillium Indus., Inc.,

235 S.W.3d 298, 310-311 (Tex. App.—Dallas 2007, no pet.) (plaintiff nonsuited

TTLA claim without prejudice and defendants did not plead for attorney’s fees under

the TTLA).

       Here, Brinson prosecuted its theft of confidential information claim all the way

through trial and the trial court granted directed verdict in favor of Hooper on that

claim after both sides rested. The theft of confidential information claim was fully

litigated and Hooper prevailed by successfully defending the claim. See Southwestern

Energy Production Co. v. Berry-Helfand, 411 S.W.3d 581, 614 (Tex. App.—Tyler 2013, pet.

granted) (appellate court reversed the jury’s finding in favor of the plaintiff on the

theft claim due to no evidence and remanded the case to the trial court for the

determination and award of attorney’s fees to the defendant as the prevailing party

                                                   13
under the TTLA); see also Jones v. Frank Kent Motor Co., No. 02-14-00216-CV, 2015 WL

4965798 at *3 (Tex. App.—Fort Worth Aug. 20, 2015, no pet. hist.) (counter-

defendant successfully defended against counter-plaintiff’s theft claim and was

therefore the prevailing party).

      Regardless, other cases show that the TTLA claim does not have to be fully

litigated, nor does the defendant have to establish that she did not commit theft. For

example, in BBP Sub I LP v. Di Tucci, this Court affirmed the trial court’s award of

attorney’s fees to the defendant as the prevailing party even though the plaintiff

nonsuited its TTLA claim without prejudice.         No. 05-12-01523-CV, 2014 WL

3743669 at *4 (Tex. App.—Dallas July 29, 2014, no pet.) (mem. op.). This Court

relied on Epps, 351 S.W.3d at 869 in holding that a defendant is entitled to attorney’s

fees under the TTLA as a “person who prevails” after a plaintiff voluntarily nonsuits

without prejudice, if the trial court determines that the nonsuit was taken to avoid an

unfavorable ruling on the merits. Di Tucci, 2014 WL 3743669 at *4. In Di Tucci, the

record reflected that the plaintiff voluntarily dismissed the TTLA claim to avoid an

unfavorable judgment on the merits. Id.

      Further, a TTLA claim dismissed with prejudice for want of prosecution

permits the defendant to qualify as a prevailing party under the TTLA statute. See

Arrow Marble, LLC v. Killion, No. 01-12-01133-CV, 441 S.W.3d 702, 708 (Tex. App.—

Houston [1st Dist.] 2014, no pet.). In Arrow Marble, the court determined that res

judicata attaches to a dismissal with prejudice even though the plaintiff’s claims have

                                             14
not been fully litigated at trial. Id. at 707. Thus, the legal relationship between a

plaintiff and defendant changes because res judicata prohibits the plaintiff from re-

asserting his claims against that defendant in a later suit. Id.; see also Epps, 351 S.W.3d

at 867.

      Here, Brinson’s theft of confidential information claim was dismissed on

directed verdict after it was fully litigated. Such a ruling altered the parties’ legal

relationship to Hooper’s benefit. Hooper can never again be sued by Brinson for

theft of confidential information. Thus, Hooper prevailed on that claim.

      Brinson also argues that since Hooper did not prevail on the entire suit, she

should not be entitled to attorney’s fees under the TTLA as the prevailing party.

(Brinson’s Br., p. 18-19). Brinson’s assertion is wrong. In Moak v. Huff, the defendant

lost on the plaintiff’s DTPA claim but successfully defended against the plaintiff’s

TTLA claim. 2012 WL 566140, at *1. The defendant sought an award of attorney’s

fees under the TTLA. Id., at *9. The plaintiff resisted, arguing that a person does not

“prevail in a suit” unless he is the “party in whose favor a judgment is rendered” and

is “vindicated by the judgment.” Id., at *10. The plaintiff maintained that the

defendant had to prevail on the entire suit to recover attorney’s fees under the TTLA.

Id.

      The court of appeals disagreed, holding that “a person who prevails in a TTLA

cause of action is entitled to recover the reasonable fees necessarily incurred

prosecuting or defending the cause of action, even if the party is unsuccessful on

                                               15
other claims and counterclaims litigated in the same suit.” Id., at *11; see also Arrow

Marble, LLC, 2014 WL 2958278, at *3-4 (defendant was prevailing party on theft

claim dismissed with prejudice even though it failed to obtain judgment on its breach

of contract claim).

      Moreover, in Brown v. Kleerekoper, the defendant was considered the prevailing

party under the TTLA when she prevailed on one TTLA claim, lost on another TTLA

claim, and lost on a breach of contract claim.       No. 01-11-00972-CV, 2013 WL

816393, at *12-14 (Tex. App.—Houston [1st Dist.] March 5, 2013, pet denied). In that

case, the plaintiff argued that by successfully prosecuting two claims out of three, he

prevailed on the main issue, even though not to the extent of his original contention.

Id. at *12. The court of appeals rejected the plaintiff’s argument and stated “[w]e

agree with the San Antonio court that a party who prevails on a TTLA cause of action

is entitled to recover attorney’s fees, even though that party may not have prevailed

on other causes of action asserted in the suit.” Id. at *14. Thus, the court of appeals

upheld the award of attorney’s fees to the defendant for successfully defending herself

on the theft of property claim under the TTLA. Id.

      The trial court granted Hooper a directed verdict on Brinson’s theft of

confidential and proprietary information claim. Hooper, not Brinson, prevailed on

that particular claim, as discussed further below.




                                               16
      B.     Brinson did not prevail on the theft of confidential
             information claim.
      Brinson argues that it actually prevailed on the TTLA claim because (1) it

asserted only one theft claim for which the jury returned a verdict in its favor or (2) it

received some relief on the merits of its theft of confidential information claim

through the temporary injunction. (Brinson’s Br. pp. 21-25). Brinson’s arguments fail

for the reasons stated below.

             1.     The trial court allowed Brinson to submit a separate theft claim
                    to the jury.

      Brinson alleges that it asserted only one TTLA claim and that it prevailed on

that claim. (Brinson’s Br. pp. 21-22). The fact of the matter is that Brinson pled only

one TTLA claim – theft of confidential and proprietary information and property –

and it was dismissed on directed verdict in favor of Hooper as the prevailing party.

(17 RR 249). The trial court, however, allowed Brinson to submit to the jury a

separate TTLA claim for theft of outside commissions. Id. Hooper objected to the

newly created TTLA claim, but the court overruled the objection. (18 RR 14-15).

Hooper does not appeal the court’s ruling on her objection. Thus, there ended up

being two separate theft claims, one for theft of confidential and proprietary

information and property (i.e. trade secrets) and another for theft of outside

commissions (i.e. money received by Hooper directly from carriers).              Hooper

prevailed on the first one, and Brinson prevailed on the second one. The first one –

theft of confidential information – is at issue in this appeal in determining whether


                                               17
Hooper is entitled to her attorney’s fees for successfully defending the claim.

      Brinson tries to confuse this Court by merging the later created TTLA claim

concerning outside commissions into its originally pled TTLA claim concerning

confidential information. Brinson’s original petition only asserted a TTLA claim for

theft of “proprietary and confidential information and property.” (1 CR 25). At that

point, outside commissions was not even an issue in the case. Instead, the case

concerned the alleged misappropriation and theft of trade secrets and confidential

information regarding Brinson’s clients, vendors, and data. (1 CR 15-29). Brinson

sought and obtained temporary injunctive relief on the allegation that Hooper

misappropriated “confidential, proprietary and/or trade secret information.” (1 CR

26, 53-61, 97-101).

      It was not until Brinson’s first amended petition that it alleged for the first time

in passing in the facts section that Hooper serviced clients for her own benefit and

received commissions outside the company. (1 CR 168). However, Brinson’s theft

claim never changed, it was always theft of “proprietary and confidential information

and property.” (1 CR 173, 428, 1915; 2 CR 2179; 3 CR 2775).

      At trial (and throughout the case), Brinson testified to the confidential and

trade secret nature of its information (i.e. client data and hot sheets) and how Hooper

allegedly stole the information through a “bulk update” from Brinson’s server to her

laptop before she resigned. (16 RR 129-132, 150-172, 295-297; see also 15 RR 60-61,

75). When the trial court asked Brinson’s counsel what property do you contend

                                              18
Brinson was deprived of in regards to its theft claim, Brinson’s counsel answered “it is

the bulk update of the data would be the property, and that data included the Pinnacle

data.” (17 RR 248). In fact, Brinson’s proposed jury charge concerning damages for

theft did not ask for disgorgement of the outside commissions. (4 CR 4130-4131).

      The TTLA claim had nothing to do with outside commissions, and instead

concerned only confidential and proprietary information. It was not until both sides

rested and the trial court granted Hooper directed verdict on the theft of confidential

and proprietary information claim that a new and separate claim for theft of outside

commissions was allowed by the court. (17 RR 249). The new theft claim came in

and was submitted to the jury over Hooper’s objection. (18 RR 14-16). Thus, the

case ended up with two different theft claims.

      Brinson argues that the claims are one in the same.           However, theft of

proprietary and confidential information is completely different than theft of outside

commissions (or money). The theft of confidential information is identified under

Tex. Pen. Code § 31.01(5)(B) and the theft of outside commissions is identified under

Tex. Pen. Code § 31.01(5)(C). See TEX. CIV. PRAC. & REM. CODE § 134.002(2).

      Further, the two theft claims involved different sets of facts. Brinson’s theft of

confidential information claim involved proving (i) the trade secret nature of its client

data and hot sheets and other client information, (ii) that the information was part of

the alleged “bulk update” from Brinson’s server, (iii) that Brinson was deprived of its

information, and (iv) that the alleged theft of the information caused it to lose clients

                                              19
(or a prospect) resulting in lost profits damages.       Brinson’s theft of outside

commissions claim, on the other hand, involved commissions (or money) that

Hooper received directly from the carrier on other clients she personally serviced,

without running those commissions through Brinson, and that Brinson sought to

disgorge.

      Moreover, the two theft claims involved different measure of damages.

Brinson’s damage model sought $658,616.00 in lost profits for theft and

misappropriation of confidential information, whereas it sought $82,882.69 in

disgorgement for outside commissions. (3 CR 2911; 4 CR 4369-4370). At trial,

Brinson sought $306,596.71 in lost profits for its theft and misappropriation of

confidential information claims (16 RR 318-327) compared to $79,882.69 in

disgorgement for outside commissions (16 RR 227-231). The lost profits calculation

allegedly dealt with historical data and retention rates of clients to determine the

damage number associated with losing clients and a prospect (i.e. Door Control). (16

RR 318-327). The disgorgement calculation simply dealt with the return of money

Hooper received directly from servicing other clients. (16 RR 227-231).

      The two TTLA claims are completely different – they were asserted at different

times, involved different facts and sought different measures of damages.

             2.    Brinson did not prevail on the TTLA claim concerning
                   confidential and proprietary information.

      Brinson next argues that it prevailed on the theft of confidential information



                                             20
claim because it received some relief through the temporary injunction. (Brinson’s Br.

pp. 23-25). Brinson, however, refuses to acknowledge that it suffered a dismissal of

its theft of confidential information claim at trial on directed verdict and thus received

nothing by way of damages. Thus, Brinson did not prevail on that claim – Hooper

did.

       The TTLA provides that a person “who commits theft is liable for the damages

resulting from the theft.” TEX. CIV. PRAC. & REM. CODE § 134.003(a). In addition,

under the TTLA a person “who has sustained damages” may recover the amount of

actual damages found by the trier of fact. Id. § 134.005(a)(1). In Glattly v. Air Starter

Components, Inc., the court held that the plaintiff was not a prevailing party because the

jury found no damages for the violations of the TTLA. 332 S.W.3d 620, 641 (Tex.

App.—Houston [1st Dist.] 2010, pet. denied); see also Intercontinental Group Partnership v.

KB Home Lone Star L.P., 295 S.W.3d 650, 654-55 (Tex. 2009) (a party does not prevail

on a breach of contract claim when the jury finds a breach of contract but answers

“0” for damages); Kellmann v. Workstation Integrations, Inc., 332 S.W.3d 679, 686 (Tex.

App.—Houston [14th Dist.] 2010, no pet.) (holding that no damages precluded an

award of attorney’s fees because plaintiff was not a prevailing party); Alcatel USA, Inc.

v. Cisco Systems, Inc., 239 F.Supp.2d 660, 676 (E.D. Tex. 2002) (when no damages in

any form are recoverable, the plaintiff is not a prevailing party).

       Also, the Glattly court noted in response to the plaintiff’s argument that it was

the prevailing party because it received injunctive relief, that the TTLA does not

                                                21
authorize injunctive relief. Glattly, 332 S.W.3d at 641. The court went on to state that

the only relief provided for by the TTLA is actual damages and that is the only relief

the plaintiff requested from the jury, which the jury denied by finding “0” for actual

damages. Id.; see also Hawkins v. Walker, 233 S.W.3d 380, 400 & n. 73 (Tex. App.—

Fort Worth 2007, no pet.) (stating, “[C]ourts have construed this phrase [‘prevailing

party’] to mean that the party must recover at least some of the relief sought by its

claim.”).

       Brinson did not seek injunctive relief at trial.      Brinson sought lost profit

damages on its theft of confidential information claim, and it lost. Brinson cannot

claim prevailing party status through a temporary injunction whereby the court

concluded that Brinson “will likely succeed” on the merits of its claims at trial

concerning misappropriation of trade secrets. (1 CR 97). As we know now, Brinson

did not succeed on its theft of confidential information claim. Moreover, Brinson

withdrew its claims for misappropriation of trade secrets and conversion. The TTLA

provides relief for only actual damages and Brinson sought only actual damages in the

form of lost profits on its theft of confidential information claim at trial and it lost on

directed verdict. Brinson had two years to form a logical damage model supported by

competent evidence and it never did. Thus, Hooper successfully defended the theft

of confidential information claim and is the prevailing party on that claim.




                                               22
         C.    The trial court did not commit reversible error in excluding
               damages for theft of confidential information.
         Brinson argues that the trial court erred in excluding damages for the alleged

theft of confidential information related to Door Control because (1) there was some

evidence that Brinson “could have secured” Door Control as a client and thus obtain

lost profit damages or (2) there was some evidence of alternative measure of damages

beyond lost profits. (Brinson’s Br., pp. 25-34). Brinson’s arguments, however, fail

because there was no competent evidence that, but for Hooper’s alleged theft,

Brinson would have secured Door Control as a client. Aside from the speculation

that Brinson could have obtained Door Control as a client, there was also substantial

uncertainty as to the amount of damages Brinson actually suffered. Thus, the trial

court properly excluded any damages regarding Door Control.

         The decision to admit or exclude evidence lies within the trial court’s sound

discretion. Bay Area Healthcare Grp., Ltd., 239 S.W.3d at 234. A trial court abuses its

discretion if it acts in an arbitrary or unreasonable manner or without reference to

guiding rules or principles. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.

2002). An appellate court must sustain the trial court’s ruling if there is any legitimate

basis for the ruling. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.

1998).

         To obtain reversal of a judgment based on the trial court’s error in excluding or

admitting evidence, the complaining party must show that the error probably resulted



                                                23
in an improper judgment. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220

(Tex. 2001); TEX. R. APP. P. 44.1(a)(1). An appellate court must review the entire

record to determine whether the excluded evidence resulted in the rendition of an

improper judgment. Interstate Northborough P’ship, 66 S.W.3d at 220. The trial court’s

error in the exclusion of evidence generally will not be reversible unless the excluded

proof is “controlling on a material issue.” Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d

394, 396 (Tex. 1989).

      Here, the trial court had a legitimate basis for excluding evidence regarding

damages for Door Control because the fact of the matter is Brinson was never going

to secure Door Control as a client once Hooper left. (15 RR 6-7; 17 RR 150). Even

if there was any evidence that Brinson could have obtained Door Control as a client

(which there was not), Brinson’s alleged damages for lost profits were too speculative

and not based on expert opinion.

             1.     Brinson’s lost profits damages regarding Door Control were too
                    speculative.

      Brinson sought lost profit damages related to Door Control on its claims,

including theft of confidential information. (4 CR 4369). The trial court, however,

excluded evidence of damages concerning Door Control because it was an undisputed

fact that Door Control never moved its business from its broker of eight years to

Brinson, Hooper or Holmes Murphy. (12 RR 12; 16 RR 327-328). Moreover, the

trial court struck Dawn Brinson as an expert on lost profit damages because she did



                                              24
not have the expertise or training to calculate future lost profits. (12 RR 11; 16 RR

321-322). The trial court acted within his discretion in excluding the evidence of lost

profits damages regarding Door Control and had a legitimate basis for doing so as

discussed below.

       Lost profit estimates or opinions must be based on objective facts, figures, or

data from which the lost profits amount may be ascertained. ERI Consulting Eng’rs,

Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex. 2010). When a review of the surrounding

circumstances establishes that the profits are not reasonably certain, there is no

evidence to support the lost profits.        Formosa Plastics Corp. v. Presidio Eng’rs and

Contractors, 960 S.W.2d 41, 50 n.3 (Tex. 1998). “[T]he bare assertion that contracts

were lost does not demonstrate a reasonably certain objective determination of lost

profits.” Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 85 (Tex. 1992).

       A no-evidence point will be sustained when (a) there is a complete absence of

evidence of a vital fact, (b) the court is barred by rules of law or evidence from giving

weight to the only evidence offered to prove a vital fact, (c) the evidence offered to

prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively

establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742,

751 (Tex. 2003). Evidence that is “‘so weak as to do no more than create a mere

surmise or suspicion’ that the fact exists” is less than a scintilla. Kroger Tex., Ltd. P’ship

v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (quoting Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 601 (Tex. 2004)).

                                                 25
      Brinson’s belief that it could have obtained Door Control as a client even if

Hooper left on good terms was complete speculation and did not rise above surmise

or suspicion. David Evans, Door Control’s HR Director, testified that the company

owner was the ultimate decision maker regarding insurance brokers and no one knows

if the owner would have approved a different insurance broker.           (17 RR 110).

Brinson never deposed Door Control’s owner and thus offered no evidence

whatsoever from the owner as to whether he would have changed brokers to go with

Brinson. There was simply no evidence to establish the causal nexus between the

alleged wrongful act and the alleged damages. See Morgan v. Compugraphic Corp., 675

S.W.2d 729, 732 (Tex. 1984) (the causal nexus between the event sued on and the

plaintiff’s injuries must be shown by competent evidence).

      David Evans testified that the likelihood of Door Control changing brokers

was small and he did not expect that Door Control would leave its current broker.

(17 RR 97). Mr. Evans further stated that he himself had no desire to deal with

anyone at Brinson besides Hooper and once she left he did not want to use Brinson.

(17 RR 100, 107). In fact, after Hooper left, Brinson never even tried to contact Door

Control to earn its business. (17 RR 146). Brinson was never going to secure Door

Control as a client once Hooper left. (16 RR 327-328).

      Furthermore, even if the alleged evidence of Door Control damages was

allowed in the trial, the evidence was insufficient to show any amount of reasonably

certain lost profits, based on objective facts, figures, or data. The trial court struck

                                              26
Dawn Brinson as an expert. (12 RR 11). Thus, there was no expert analysis or

opinion on the alleged lost profits associated with Door Control. See Gharda USA,

Inc. v. Control Solutions, Inc., 464 S.W.3d 338, 348 (Tex. 2015) (proof other than expert

testimony will support a jury finding only when the jurors’ common understanding

and experience will allow them to make that finding with reasonable probability).

      Brinson’s only evidence on lost profits was from Ms. Brinson’s conclusory

testimony that Door Control would have generated revenue of $60,000 a year. (16

RR 323-327). However, that number was based on an assumed estimation from

Hooper. (17 RR 148-149). Brinson did not do any independent work to verify the

reasonableness or reliability of the estimated revenue number, nor did Brinson offer

any other evidence in support of its assumptions regarding the revenue associated

with Door Control.

      Brinson offered no competent evidence to establish with reasonably probability

that it would have secured Door Control as a client. Moreover, Brinson’s evidence on

damages was unreliable and mere speculation. Thus, the trial court did not commit

reversible error in excluding any damages associated with Door Control.

             2.      Brinson did not disclose the alternative measure of damages.

      Brinson argues that it should have been allowed to present alternative measure

of damages attributable to Hooper’s alleged conduct. (Brinson’s Br. pp. 28-34).

Brinson, however, never disclosed its alleged alternative measure of damages prior to

trial and only did so once it realized its lost profit damages were too speculative.


                                              27
Thus, for this reason (and others), the court’s exclusion of the evidence was proper.

      At trial, Brinson tried to submit evidence regarding the alleged value of the

Door Control file by calculating the time Hooper spent on the file. (16 RR 238-239;

17 RR 64, 139-146). The trial court excluded the evidence because (i) it was never

disclosed as a damage model to Hooper or Holmes Murphy and (ii) Brinson did not

pay Hooper for any time spent on the Door Control file – Hooper was only paid a

commission if she secured a client. (17 RR 143-146). As we know, Door Control

never became a client of any party in this case.

      Brinson also tried to submit evidence regarding fees incurred to assess the risk

of a possible HIPPA violation. (16 RR 147, 206-214). The trial court excluded the

evidence because there was no evidence to suggest that there was ever any improper

dissemination of HIPPA information. (16 RR 208, 213-214). Moreover, Brinson

never claimed that there was a HIPPA violation. Also, Brinson never asserted the

alleged fees as a damage model in its disclosures. (16 RR 147; 4 CR 4369-4370).

Thus, the trial court did not abuse its discretion in excluding these alternative

measures of damages.

      Brinson also argues that statutory damages are available under the TTLA, and

thus the jury should have been allowed to consider such damages for the alleged theft

of confidential information. (Brinson’s Brief, p. 29). However, an award of statutory

damages is contingent upon an award of actual damages. See Alcatel USA, Inc. v. Cisco

Systems, Inc., 239 F.Supp.2d 660, 674 (E.D. Tex. 2002) (citing Rodgers v. RAB

                                               28
Investments, Ltd., 816 S.W.2d 543, 551 (Tex. App.—Dallas 1991, no writ)); TEX. CIV.

PRAC. & REM. CODE § 134.005(a). Brinson’s inability to recover actual damages thus

precludes its recovery of statutory damages pursuant to the express language of

section 134.005(a).

       The trial court properly excluded evidence regarding damages related to Door

Control because it was complete speculation that Brinson could have secured Door

Control as a client. There was never any causation evidence to connect the dots

between the alleged theft of confidential information and damages associated with the

belief that Brinson could secure Door Control as a client – which it did not, and never

has.   Accordingly, Hooper prevailed on directed verdict and is entitled to her

attorney’s fees for defending the claim for over 2 years.

III.   The Trial Court Awarded a Proper Amount in Attorney’s Fees.
       Brinson argues that the attorney’s fees awarded to Hooper must be vacated and

remanded because the trial court failed to make factual findings and Hooper allegedly

failed to segregate recoverable from unrecoverable fees.       (Brinson’s Br. p. 39).

Brinson’s arguments are discussed in turn below.

       A.    Brinson suffered no injury from the trial court’s failure to
             make factual findings.
       Brinson contends the trial court erred by failing to file findings of fact and

conclusions of law, despite timely requests to do so. (Brinson’s Br., pp. 39-41).




                                              29
Brinson, however, does not explain how it was injured or prevented from properly

presenting its case to this Court. The trial court’s error was harmless.

       When properly requested, the trial court has a mandatory duty to file findings

of fact and conclusions of law. Santiago v. Central Mtg. Co., No. 05-14-00552-CV, 2015

WL 1805048 at *4 (Tex. App.—Dallas June 16, 2015, no pet. h.) (mem. op.). If the

trial court fails to file findings of fact and conclusions of law after a proper request,

the failure is presumed harmful unless the record affirmatively shows the complaining

party suffered no injury. Id.

       The general rule is that an appellant has been harmed if, under the

circumstances of the case, it has to guess at the reason the trial court ruled against it.

Larry F. Smith, Inc. v. The Weber Co., Inc., 110 S.W.3d 611, 614 (Tex. App.—Dallas

2003, pet. denied). If there is only a single ground of recovery or a single defense, an

appellant does not usually have to guess at the reasons for the trial court’s judgment.

Id. When there are two or more possible grounds of recovery or defense, an appellant

is forced to guess what the trial court found unless the trial court’s findings are

provided to it. Id.

       Here, as Brinson admits, the only claim that Hooper could have recovered

attorney’s fees on is theft of confidential information. No one has to guess as to why

the trial court awarded Hooper attorney’s fees. Hooper’s motion for attorney’s fees

discussed in detail why she should be awarded fees and all parties know why she was

awarded fees – she prevailed on the theft of confidential information claim. (4 CR

                                               30
4350-4359) (Appendix Tab 2). The trial court specifically stated in the Judgment that

based on his “ruling on directed verdict” and “review and consideration of the parties’

motions for attorneys’ fees and accompanying affidavits,” the trial court awarded

Hooper “reasonable and necessary attorneys’ fees of $388,970.30.” (Appendix Tab

1). As Brinson acknowledged in its proposed jury charge, the only factual finding

needed is “[w]hat is a reasonable fee for the necessary services . . .” (4 CR 4163). The

trial court expressly found and concluded that $388,970.30 in attorney’s fees was

reasonable and necessary in successfully defending Brinson’s theft of confidential

information claim. Thus, based on the record, findings of fact were not necessary and

any error by the trial court in failing to file findings of fact and conclusions of law was

harmless. See Santiago, 2015 WL 1805048, at *4. Moreover, Brinson does not explain

and the record does not show how Brinson was prevented from properly presenting

its case to this Court or how it otherwise suffered injury from the alleged error.

       B.     Hooper segregated fees unless legal services advanced both
              recoverable and unrecoverable claims.
       Brinson argues that Hooper’s counsel failed to segregate fees between claims

for which they are recoverable and claims for which they are not. (Brinson’s Br. pp.

41-44). Hooper’s counsel, however, submitted a six-page affidavit describing why the

fees were reasonable and necessary and how he segregated the fees. (4 CR 4383-4388)

(Appendix Tab 3). Brinson does not explain why the segregation was wrong.




                                               31
       The amount of an award of attorney’s fees rests in the sound discretion of the

trial court, and its judgment will not be reversed on appeal without a clear showing of

abuse of discretion. Owen Elec. Supply, Inc. v. Brite Day Constr., Inc., 821 S.W.2d 283, 288

(Tex. App.—Houston [1st Dist.] 1991, writ denied). A prevailing party generally has a

duty to segregate recoverable from unrecoverable attorney’s fees. Tony Gullo Motors I,

L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). However, a party is not required to

segregate attorney’s fees if “discrete legal services advance both a recoverable and

unrecoverable claim,” thus causing the fees to become “so intertwined that they

cannot be segregated.” Id. at 313-14; A&L Eng’g and Consulting, Inc. v. Shiloh Apollo

Plaza, Inc., 315 S.W.3d 928, 931 (Tex. App.—Dallas 2010, no pet.). If any task relates

solely to a claim for which legal fees are not recoverable, the claimant must segregate

the fees. 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488,

509 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

       As explained to the trial court, and as further discussed here, Brinson filed this

lawsuit and aggressively prosecuted it for over two years on the premise that Hooper

stole Brinson’s confidential and trade secret information, deprived Brinson of it, and

then used or disclosed it causing Brinson to lose over $650,000.00 in profits. (4 CR

4350-4359) (Appendix Tab 2).           All of Brinson’s claims, except for outside

commissions, revolved around this premise and/or sought lost profits for the alleged

conduct. (3 CR 2760-2781). Brinson referred to the “bulk update” throughout the

litigation and alleged that Hooper stole its trade secret and confidential information

                                                32
(i.e. client data and hot sheets). (3 RR 14-17, 14 RR 18; 15 RR 57, 61, 75-76). Brinson

sought only lost profit damages based on clients lost or a prospect that it did not

obtain. (4 CR 4369). The legal tasks performed in this case advanced Hooper’s

defense on these claims that there was simply no causal nexus between the alleged

conduct and the alleged injury for lost profits.

      Hooper’s counsel’s affidavit regarding attorney’s fees described in detail how he

determined the reasonable and necessary attorney’s fees for defending against the

allegation that Hooper’s conduct somehow caused Brinson to lose hundreds of

thousands of dollars in lost profits. (4 CR 4383-4388) (Appendix Tab 3). Hooper’s

counsel attached all of the billing records to the affidavit and explained how he

segregated the fees. (4 CR 4389-4471).

      First, counsel determined that fees for defending the theft of confidential,

proprietary and/or trade secret information on specific tasks that had nothing to do

with outside commissions was $102,978.00. (4 CR 4386-4387) (Appendix Tab 3). As

explained, these tasks and services in attending certain hearings and depositions, and

the related motions and responses, concerned Brinson’s claims seeking lost profits

damages and thus advanced Hooper’s causation defense on both recoverable and

unrecoverable claims. Id. These tasks did not relate solely to a claim for which legal

fees were not recoverable.

      Second, counsel determined that the remaining fees concerned a mix of time

spent on (i) the alleged theft of confidential/proprietary/trade secret information, (ii)

                                               33
nonpayment of outside commissions claim, and (iii) the breach of contract

counterclaim. After reviewing the billing records, counsel determined that 75% of the

time was spent on the first category, 20% spent on the second, and 5% spent on the

last category.     (4 CR 4387-4388) (Appendix Tab 3).        Based on the percentage

breakdown, counsel determined that $311,736.75 in fees was reasonable and necessary

in defending the theft of confidential information claim.

       Counsel then added the two sets of fees to reach the requested amount of

$414,714.75 in attorney’s fees for defending the theft of confidential information

claim. (4 CR 4388). As explained in the affidavit, the time spent defending the theft

of confidential information claim was inextricably intertwined with the time spent on

the other claims, except for time regarding outside commissions. (4 CR 4387). In

other words, the legal services advanced both recoverable and unrecoverable claims

and thus additional segregation was not required. The trial court properly considered

the evidence and determined in his discretion the “reasonable and necessary”

attorney’s fees.

       Hooper’s counsel adequately segregated the attorney’s fees where he could and

stated that the remaining fees were so intertwined because they advanced the overall

defense that Brinson did not suffer any lost profit damages due to Hooper’s alleged

conduct. The trial court considered the evidence and properly awarded Hooper her

attorney’s fees for successfully defending the allegation that she stole confidential and

trade secret information.

                                              34
                                       Prayer

      Hooper asks this court to affirm the trial court’s final judgment and to award

Hooper her attorney’s fees and costs on appeal.

                                             Respectfully submitted,



                                              /s/ James C. Scott
                                             James C. Scott
                                             Texas Bar No. 24056287
                                             Gardere Wynne Sewell LLP
                                             3000 Thanksgiving Tower
                                             1601 Elm Street
                                             Dallas, Texas 75201
                                             Tel: 214-999-3000
                                             Fax: 214-999-4667
                                             jscott@gardere.com

                                             ATTORNEYS FOR APPELLEE
                                             LINDA HOOPER




                                            35
                            Certificate of Compliance

      I certify that, in accordance with Texas Rule of Appellate Procedure 9.4, the

number of words contained in this document is 9,101 according to the computer

program used to prepare this document.



                                               /s/ James C. Scott
                                               James C. Scott


                                 Certificate of Service

      I certify that a copy of this brief was served by ECF Notice and email to the

following on September 22, 2015:

      Lyndon F. Bittle
      Monica W. Latin
      Carrington, Coleman, Sloman & Blumenthal, L.L.P.
      901 Main Street, Suite 5500
      Dallas, Texas 75202

      Cody L. Towns
      The Rodriguez Firm
      1700 Pacific, Suite 3850
      Dallas, Texas 75201



                                               /s/ James C. Scott
                                               James C. Scott




                                              36
                                   Appendix

1.   Final Judgment, November 6, 2014

2.   Defendant Linda Hooper’s Motion for Attorneys’ Fees, October 17, 2014

3.   Affidavit of James C. Scott, October 16, 2014




                                           37
         APPENDIX 1
Final Judgment — November 6, 2014
                                                                                      Lf6iF
                                                                                                100289
                                          No, DC-12-07520-E

BRINSON BENEFITS, INC,                                    IN THE DISTRICT COURT OF

      Plaintiff,

V.
                                                          DALLAS COUNTY, TEXAS
LINDA HOOPER, SEAN SENDELBACH,
AND HOLMES MURPHY &
ASSOCIATES, INC.,

      Defendants.                                        101ST JUDICIAL DISTRICT

                                       FINAL JUDGMENT

         On September 2, 2014, this case was called for trial, Brinson Benefits, Inc. ("Plaintiff')

appeared through its attorney and announced ready for trial. Linda Hooper ("Defendant

Hooper"), Sean Sendelbach ("Defendant Sendelbach"), and Holmes Murphy & Associates, Inc.

("Defendant Holmes Murphy") appeared through their respective attorneys and announced ready

for trial.

         After a jury was impaneled and sworn, it heard the evidence and arguments of counsel.

In response to the jury charge, the jury made findings that the Court received, filed, and entered

of record. Based on (i) the jury's verdict, (ii) the Court's ruling on directed verdict, and (iii) the

Court's review and consideration of the parties' motions for attorneys' fees and accompanying

affidavits, the Court had determined that judgment should be rendered as set forth below. It is,

therefore,

        ORDERED, ADJUDGED AND DECREED that Plaintiff have and recover from

Defendant Hooper the following amounts:




FINAL JUDGMENT                                                                                 PAGE 1
                                                                                                         4939
        a)     actual damages in the amount of $38,160.01;

        b)     pre-judgment interest at the rate of 5% per annum from the date of suit through

November 5, 2014, in the amount of $4,438.06;

        c)     reasonable and necessary attorneys' fees of $100,277.90, plus contingent

attorneys' fees in the following amounts: an additional $50,000 in the event this judgment is

appealed to by Defendant Hooper to the Court of Appeals and this portion of this judgment is

affirmed by the Court of Appeals; an additional $15,000 in the event a petition for review of this

case is filed in the Supreme Court of Texas by Defendant Hooper and such petition is denied;

and, an additional $35,000 in the event a petition for review of this case is granted by the

Supreme Court of Texas by Defendant Hooper and this portion of this Judgment is affirmed; and,

       IT IS FURTHER ORDER, ADJUDGED AND DECREED that Defendant Hooper

have and recover from Plaintiff reasonable and necessary attorneys' fees of $388,970.30, plus

contingent attorneys' fees in the following amounts: an additional $50,000 in the event this

judgment is appealed to by Plaintiff to the Court of Appeals and this portion of this judgment is

affirmed by the Court of Appeals; an additional $15,000 in the event a petition for review of this

case is filed in the Supreme Court of Texas by Plaintiff and such petition is denied; and, an

additional $35,000 in the event a petition for review of this case is granted by the Supreme Court

of Texas and this portion of this Judgment is affirmed.

       IT IS FURTHER ORDER, ADJUDGED AND DECREED that Defendants

Sendelbach and Holmes Murphy have and recover from Plaintiff reasonable and necessary

attorneys' fees of $372,519.76, plus contingent attorneys' fees in the following amounts: an

additional $50,000 in the event this judgment is appealed to by Plaintiff to the Court of Appeals

and this portion of this judgment is affirmed by the Court of Appeals; an additional $15,000 in

the event a petition for review of this case is filed in the Supreme Court of Texas by Plaintiff and


FINAL JUDGMENT                                                                               PAGE 2
                                                                                                       4940
such petition is denied; and, an additional $35,000 in the event a petition for review of this case

is granted by the Supreme Court of Texas and this portion of this Judgment is affirmed.

       Costs of Court borne by Plaintiff and Defendant Hooper shall be taxed against the party

by whom incurred. Costs of court incurred by Defendants Sendelbach and Holmes Murphy shall

be taxed to the Plaintiff.

       All sums awarded herein shall bear post-judgment interest at the rate of 5% per annum

from the date of this Judgment until paid.

       All relief requested and not expressly granted herein is denied. The Court intends this

judgment to dispose of all parties and all claims, and to be final and appealable.

       SIGNED this 6th day of November, 2014.


                                                     JUDGE PRESIDING




FINAL JUDGMENT                                                                              PAGE 3
                                                                                                      4941
          APPENDIX 2
Defendant Linda Hooper's Motion for
 Attorneys' Fees - October 17, 2014
                                                                                                                FILED
                                                                                                    DALLAS COUNTY
                                                                                                10/17/2014 1:54:17 PM
                                                                                                 GARY FITZSIMMONS
                                                                                                      DISTRICT CLERK




                                             CAUSE No. 12-07520

 BRINSON BENEFITS, INC.,                                    IN THE DISTRICT COURT

      PLAINTIFF,

                                                                   ST
 V.                                                          101        JUDICIAL DISTRICT

LINDA HOOPER, SEAN SENDELBACH,
AND HOLMES MURPHY & ASSOCIATES,
INC.,

      DEFENDANTS.                                           DALLAS COUNTY, TEXAS

                         DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES

                                       I.         REQUESTED RELIEF

          Defendant Linda Hooper ("Ms. Hooper") requests her attorneys' fees for successfully

defending Plaintiff Brinson Benefits, Inc.'s ("Brinson") theft claim under the Texas Theft

Liability Act ("TTLA") concerning confidential, proprietary and trade secret information.

                                            II.    INTRODUCTION

          Brinson sued Ms. Hooper for civil theft, among other claims, alleging that Ms. Hooper

sto16 Brinson's confidential and proprietary information with the intent to deprive Brinson of that

infotmation and allegedly caused Brinson to lose a prospect and several clients resulting in

hundreds of thousands of dollars in damages to Brinson. From the beginning of the lawsuit until

trial; Brinson referred to this claim (in addition to the misappropriation of trade secrets and

conversion claims) as the "bulk update" of information from Brinson's server before Ms. Hooper

resigned. Brinson alleged throughout two-plus years of litigation that Ms. Hooper used or

disclbsed Brinson's client data sheets or hot sheets that caused Brinson damages. Ms. Hooper

incurred hundreds of thousands of dollars in attorneys' fees in defending Brinson's theft of

confidential information claim, including without limitation fees spent on two temporary

injunction hearings concerning theft of confidential information, discovery concerning

DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                         Page 1
Gardere01 - 6498488v.2
                                                                                                4350
confidential information, forensic analysis on Ms. Hooper's laptop concerning confidential

information, motion to seal confidential information, summary judgment briefing regarding

confidential information, and defending Brinson's lost profits analysis related to the alleged theft

of such confidential information. Ms. Hooper prevailed on that theft claim when the Court

granted directed verdict as to theft of confidential and proprietary information. Then, at the jury

charge conference, Brinson withdrew its claims for misappropriation of trade secrets and

conversion — which concerned the alleged misappropriation of Brinson's confidential

information. Ms. Hooper seeks her attorneys' fees and costs for prevailing on Brinson's civil

theft claim regarding confidential and proprietary information.

                                     III. PROCEDURAL BACKGROUND

         1.       The procedural timeline below shows the pleadings and hearings concerning the

alleged theft, use, disclosure and protection of confidential, proprietary and/or trade secret

information.

         2.       On July 9, 2012, Brinson sued Ms. Hooper for misappropriation of trade secrets

and breach of fiduciary duty, among other claims, alleging that Ms. Hooper misappropriated

Brinson's "trade secrets and confidential/proprietary information."' Brinson's theft claim under

the TTLA asserted the following:

         Defendant's conduct constitutes theft of Brinson Benefits' proprietary and
         confidential information and property. Defendant unlawfully took Brinson
         Benefits' proprietary and confidential information and property with the intent to
         deprive Brinson Benefits of it. Brinson Benefits has formally demanded that
         Defendant return the confidential information and property, but to no avail. As a
         result, Brinson Benefits has suffered injury.

        3.        On July 23, 2012, the Court held a temporary injunction hearing wherein Brinson

requested the Court to prevent and enjoin Ms. Hooper from using or disclosing Brinson's alleged


I See Brinson's original petition filed on July 9, 2012 on the Court's docket.

DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                           Page 2
Gardere01 -6498488v.2                                                                            4351
 confidential, proprietary, and/or trade secret information. In particular, Brinson's counsel stated:

          What we are asking the Court to do today, Your Honor, is to enjoin Ms. Hooper
          from using Brinson Benefits' confidential and proprietary information or their
          trade secrets that she possessed and took with her after she left the company.
          Particularly, Your Honor, the client data sheets.2

          4.       On that same day, Brinson filed a motion to temporarily seal confidential and

proprietary information.3            Thereafter, the parties exchanged several phone calls and

correspondence and held a hearing regarding what information to seal and whether certain

information could be redacted to prevent the unnecessary burden of sealing the whole record.

         5.        In July 2012, the Court requested a forensic examination of Ms. Hooper's laptop.

The parties retained an expert to review and provide analysis on Ms. Hooper's laptop. After

August 2012 and up until the time of trial in September 2014, Ms. Hooper incurred additional

attorneys' fees in analyzing and responding to Brinson's continued requests for additional

computer forensics on Ms. Hooper's laptop, carbonite account, emails, etc. Brinson never even

called or used the forensic expert at the September 2014 trial.

         6.       On August 7, 2012, the Court entered a temporary injunction stating that Ms.

Hooper was enjoined from using or disclosing Brinson's confidential, proprietary, and/or trade

secret information.4 After Ms. Hooper's motion to modify and a hearing on the same, the Court

entered a modified temporary injunction to (i) specifically identify the clients that Ms. Hooper

was enjoined from contacting for a period of time, and (ii) require Ms. Hooper to turn over

external devices regarding confidential and proprietary information.5

         7.       On August 27, 2012, Brinson filed its amended petition wherein it alleged for the

first time in passing that Ms. Hooper serviced clients for her own benefit (and for Holmes


2 See July 23, 2012 hearing transcript, p. 24, attached hereto as Exhibit "A."
3 See Brinson's motion to seal court records filed July 23, 2012 on the Court's docket.
  See temporary injunction dated August 7, 2012 on the Court's docket.
5 See modified temporary injunction dated September 10, 2012.


DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                          Page 3
Gardere01 - 6498488v.2
                                                                                                4352
    Murphy's benefit).6 However, Brinson's theft claim under the TTLA did not change — it still

    concerned confidential and proprietary information.

           8.         On September 10, 2012, the Court entered an order on Brinson's motion to seal

 court records that Brinson considered confidential and proprietary.7

           9.         On October 17, 2012, Brinson filed its motion for continuance and extension of

 the temporary injunction.8 Brinson asked the Court "to extend the Temporary Injunction because

 it is apparent that Defendants have used, and will continue using, Plaintiff's trade

secret/confidential/proprietary information in their attempts to usurp Plaintiffs clients." The

Court denied Brinson's motion.

           10.        On October 26, 2012, Brinson filed its second amended petition and its theft

claim remained the same — theft of Brinson's proprietary and confidential information and

property.9

           11.        In October 2012 and again in December 2013, the parties filed summary

judgment briefing that overwhelmingly discussed and argued the alleged misappropriation of

confidential/proprietary and trade secret information and whether there was ever any intent to

deprive, any use or disclosure, or any causation and damages resulting from that information.

The Court denied those motions.

           12.       On March 1, 2013, Brinson filed its third amended petition and its theft claim

remained the same — theft of Brinson's proprietary and confidential information and property.th

          13.        On June 10, 2013, Brinson filed its fourth amended petition and its theft claim




6 See Brinson's first amended petition filed August 27, 2012 on the Court's docket.
7 See Order on Motion to Seal Court Records dated September 10, 2012 on the Court's docket.
  See motion for continuance and extension of temporary injunction filed October 17, 2012 on the Court's docket.
9 See Brinson's second amended petition filed on October 26, 2012 on the Court's docket.
i° See Brinson's third amended petition filed on March 1, 2013 on the Court's docket,

DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                                       Page 4
Ciardere01 - 64984R8v.2
                                                                                                              4353
 remained the same — theft of Brinson's proprietary and confidential information and property."

         14.     On December 20, 2013, Brinson filed its fifth amended petition and its theft claim

 remained the same — theft of Brinson's proprietary and confidential information and property. 12

         15.     On December 26, 2013, Ms. Hooper filed a motion to strike Dawn Brinson as an

expert on lost business calculation and valuations extending into the future (allegedly resulting

from misappropriation of confidential and trade secret information)," On that same day,

Brinson filed a motion to limit Ms. Hooper's expert's testimony regarding future lost profits.I4

The Court agreed that Dawn Brinson was not an expert on future lost profits.

         16.     In September 2014, the parties tried the case to a jury. After Brinson rested its

case, the Court granted Ms. Hooper's motion for directed verdict on Brinson's theft claim

concerning confidential and proprietary information. Thereafter, Brinson withdrew its

misappropriation of trade secrets and conversion claims.

        17.      On September 10, 2014, the jury entered its verdict and awarded Brinson roughly

$31,000 for its theft claim concerning outside commissions (which Ms. Hooper objected to

because such claim was not pled in the petition under the TTLA). However, Hooper prevailed

on Brinson's theft claim concerning confidential and proprietary information whereby Brinson

sought hundreds of thousands of dollars in damages against Ms. Hooper. I5

                                IV.     ARGUMENTS AND AUTHORITIES

        The TTLA provides that "[e]ach person who prevails in a suit under this chapter shall be

awarded court costs and reasonable and necessary attorney's fees." TEX. Civ. PRAC. & REM.

CODE ANN. §       134.005(b). The award of fees to a prevailing party in a TTLA action is

11 See Brinson's fourth amended petition filed on June 10, 2013 on the Court's docket.
12 See Brinson's fifth amended petition filed on December 20, 2013 on the Court's docket.
13 See Hooper's motion to strike filed on December 26, 2013 on the Court's docket.
14 See Brinson's motion to limit filed on December 26, 2013 on the Court's docket.
15 See Brinson's second amended disclosures attached hereto as Exhibit "B" wherein it sought over $550,000.00
plus an additional $100,000.00+ in actual damages and $3,000,000.00 in punitive damages.

DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                                  Page 5
narder:01 - 64984F8v                                                                                    4354
mandatory. Brown v. Kleerekoper, No. 01-11-00972-CV, 2013 WL 816393 at *5 (Tex. App.—

Houston [1.s' Dist.] Mar. 5, 2013, pet. filed) (mem. op.). The TTLA requires the court to award

attorney's fees to a prevailing defendant "without any prerequisite that the claim is found to be

groundless, frivolous, or brought in bad faith." Air Routing Intl Corp. (Canada) v. Britannia

Airways, Ltd., 150 S.W.3d 682, 686 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

        In Moak v. Huff, No, 04-11-00184-CV, 2012 WL 566140, at *11 (Tex. App.—San

Antonio, Feb. 15, 2012, no pet.) (mem. op.), the defendant lost on the plaintiffs DTPA claim but

successfully defended against the plaintiffs TTLA claim. Id., 2012 WL 566140, at *1. The

defendant then sought an award of attorney's fees under the TTLA. Id., at *9. The plaintiff

resisted, arguing that a person does not "prevail in a suit" unless he is the "party in whose favor a

judgment is rendered" and is "vindicated by the judgment." Id., at *10. The plaintiff maintained

that the defendant had to prevail on the entire suit to recover attorney's fees under the TTLA. Id

       The court of appeals disagreed, holding that "a person who prevails in a TTLA cause of

action is entitled to recover the reasonable fees necessarily incurred prosecuting or defending the

cause of action, even if the party is unsuccessful on other claims and counterclaims litigated in

the same suit." Id., at *11; see also Arrow Marble, LLC v. Killion, No. 01-12-01133-CV, 2014

WL 2958278, at *3-4 (Tex. App.—Houston [1st Dist.] July 1, 2014, no pet.) (defendant was

prevailing party on theft claim dismissed with prejudice).

       Similarly, in Brown v. Kleerekoper, the defendant was considered the prevailing party

under the TTLA when she prevailed on one TTLA claim, lost on another TTLA claim, and lost

on a breach of contract claim. Kleerekoper, 2013 WL 816393, at *5. The court of appeals stated

"[w]e agree with the San Antonio court that a party who prevails on a TTLA cause of action is

entitled to recover attorney's fees, even though that party may not have prevailed on other causes



DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                          Page 6
neffiere01 - 6495ustRy.1                                                                        4355
of action asserted in the suit. Id. Thus, the court of appeals upheld the award of attorney's fees

to the defendant for successfully defending herself on the theft of property claim under the

TTLA. Id.

        Here, Ms. Hooper successfully defended herself on the theft of confidential and

proprietary information claim under the TTLA. The Court granted directed verdict on that claim

and dismissed it as a matter of law. Thereafter, Brinson withdrew all of its claims concerning

misappropriation of confidential information or trade secrets (i.e. misappropriation of trade

secrets and conversion). Brinson filed this lawsuit on the grounds that Ms. Hooper stole all of its

confidential, proprietary, and/or trade secret information and used or intended to use it. Ms.

Hooper spent close to $100,000 in attorneys' fees defending herself on these claims before

Brinson ever alleged non-payment of outside commissions — which Brinson only alleged in

passing in its second amended petition. As shown in the procedural timeline above, Brinson

focused most of its case on the alleged theft, use, disclosure and protection of confidential,

proprietary and/or trade secret information. The procedural timeline shown above has nothing to

do with the theft of outside commissions. Moreover, Brinson sought over $650,000.00 in actual

damages and $3,000,000.00 in punitive damages against Ms. Hooper for the alleged use and

disclosure of confidential/proprietary/trade secret information that allegedly caused Brinson to

lose a prospect and 9 clients. After this lawsuit had been on file for nearly two months, Brinson

asserted a claim for outside commissions for the first time which it only sought roughly $82,000

for. The outside commission number was small in comparison to Brinson's lost profit claims for

confidential and proprietary information of over $650,000.00.

       Further, the massive amount of discovery conducted on gathering and producing the

alleged confidential, proprietary and/or trade secret information took considerable attorney time.



DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                        Page 7
Carden:II - 6198188v.2                                                                        4356
Moreover, Brinson took the following depositions concerning the potential use or disclosure of

confidential, proprietary and/or trade secret information: two depositions of Sean Sendelbach,

two depositions of Den Bishop (Holmes Murphy), deposition of Oni Blodgett (Holmes Murphy),

deposition of Steve Gwinn (Holmes Murphy), deposition of Ellen Willadsen (Holmes Murphy),

deposition of Jacki Crain Power (Northwestern Benefits), deposition of David Evans (Door

Control Services), deposition of Mary McMillan (Plano Sports Authority), and Gary Durham

(Hooper's future lost profits expert). None of these depositions (11 of them) concerned outside

commissions; instead, they concerned the alleged use and disclosure of confidential information.

Ms. Hooper defended herself on the theft claim of confidential information because she never

used or disclosed any information and/or there was never any causation or damages to Brinson.

Also, there was never any intent to deprive because all of the information was on Brinson's

server. Nevertheless, Brinson was relentless in pursuing those claims and sought close to

$700,000.00 in damages from Ms. Hooper up and until the Court granted directed verdict on the

theft claim and Brinson withdrew its misappropriation of trade secrets and conversion claims.

These are the claims that made up the majority of the case and that Brinson argued time and time

again — alleging that Ms. Hooper had Brinson's client data sheets, hot sheets and other

confidential information that she allegedly used to cause Brinson to lose a prospect and several

clients.

           Even though Ms. Hooper did not prevail on the nonpayment of outside commissions

(which was not plead as a theft claim) or breach of fiduciary duty regarding Pinnacle, she did

prevail on the theft of confidential, proprietary and/or trade secret information — which is the

theory that Brinson brought this suit on (i.e. alleging that Ms. Hooper had Brinson's confidential

and trade secret information and intended to use it) and required Ms. Hooper to incur hundreds



DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                       Page 8
Craniere0i - (5498418v.2                                                                      4357
 of thousands of dollars in attorneys' fees to defend herself. Ms. Hooper is entitled to recover her

attorneys' fees for prevailing on the theft of confidential information.

           As shown in James C. Scott's affidavit attached hereto as Exhibit "C," Ms. Hooper seeks

$414,714.75 in attorneys' fees and $18,886.86 in costs for successfully defending the theft of

confidential/proprietary/trade secret information claim.

                                         V.      CONCLUSION

          Ms. Hooper successfully defended herself after over two years of fighting Brinson's theft

of confidential, proprietary, and/or trade secret information claim. Thus, Ms. Hooper requests

the Court to award her the attorneys' fees for defending the theft claim. Ms. Hooper further

requests any relief, at law or in equity, to which she is justly entitled.


                                                        Respectfully submitted,


                                                        /s/ James C. Scott
                                                        James C. Scott
                                                        Texas State Bar No. 24056287
                                                        GARDERE WYNNE SEWELL LLP
                                                        3000 Thanksgiving Tower
                                                        1601 Elm Street
                                                        Dallas, Texas 75201
                                                        Telephone: (214) 999-3000
                                                        Facsimile: (214) 999-4667

                                                        ATTORNEYS FOR LINDA HOOPER




DEFENDANT LINDA HOOPER'S monoN FOR ATTORNEYS' FEES                                          Page 9
               8488
Gal deft01 -6498  8v.2                                                                         4358
                             CERTIFICATE OF CONFERENCE

       On October 16, 2014, I conferred with the plaintiff's counsel by email regarding the relief
requested in this motion. Plaintiff's counsel is opposed to the relief requested in this motion.
Thus, this motion is presented to the Court for decision.

                                                    Is/ James C. Scott
                                                    James C. Scott


                                CERTIFICATE OF SERVICE

       I hereby certify that on October 17, 2014, a true and correct copy of the foregoing

document was served upon all counsel of record pursuant to the Texas Rules of Civil Procedure.

       Lu Pham                                      Via Email
       David Speed
       Cantey Hanger LLP
       600 W. 6th Sreet, Suite 300
       Fort Worth, Texas 76102
       Facsimile: (817) 877-2807
       Email: 1pham@canteyhanger.com
       dspeed@canteyhanger.com

       Cody L. Towns                                Via Email
       The Rodriguez Law Firm
       1700 Pacific Ave., Suite 3850
       Dallas, Texas 75201
       Facsimile: (214) 220-2920
       Email: CTowns@TheRodriguezFirm.com

                                                    /s/ James C. Scott
                                                    James C. Scott




DEFENDANT LINDA HOOPER'S MOTION FOR ATTORNEYS' FEES                                      Page 10
Gardere0 - 6498488v.2                                                                        4359
               APPENDIX 3
Affidavit of James C. Scott - October 16, 2014
                                      CAUSE NO. 12-07520

  BRINSON BENEFITS, INC.,                                     IN THE DISTRICT COURT OF


         Plaintiff
                                                                  DALLAS COUNTY, TEXAS
 V.

 LINDA HOOPER, et al.,

         Defend ants.                                             101sT JUDICIAL DISTRICT

                                 AFFIDAVIT OF JAMES C. SCOTT

       BEFORE ME, the undersigned notary public, on this date personally appeared James C.
Scott, who known to me to be the person whose name is subscribed below, being duly sworn,
deposed and said:

       1.      "My name is James C. Scott. I am over the age of twenty-one (21) years, am fully
competent to provide this affidavit and have personal knowledge of the facts stated herein, facts
which are true and correct.

         2.     I am an attorney with the law firm of Gardere Wynne Sewell LLP ("Gardere")
and have served as lead legal counsel for Linda Hooper ("Ms. Hooper") in this case. I am
familiar with the usual and customary work performed in representing parties in business
litigation, and a significant amount of my practice has been devoted to such disputes.

        3.      Ms. Hooper retained my services and those of Gardere to represent her in
connection with the defense of Plaintiffs claims against her. In this connection, Ms. Hooper
agreed to pay reasonable and necessary attorneys' fees for Gardere's services. Ms. Hooper's
most recent amended pleading in this case and her Motion for Attorneys' Fees filed herewith
articulates the basis for her claim for attorneys' fees, which are recoverable under the applicable
law — the successful defense of Plaintiffs theft claim under the Texas Theft Liability Act
concerning confidential/proprietary/trade secret information.

        4.      I graduated from the South Texas College of Law in 2006, and have been
admitted to practice in the State of Texas since November 2006. From the date of my admittance
before the State Bar of Texas to the present, I have practiced law within the state of Texas and
with Gardere in Dallas, Texas, A large part of my legal experience has been representing clients
in litigation in state and federal courts throughout Texas. As a result, I am familiar with the
reasonable and necessary attorneys' fees charged in Texas for legal services.

        5.      I am also familiar with the legal services rendered in connection with this case,
the necessity of such services and the reasonable charge for those services. In determining the
reasonableness of the fees for the services Gardere rendered herein, I have considered the
following standards set forth in TEXAS DISCIPLINARY R. PROF. CONDUCT 1.04, reprinted in TEX.
                                                 EXHIBIT
AFFIDAVIT OF JAMES C. SCOTT                                                                 PAGE 1


                                           I                                                  4383
Gov'T CODE, tit. 2 subtit. G app. (State Bar Rules, Art. 10 § 9) and Arthur Andersen v. Perry
Equipment Corp., 945 S.W.2d 812 (Tex. 1997): (1) the time and labor required; (2) the novelty
and difficulty of the questions presented; (3) the skill required to perform the legal services
properly; (4) the preclusion of other employment due to acceptance of the case; (5) the
customary fee charged in the locality for similar legal services; (6) whether the fee is fixed or
contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount
involved and the results obtained; (9) the experience, reputation and ability of the attorneys; and
(10) the nature and length of the professional relationship with the client.

        6.     Having considered the nature and extent of the services supplied by Gardere, the
value of the services according to the customary fee and quality of the legal work and the other
Arthur Anderson factors as described below, Ms. Hooper simply asks for reimbursement of the
costs, fees and expenses incurred in connection with defending Plaintiff's theft claim under the
Texas Theft Liability Act ("TTLA") concerning confidential, proprietary and/or trade secret
information that the Court granted directed verdict on.

         7.     The costs, fees and expenses incurred by Ms. Hooper in defending the theft claim
in this case are commensurate with a case of this size.

               a.     The time and labor required. The Plaintiff's counsel relentlessly
                      prosecuted this case which had the result of (at least) imposing time and
                      expense burdens on Ms. Hooper's counsel to defend the theft claim
                      concerning confidential and proprietary information as follows:

                      i.      Attending two hearings regarding Plaintiff's application for a
                              temporary injunction, one hearing regarding a motion to modify
                              the temporary injunction, and one hearing regarding Plaintiff's
                              request to extend the temporary injunction. The temporary
                              injunction concerned enjoining Ms. Hooper from using or
                              disclosing confidential, proprietary and/or trade secret information
                              that Plaintiff's sought millions of dollars in damages against Ms.
                              Hooper for;

                      ii.     Attending to computer forensic analysis of Ms. Hooper's laptop to
                              determine the extent of confidential information and whether there
                              was any use or disclosure of same. After the temporary injunction
                              hearing, Plaintiff continued to seek computer forensics on Ms.
                              Hooper's laptop, carbonite account, and emails for confidential
                              information that required additional attorney time;

                      iii.    Attending to the sealing of court records that Plaintiff asserted as
                              confidential, proprietary and/or trade secret;

                      iv.     Drafting on two different occasions motions for partial summary
                              judgment and responses to motions for partial summary judgment
                              that overwhelmingly concerned theft or misappropriation of



AFFIDAVIT OF JAMES C. SCOTT                                                                PAGE 2

                                                                                             4384
                               confidential, proprietary and/or trade secret information, and
                               arguing the same at one hearing;

                       v.      Drafting and arguing a motion to strike Plaintiff's expert on future
                               lost profits resulting from the alleged use or disclosure of
                               confidential, proprietary or trade secret information;

                       vi.     Attending to numerous depositions concerning Plaintiff s
                               allegations of use or disclosure of confidential, proprietary and/or
                               trade secret information;

                       vii.    Collecting and responding to Plaintiff's discovery requests for
                               confidential, proprietary and/or trade secret information, and use
                               and disclosure of same; and

                       viii.   Trying the case to a jury that mainly concerned misappropriation
                               and theft of confidential, proprietary, and/or trade secret
                               information that Ms. Hooper allegedly used to take a prospect (i.e.
                               Door Control Services) and several clients.

               Each of these services is typical in a case of this type.

               b.     The novelty and difficulty of the questions. Defense of the theft claim
                      concerning confidential information did not involve any particularly
                      difficult issues, but did involve learning the employee benefits advisory
                      business and how confidential information is kept, as well as Plaintiffs
                      alleged trade secrets. The defense also involved responding to discovery
                      and attending numerous depositions wherein Plaintiff tried to prove
                      (unsuccessfully) that Ms. Hooper used or disclosed Plaintiff's confidential,
                      proprietary and/or trade secret information and/or that having such
                      information cause Plaintiff millions of dollars in damages.

               c.     The skill requisite to perform the legal services properly. This case
                      required standard legal services: preparing pleadings, drafting several
                      motions and responses (including summary judgment), preparing
                      discovery and responding to discovery, taking several depositions, arguing
                      several hearings regarding modifying, extending, and/or violating the
                      temporary injunction, discovery issues, sealing court records, arguing two
                      temporary injunction hearings, and trying the case to a jury. A review of
                      the record demonstrates an appropriate level of competence and
                      expenditure of time and effort by Ms. Hooper's counsel. No unusual skill
                      was required.

              d.      The preclusion of employment by the attorney due to his or her acceptance
                      of the case. I was not precluded from other employment in any significant
                      way.



AFFIDAVIT OF JAMES C. SCOTT                                                                PACE 3
                                                                                              4385
               e.     The customary fees. For this case, Gardere charged Ms. Hooper a
                      customary fee for my services that ranged from $380.00, to $395.00 to
                      $405.00 per hour for attorney time over a twenty-six month period. I used
                      a junior associate to assist me for much of the case and his rate per hour
                      ranged from $290.00 to $320.00, I also utilized paralegals where
                      appropriate whose rates per hour ranged from $210.00 to $235.00. These
                      amounts are customary and appropriate fees for the services rendered, and
                      are reflected in the attached invoices.

               f.      Whether the fees are fixed or contingent. The fee is a fixed hourly rate
                       fee.

               g.     Time limitations imposed by the client or the circumstances. The client
                      did not impose any unusual time limits.

               h.     The amount involved and the results obtained.             Plaintiff sought
                      approximately $700,000.00 in actual damages and $3,000,000.00 in
                      punitive damages from Ms. Hooper. Ms. Hooper successfully defended
                      Plaintiff's theft of confidential information claim on directed verdict.
                      Plaintiff obtained approximately $38,000 from the jury on its other claims.

               i.     The experience, reputation and ability of the attorneys. I have eight years
                      of litigation experience. I have argued before the Texas Supreme Court,
                      tried cases, and argued numerous summary judgment motions and several
                      temporary injunction hearings. I have been recognized as a Texas Rising
                      Star in business litigation by Texas Monthly magazine the last two years.
                      I am well respected within my firm. I like to believe I have a good
                      reputation and have good ability.

                      The "undesirability" of the case. Ms. Hooper is a good and desirable
                      client.

               k.     The nature and length of the professional relationship with the client.
                      This is the first matter I have been retained on to represent Ms. Hooper.

        8.      Ms. Hooper has incurred $414,714.75 in attorneys' fees, plus court costs and
other legal expenses totaling $18,886.86 for services rendered in connection with successfully
defending Plaintiff's theft of confidential and proprietary information claim under the TTLA. I
determined the fees by reviewing the legal invoices and costs attached hereto and segregating the
fees into three parts as follows:

              a.      First, I determined which fees related to time spent on the case (i.e.
                      discovery, pleadings, or hearings) that had nothing to do with Plaintiff's
                      claim concerning Ms. Hooper's non-payment of outside commissions.
                      For instance, Plaintiff's original petition, the first temporary injunction
                      hearing, the motion to modify the temporary injunction, the motion to
                      extend the temporary injunction, the motion to seal court records, the
                      motion to strike Dawn Brinson as an expert on lost profits, the computer
AFFIDAVIT OF JAMES C. SCOTT                                                               PAGE 4

                                                                                            4386
                           forensics on Ms. Hooper's laptop, the depositions of all the Holmes
                          Murphy & Associates people, the depositions of Door Control Services
                          and Plano Sports Authority, the deposition of Gary Durham (Ms. Hooper's
                           lost profits expert), etc. had nothing to do with outside commissions and
                          instead related to the misappropriation and theft of confidential,
                          proprietary, and trade secret information that Plaintiff attempted to prove
                          Ms. Hooper used and/or disclosed that allegedly caused it to lose a
                          prospect and several clients that Plaintiff sought future lost profits for.
                          The time spent to defend the theft of such information, in addition to
                          misappropriation of trade secrets, conversion of such information, and
                          breach of fiduciary duty regarding such information (i.e. allegedly using
                          such information to try and obtain Door Control Services as a client) is
                          inextricably intertwined and difficult, if not impossible, to segregate. I
                          determined that the reasonable and necessary attorneys' fees for defending
                          the theft of this alleged confidential, proprietary and/or trade secret
                          information on specific tasks that had nothing to do with outside
                          commissions is $102,978.00. The cost associated with the depositions
                          identified above, and expert fees and court reporter costs, is $18,886.86.
                          The fees segregated from each invoice that are recoverable as attorneys'
                          fees that have nothing to do with outside commissions are as follows:'

                              Invoice #1082257                                     $56,383.00
                              Invoice #1085277                                     $15,627.00
                              Invoice #1088314                                      $1,921.00
                              Invoice #1092207                                     $1,711.00
                              Invoice #1100688                                     $3,222.00
                              Invoice #1103063                                         $0
                              Invoice #1106706                                     $1,640.00
                              Invoice #1109091                                     $1,056.00
                              Invoice #1112287                                     $4,824.00
                              Invoice #1115930                                     $1,600.00
                              Invoice #1122003                                     $4,127.00
                              Invoice #1130727                                     $2,370.00
                              Invoice #1141317                                     $6,715.00
                              Invoice #1162635                                     $1,782.00
                              Invoice #1164002                                         $0
                                    Total                                         $102,978.00


                 b.       Second, I determined that the remaining fees in this case concerned a mix
                          of time spent on (i) Plaintiffs confidential/proprietary/trade secret and
                          fiduciary duty claims concerning lost profits, (ii) Plaintiffs nonpayment of
                          outside commission claims, and (iii) Ms. Hooper's breach of contract

  The first invoice has the highest recoverable amount of fees of all invoices because non-payment of outside
commissions was not an issue at that time. The other invoices show fees for time spent on specific tasks that had
nothing to do with outside commissions.

AFFIDAVIT OF JAMES C. SCOTT                                                                              PAGE 5


                                                                                                            4387
                        counterclaim. The time spent on the joint tasks concerning the first two
                        items is difficult to segregate but I determined that 75% of the time was
                        spent on the confidential/proprietary/trade secret and fiduciary duty claims
                        concerning lost profits and 20% of the time was spent on the non-payment
                        of outside commission claims (see below regarding remaining 5%). Thus,
                        I determined that based on that percentage, the reasonable and necessary
                        attorneys' fees for defending the theft of the alleged confidential,
                        proprietary and/or trade secret information is $311,736.75.

               c.       Finally, I determined that 5% of this case related to Ms. Hooper's
                        counterclaim for breach of contract for which no fees are recoverable and
                        segregated that time out.

        The work done (and to be done) was both reasonable and necessary for this case's needs.
And, the rates charged are reasonable rates in Texas for this type of case and counsel of this
caliber. Plaintiff sought approximately $4,000,000.00 in damages from Ms. Hooper, thus
$414,714.75 ($102,978 + $311,736.75) in attorneys' fees is reasonable. All of this work relates
to a claim for which attorneys fees are recoverable.

        9.     Based upon a consideration of the Arthur Anderson factors, including the nature
of this case, my experience, as well as my familiarity with the work performed in this case,
including the review of all the pleadings, exhibits, records and Gardere's invoices, my
knowledge of similar type cases, and the hourly billable rates charged by Gardere for its services,
it is my opinion that attorneys' fees totaling $414,714.75, plus court costs and other legal
expenses totaling $18,886.86 are fair, reasonable and necessary fees and costs for the legal
services rendered in successfully defending Plaintiff's theft of confidential and proprietary
information claim under the TTLA.

        10.    Further, I am familiar with the reasonable and customary charges for appeals to
the Court of Appeals and writs of error to the Supreme Court of Texas. In my opinion a
reasonable and customary charge for the services to be performed by the Gardere law firm in the
event of an appeal to the Court of Appeals is $15,000.00. Furthermore, in my opinion a
reasonable and customary charge for the services to be performed by the Gardere law firm in the
event that a writ of error in the Supreme Court of Texas is filed is $10,000.00.

       Further, Affiant sayeth not.




        SUBSCRIBED AND SWORN TO BEFORE ME on this (P day of October, 2014, to
certify which witness my hand and official seal of office.


               ABBE HOLZMEISTER
                   Notary Public
                                                      a.
                   State of Texas                    Notary Public in and for (he State of Texas
             My Comm. Expires 06-24-2017

AFFIDAVIT OF JAMES C. SCOTT                                                                  PAGE 6

                                                                                               4388
