                                                                            ACCEPTED
                                                                        08-17-00229-CV
                   08-17-00229-CV                            EIGHTH COURT OF APPEALS
                                                                       EL PASO, TEXAS
                                                                     5/21/2018 11:53 PM
                                                                      DENISE PACHECO
                                                                                 CLERK

             IN THE COURT OF APPEALS
             EIGHTH DISTRICT OF TEXAS
                   EL PASO, TEXAS                  FILED IN
                                            8th COURT OF APPEALS
_____________________________________________________
                                                EL PASO, TEXAS
                                                5/21/2018 11:53:56 PM
                      08-17-00229-CV
                  NO. 08-17-00229-CV               DENISE PACHECO
                                                         Clerk


                  EJ MADISON, LLC.

                           v.

               PRO-TECH DIESEL, INC.
_____________________________________________________
                             TH
       Appealed from the 205
                         205TH  Judicial District Court
                 of El Paso County, Texas
_____________________________________________________

                  BRIEF OF APPELLANT
_____________________________________________________


                                Troy C. Brown
                                Texas Bar No. 00783735
                                300 E. Main
                                10th Floor,
                                10th Floor, Suite
                                            Suite 100
                                El Paso, Texas 79901
                                Tel. 915-543-9669
                                Fax 888-922-3353
                                troy@tcblegal.com
                                Attorney for Appellant




         ORAL ARGUMENT NOT REQUESTED
IDENTITIES OF PARTIES AND COUNSEL

Appellant                               Attorneys for Appellant
EJ Madison, LLC                         Troy C. Brown
                                        300 E. Main
                                        10th Floor, Suite 1000
                                        El Paso, Texas 79901
                                        Tel. 915-543-9669
                                        Fax 888-922-3353
                                        troy@tcblegal.com

Appellee                                Attorney for Appellee
Pro-Tech Diesel, Inc.                   Mannie Kalman
                                        Mounce, Green, Myers, Safi,
                                        Paxson & Galatzan, P.C.
                                        1214 Montana Avenue
                                        El Paso, TX
                                                 TX 79901
                                        mkalman@manniekalman.com

Additional parties in trial court
(not parties on appeal)

None



Trial Court Judge:
Hon. Guadalupe Rivera
205TH Judicial District Court
205Th
El Paso County, Texas




                                    i
                                         TABLE OF CONTENTS

IDENTITIES OF PARTIES AND COUNSEL ..........................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.....................................................................................iv

STATEMENT OF THE CASE ............................................................................... vii

ISSUES PRESENTED ........................................................................................... viii

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ......................................................................13

ARGUMENT AND AUTHORITIES ......................................................................14

I. Standard of review. .............................................................................................. 7

II. There is legally
              legally and factually
                            factually insufficient
                                       insufficient evidenceevidence to support the court's            court’s
lack of
lack  of finding
          finding that
                    that the
                          theintroduction
                               introduction of      of EL ELHollingsworth
                                                                  Hollingsworth to           to Pro-Tech
                                                                                                   Pro-Tech
constituted disclosure
constituted  disclosure of EJ Madison's
                                Madison’s confidential
                                                  confidential information to Pro-Tech.           Pro-Tech.
[Amended finding No. 3] ..................................................................................... 17

III. There is legally and factually
                          factually insufficient
                                    insufficient evidence
                                                 evidence to support the court's
                                                                         court’s
                               “Project” was the basis of the Agreement. ...... 17
factual finding No. 6 that the "Project"

IV. There is legally and factually
                          factually insufficient evidence
                                                 evidence to support the court's
                                                                           court’s
factual finding No. 7 that the language of the Agreement does not reflect that
services not related to the conversion process constituted trade secrets ........ 17

   There is legally
V. There      legally and
                        and factually
                                 factually insufficient
                                                 insufficient evidenceevidence to support  support the court's   court’s
factual finding No. 8 that  that there
                                     there was was no  no additional
                                                             additional consideration
                                                                               consideration provided by
Plaintiff to Defendant that would make non-"Project"        non-“Project” services covered by the
Agreement ............................................................................................................. 17

V. The
   The trial court erred by granting
                              granting Appellee's
                                         Appellee’s Plea to the           the Jurisdiction
                                                                                 Jurisdiction that
Appellant failed to bring suit in time ................................................................. 17


                                                            ii
                          factually insufficient evidence
VI. There is legally and factually               evidence to support the court's          court’s
factual finding
factual  finding No.       that the
                   No. 9 that     theservices
                                       services provided
                                                 provided by      by Defendant
                                                                          Defendant E.L.       E.L.
Hollingsworth are
Hollingsworth   are those
                    those known
                           known in the industry,
                                          industry, e.g., oil oil changes,
                                                                   changes, windshield
                                                                                    windshield
wiper  replacements, and
wiper replacements,    and do    not constitute
                            do not    constitute trade
                                                  trade secrets
                                                            secrets nor   nor confidential
                                                                                  confidential
information as intended by the Agreement ......................................................... 17

VII. There is legally and factually insufficient evidence
                                                 evidence to support the court’s
                                                                         court's
factual finding No. 10 that Plaintiff did not provide Defendant with a written
copy of its customer list and EL Hollingsworth is not a customer of Plaintiff 18

VIII. There is legally and factually insufficient evidence to support the court’s                           court's
factual finding
factual finding No.
                 No. 1111 that        Plaintiff isis not
                             that Plaintiff                        entitled to
                                                           not entitled                any of
                                                                                  to any        of the
                                                                                                     the profits
                                                                                                             profits
generated by Defendant
generated      Defendant for   for non-"Project"
                                      non-“Project” services    services Defendant
                                                                                Defendant provided provided to
E.L. Hollingsworth .................................................................................................18

IX. There is legally and factually insufficient evidence to support the court's       court’s
                                            attorney's fees ..................................29
finding no. 12 that Plaintiff did not incur attorney’s

             legally and
X. There is legally  and factually
                         factually insufficient
                                     insufficient evidenceevidence to support  support the court's   court’s
        finding No. 12 that
lack of finding         that Plaintiff
                             Plaintiff alleged
                                          alleged its entitlement
                                                             entitlement to attorney's attorney’s fees,
and the parties
and       parties agreed
                  agreed that
                          that attorney's
                               attorney’s fees            would be proven
                                                 fees would                 proven in aa separate  separate
          [Amended No. 12] ..................................................................................30
hearing. [Amended

XI. TheThe court
               court erred erred as   as a matter
                                               matter of         law in its
                                                            of law            its conclusion
                                                                                    conclusion of       of law
                                                                                                             law no. no. 1 thatthat
Defendant did not breach the Non-Disclosure Non Circumvention Agreement
..................................................................................................................................30

XII. The
     The court
          court erred
                   erred as as aa matter
                                  matter of
                                          of law
                                             law in  failing to
                                                  in failing  to find,
                                                                 find, or or in its lack  lack of
finding, that
finding,         Defendant’s failure
         that Defendant's          failuretoto turn  over the
                                               turn over    the profits,
                                                                 profits, benefits
                                                                                benefits and    and
proceeds of
proceeds       its commercial
           of its   commercial relationship
                                    relationship with    EL Hollingsworth
                                                   with EL    Hollingsworth does       does not  not
constitute breach
           breach of of fiduciary
                         fiduciaryduty.    [Additional no. 6] ....................................31
                                     duty. [Additional

            court erred
XIII. The court     erred as   as a matter
                                        matter of law in its conclusion     conclusion of       of law
                                                                                                    law no. 2 that    that
there is no
there    no language
             language in     inthetheNon-Disclosure
                                         Non-Disclosure Non           NonCircumvention
                                                                               Circumvention Agreement    Agreement
reflecting an intent that services not related to nor arising from the conversion
process constitute
process   constitute trade            secrets or
                           trade secrets             or confidential
                                                            confidential financial financial and     and business
                                                                                                               business
information .............................................................................................................31

XIV. The court erred as a matter of law in its conclusion of law no. 3 that the
             Non-Disclosure Non Circumvention Agreement
terms of the Non-Disclosure                       Agreement did not prohibit
                                                                iii
Defendant from entering into a business relationship with E.L. Hollingsworth
to provide mechanical services unrelated to the conversion process ...............31

XV. The
XV.  The court
         court erred
               erred asas a matter
                            matter of    law in its
                                      of law    its conclusion
                                                    conclusion of      of law
                                                                            law no. no. 4 thatthat
                          Plaintiffs’ trade secrets or confidential financial and
Defendant did not utilize Plaintiffs'
business information
business informationin  in entering
                           entering into       business relationship
                                       into a business      relationship with       with E.L. E.L.
Hollingsworth to provide mechanical services ....................................................31

XVI.The court
XVI.The     court erred
                  erred as
                         as aa matter
                               matter of
                                      of law
                                         law in      conclusion of
                                              in its conclusion  of law
                                                                    law no.
                                                                        no. 5 that that
Plaintiff’s claim for breach of contract fails for lack of consideration .............31
Plaintiff's

XVII. The court erred as a matter of law in its conclusion of law no. 6 that the
alleged trade secret information was readily ascertainable                     ascertainable by proper means,
such as availability in trade journals, reference books, or published materials
................................................................................................................................ 34

XVIII.The court erred as a matter of law in its conclusion of law no. 7 that the
alleged proprietary information was not substantially secret ...........................34

XIX.The court
XIX.The     court erred
                   erred as
                          as aa matter
                                matter of
                                       of law
                                          law in     conclusion of
                                              in its conclusion   of law
                                                                       law no. no. 8 thatthat
Plaintiff is not entitled to any damages, actual or punitive ..............................35
                                                                                           35

XX. The
XX.   The court
           court erred
                  erred as
                         as a matter
                               matter of          law in its
                                             of law           its conclusion
                                                                    conclusion of       of law
                                                                                             law no. no. 9 thatthat
Pursuant to
Pursuant    to §38.001
               §38.001 et
                        et seq.,    Tex. Civ.
                           seq., Tex.        Civ. Prac.
                                                      Prac. & Rem.    Rem. Code, Code, Plaintiff
                                                                                            Plaintiff is not
            attorney's fees.........................................................................................
entitled to attorney’s

PRAYER and CERTIFICATE OF SERVICE.........................................................
                          SERVICE                                                          37


APPENDIX:

Judgment (August 3, 2017) (Ex. A)




                                                                iv
                                                INDEX OF AUTHORITIES

Cases

         Nat'l Ins. Co. v. Paul, 927 S.W.2d
American Nat’l                                     S.W.2d 239,  239,245  245(Tex.
                                                                                (Tex.App.—Austin
                                                                                          App.-Austin 1996,
 writ denied) ...........................................................................................................32
                                                                                                                         32
Ames v. Ames, 776 S.W.2d 154, 158-159 (Tex. 1989), cert. denied, 494 U.S. 1080,
 110 S.Ct. 1809, 108 L. Ed. 2d 939 (1990) ...........................................................15
                                                                                                     15
                                                                                       14
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991) .....................14

Austin Hardwoods, Inc. v. Vanden Berghe, 917 S.W.2d         S.W.2d 320,  320,322  322(Tex.
                                                                                         (Tex.App.—El
                                                                                                 App.-E1
 Paso 1995, writ denied) ..................................................................... 16, 17, 18, 31
Besing v. Moffit, 882 S.W.2d
                      S.W.2d 79,
                             79, 81-82
                                 81-82(Tex.
                                       (Tex.App.—Amarillo 1994, no writ) ......14
                                            App.-Amarillo 1994,                14
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) .....................................................16
                                                                                                   16
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994) ...........................................14
                                                                                                14
Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007) ............16
                                                                                   16
City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005) ............................16
                                                                                           16
Estate of Judd, 8 S.W.3d 436
                         436 (Tex.
                             (Tex. App.—El Paso 1999,
                                   App.-E1 Paso 1999, no pet.)                         14
                                                         pet.).........................14

                                                                                  15
Ford Motor Co. v. Castillo, 444 S.W.3d 616, 620 (Tex. 2014) (op. on reh'g)........15

Hydrocarbon Management, Inc. v. Tracker Exploration, Inc., 861 S.W.2d 427, 431
(Tex. App.—Amarillo  1993, no
      App.-Amarillo 1993,  no writ) ............................................................... 16, 31

                                   (Tex.App.-El Paso 1999, no pet.) ............ 14, 15
In re Estate of Judd, 8 S.W.3d 436 (Tex.App.-E1

      King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951)......... 14,16
In re King’s

Kaye/Bassman Intern. Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 814
 (Tex.App.-Dallas 2010, pet. denied) ....................................................................29
                                                                                                         29

MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex.
                                                                                                                            14
 2009) .....................................................................................................................14

                                                              v
Mclemon v. Dynegy Inc., 347 S.W.3d 315 (Tex.                  (Tex. App.—
                                                                        App.—HoustonHouston [14th Dist.] 2011,
 no pet.) ..................................................................................................................29
                                                                                                                            29

Runnels v. Firestone, 746 S.W.2d 845, 849 (Tex.
                                           (Tex. App App—Houston
                                                            —Houston [14th Dist.], writ
 denied, 760 S.W.2d 240 (Tex. 1988) ...................................................................14
                                                                                                       14

Timmons v. Luce, 840 S.W.2d 582, 586 (Tex. App.—Tyler 1992, no writ) ...........14
                                                                                14

Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert                        cert.
 denied, 526 U.S. 1040 (1999)...............................................................................15
                                                                                                            15

Vickery v. Commission for Lawyer Discipline, 5 S.W.3d 241, 254 (Tex.App.—
  Houston [14th Dist.] 1999, pet. denied) ........................................................ 20, 33

Watson v. Prewitt, 159 Tex. 305, 305, 320 S.W.2d 815, 816 (1959) ......................16
                                                                                       16

Zac Smith & Co. v. Otis Elevator Co., 734 S.W.2d 662, 666 (Tex. 1987) .............15
                                                                                   15


Statutes

Tex. Civ. Prac. & Rem. Code § 134A.002(6).
                              134A.002(6) .........................................................28

Rules

Tex. R. App. P. 43.3................................. ................................................................. 16

Tex. R. Civ. Proc. 93(9) ........................... .................................................................29




                                                             vi
                               STATEMENT OF THE CASE

       This aa suit
       This     suitfor
                      forbreach
                           breachofof a Non-Disclosureand
                                    a Non-Disclosure    andNon-Circumvention
                                                             Non-Circumvention

Agreement. Appellant,
Agreement. Appellant, EJ
                      EJ Madison,
                         Madison, LLC,
                                  LLC, alleged
                                       alleged claims
                                               claims for breach
                                                          breach of contract,
                                                                    contract,

breach of fiduciary
breach    fiduciary duty and
                         and misappropriation
                             misappropriation of trade secrets
                                              of trade secrets under the Texas
                                                                         Texas

Uniform Trade
Uniform Trade Secrets
              SecretsAct
                      Act(“TUTSA”).
                          ("TUTSA"). (CR
                                      (CR I,I, 22). The parties
                                               22). The parties tried
                                                                 tried the
                                                                       the case
                                                                           case

nonjury on June 20, 2017 and which time the trial court rendered judgment for the

           On August
defendant. On August 3,
                     3, 2017, the trial court entered
                                              entered judgment.
                                                      judgment. (CR I, 28).

       On August
          August 23, 2017, Appellant
                           Appellant filed
                                     filed its Request
                                               Request for Findings
                                                           Findings of Fact and

Conclusions of Law and on August 30, 2017 its Motion for New Trial. (CR I, 29,
Conclusions

31). On
31).  OnSeptember
         September 19,
                   19, 2017,
                       2017, in
                              in absence
                                  absence of
                                          of findings
                                              findings by the trial
                                                              trial court
                                                                    court (due by

September 12, 2017), Appellant
September            Appellant filed
                               filed its
                                     its Notice
                                         Notice of Past Due Findings of Fact and

Conclusions of
            of Law.
               Law. (CR I, 33).

       On November 1, 2017, Appellant
                            Appellant filed
                                      filed its
                                             its Notice
                                                 Notice of
                                                        of Appeal.
                                                           Appeal. (CR I, 35).

       On March 8, 2018, the trial court filed its Findings of Fact and Conclusions

of Law, and on March 19, 2018, Appellant filed its Request for Amended Findings

                           Law.1 (CR
of Fact and Conclusions of Law.1  (CR II, 4, 8).




       1
       1 On January      26, 2018, in the absence of the filing of findings of fact and conclusions of
         the trial
law by the    trial court,
                     court, Appellant
                            Appellant filed
                                       filed its
                                              its Opposed
                                                  Opposed Motion
                                                           Motion to
                                                                   to Abate
                                                                      Abate Appeal,
                                                                             Appeal, Alternatively,
                                                                                      Alternatively, to
Extend   Time
Extend Time      to File Appellant’s
                         Appellant's  Brief   which  this Court granted
                                                                granted by order on  February 8, 2018
                                                                                     February
(further ordering that the trial court file its findings on or before March 20, 2018).
                                                     vii
                               ISSUES PRESENTED

Whether here
Whether   here is legally and factually insufficient
                                         insufficient evidence
                                                      evidence to
                                                                to support
                                                                   support the
                                                                           the court’s
                                                                               court's
                     the introduction
lack of finding that the  introduction of EL
                                          EL Hollingsworth
                                              Hollingsworth to
                                                             to Pro-Tech
                                                                 Pro-Tech constituted
                                                                           constituted
disclosure of EJ Madison’s
                 Madison's confidential information to Pro-Tech.

Whether there is legally and factually insufficient
Whether                                  insufficient evidence
                                                      evidence to
                                                               to support
                                                                  support the
                                                                          the court’s
                                                                              court's
factual finding No. 6 that the “Project”
                               "Project" was the basis of the Agreement.

Whether there is legally and factually insufficient
Whether                                  insufficient evidence
                                                      evidence to
                                                               to support
                                                                  support the
                                                                           the court’s
                                                                               court's
factual finding
factual finding No.
                 No. 77 that the
                              the language
                                   language of the
                                                the Agreement
                                                    Agreement does not reflect
                                                                          reflect that
                                                                                  that
services not related to the conversion process constituted trade secrets.

Whether here
Whether    here is legally and factually insufficient
                                          insufficient evidence
                                                       evidence to
                                                                 to support
                                                                    support the
                                                                            the court’s
                                                                                court's
factual finding
factual  finding No.      that there
                   No. 8 that   there was
                                       was no
                                            noadditional
                                                additional consideration
                                                            consideration provided
                                                                          provided by
Plaintiff to Defendant
Plaintiff     Defendant that
                          that would
                                would make
                                        make non-"Project"
                                              non-“Project” services
                                                              services covered
                                                                        covered by
                                                                                by the
Agreement.

Whether there is legally and factually insufficient
Whether                                  insufficient evidence
                                                      evidence to
                                                               to support
                                                                  support the
                                                                           the court’s
                                                                               court's
                           the services
factual finding No. 9 that the services provided
                                         provided by
                                                   by Defendant
                                                       Defendant E.L.
                                                                  E.L. Hollingsworth
                                                                       Hollingsworth
                        industry, e.g., oil
are those known in the industry,        oil changes,
                                            changes, windshield
                                                     windshield wiper replacements,
                                                                        replacements,
and do not constitute trade secrets nor confidential information as intended by the
Agreement.

Whether there is legally and factually insufficient
Whether                                  insufficient evidence
                                                      evidence to
                                                               to support
                                                                  support the
                                                                          the court’s
                                                                              court's
factual finding No. 10 that Plaintiff did not provide Defendant with a written copy
of its customer list and EL Hollingsworth is not a customer of Plaintiff.

Whether there is legally and factually insufficient
Whether                                   insufficient evidence
                                                        evidence to
                                                                  to support
                                                                     support the
                                                                              the court’s
                                                                                  court's
factual finding No. 11 that Plaintiff is not entitled to any of the profits generated by
               non-“Project” services Defendant provided to E.L. Hollingsworth.
Defendant for non-"Project"

Whether there is legally and factually insufficient
Whether                                   insufficient evidence
                                                       evidence to
                                                                to support
                                                                   support the
                                                                           the court’s
                                                                               court's
finding no. 12 that Plaintiff did not incur attorney’s
                                            attorney's fees.

Whether there is legally and factually insufficient
Whether                                  insufficient evidence
                                                      evidence to
                                                                to support
                                                                   support the
                                                                           the court’s
                                                                               court's
lack of finding No. 12 that Plaintiff alleged its entitlement
                                                  entitlement to
                                                               to attorney’s
                                                                  attorney's fees, and
the parties agreed that attorney’s
                        attorney's fees would be proven in a separate hearing.



                                          viii
Whether the
Whether  the court
             court erred
                    erred as
                          as aa matter
                                matter of
                                       of law
                                          law in its conclusion
                                                     conclusion of
                                                                of law
                                                                   law no.   that
                                                                       no. 1 that
Defendant did not breach the Non-Disclosure Non Circumvention Agreement.

Whether the
Whether    the court
               court erred
                      erredas
                            as aa matter
                                  matter of
                                          of law
                                             law in
                                                 in failing
                                                    failing toto find,
                                                                 find, or
                                                                       or in      lack of
                                                                           in its lack
finding, that Defendant’s
finding,                                             profits, benefits and proceeds of
              Defendant's failure to turn over the profits,
    commercial relationship
its commercial   relationship with       Hollingsworth does
                              with EL Hollingsworth     does not constitute
                                                                    constitute breach of
fiduciary duty.

Whether the court erred as a matter of law in its conclusion of law no. 2 that there
                       Non-Disclosure Non Circumvention Agreement reflecting an
is no language in the Non-Disclosure
intent that services not related to nor arising from the conversion process constitute
trade secrets or confidential financial and business information.

Whether the
Whether  the court
             court erred
                   erred as
                         as a matter
                              matter of law in its conclusion
                                                   conclusion of law no. 3 that the
terms of the
terms     the Non-Disclosure
               Non-Disclosure Non
                               Non Circumvention
                                     Circumvention Agreement
                                                       Agreement did   not prohibit
                                                                  did not  prohibit
Defendant from
Defendant  from entering
                entering into a business
                                business relationship
                                           relationship with E.L.
                                                             E.L. Hollingsworth
                                                                  Hollingsworth to
provide mechanical services unrelated to the conversion process.

Whether the
Whether  the court
             court erred
                    erred as
                           as aa matter
                                 matter of
                                         of law
                                            law in its conclusion
                                                        conclusion ofof law
                                                                        law no.     that
                                                                             no. 4 that
Defendant did
Defendant      not utilize
           did not  utilize Plaintiffs'
                            Plaintiffs’ trade
                                         trade secrets
                                                secrets or
                                                        or confidential
                                                            confidential financial
                                                                          financial and
                                                                                    and
business information
business  informationinin entering
                             entering into
                                         into aa business
                                                   business relationship
                                                              relationship with
                                                                             with E.L.
                                                                                    E.L.
Hollingsworth to provide mechanical services.

Whether the
Whether     the court
                 court erred
                       erred as
                              as aa matter
                                    matter of
                                           of law
                                              law in its conclusion
                                                          conclusion ofof law
                                                                          law no.   that
                                                                              no. 5 that
Plaintiff’s claim
Plaintiff's  claim for
                   for breach
                       breach of contract fails for lack of consideration.

Whether the
Whether   the court
               court erred
                     erred as
                           as a matter
                                 matter of law in its conclusion
                                                      conclusion of law no. 6 that the
alleged trade secret information was readily ascertainable by proper means, such as
availability in trade journals, reference books, or published materials.

Whether the
Whether   the court
              court erred
                    erred as
                          as a matter
                               matter of law in its conclusion
                                                    conclusion of law no. 7 that the
alleged proprietary information was not substantially secret.

Whether the
Whether     the court
                court erred
                       erred as
                              as aa matter
                                    matter of
                                           of law
                                              law in its conclusion
                                                         conclusion of
                                                                    of law
                                                                       law no.   that
                                                                           no. 8 that
Plaintiff is not entitled to any damages, actual or punitive.

Whether the
Whether   the court
               court erred
                     erred as
                           as aa matter
                                 matter of
                                        of law
                                           law in its conclusion
                                                      conclusion of
                                                                 of law
                                                                    law no.    that
                                                                        no. 9 that
Pursuant to §38.001 et seq., Tex. Civ. Prac. & Rem. Code, Plaintiff is not entitled
to attorney’s
   attorney's fees.


                                           ix
                            STATEMENT OF FACTS

          Madison, LLC ("EJ
       EJ Madison,     (“EJ Madison")
                            Madison”) is a trucking
                                            trucking company
                                                     company formed in 2008.
                                                                       2008.

              Shortly thereafter,
(RR III, 57). Shortly  thereafter, itit began
                                        began doing
                                              doing business
                                                    business with
                                                             with Pro-Tech Diesel, Inc.

(“Pro-Tech”) to perform
("Pro-Tech")    perform maintenance
                        maintenancework
                                    workon
                                         onEJ
                                           EJMadison’s
                                              Madison's two
                                                         two trucks.
                                                              trucks. (RR III,

57-58, 117).
57-58,        Pro-Tech had
       117). Pro-Tech  had one
                           one 11 to
                                   to22employees
                                        employees including
                                                   including owner
                                                             owner Richie
                                                                   Richie Rivera
                                                                          Rivera

(“Rivera”). (RR
("Rivera").  (RR III,
                  III, 57-58;
                        57-58; 117,
                               117, 142).
                                    142). The
                                           Thetwo
                                               twocompanies
                                                   companies continued
                                                              continued to do
                                                                        to do

business with,
         with, and
               and grow
                   grow alongside,
                        alongside,each
                                   eachother
                                        otherinto
                                              into2014.
                                                   2014. (RR
                                                         (RR III,
                                                             III, 57-58,
                                                                  57-58, 117).
                                                                         117). At

              Madison had acquired
that time, EJ Madison     acquired forty-five
                                   forty-five (45) trucks
                                                   trucks and some ninety (90)

trailers.   (RR III, 58,
            (RR      58, 117-118).
                         117-118). EJ
                                    EJMadison
                                       Madison was
                                                wasone
                                                    oneofofPro-Tech'
                                                            Pro-Tech’ss largest
                                                                         largest

customers. (RR
customers. (RR III, 118).

       In late 2012, early 2013, EJ Madison began to explore the use of duel fuels

(diesel and
(diesel and natural
            natural gas)
                    gas) on               save fuel
                         on its trucks to save fuel costs
                                                    costs and
                                                          and because
                                                              because natural
                                                                      natural gas

burns cleaner. (RR III, 58-59).
      cleaner. (RR

       EJ Madison's
          Madison’s manager,
                    manager, John
                             John Warren
                                  Warren ("Warren")
                                         (“Warren”) approached
                                                    approached Rivera about

working together
        together on
                 on “dual
                    "dual fuel
                          fuel conversion.”
                               conversion." (RR III, 59). The
                                                          The two
                                                               two companies
                                                                   companies had

  good business
a good business relationship.
                relationship. Nevertheless,
                              Nevertheless, Warren
                                            Warren requested
                                                   requested that Rivera
                                                                  Rivera enter
                                                                         enter

       non-disclosure non-circumvent
into a non-disclosure non-circumventagreement
                                     agreementon
                                               onbehalf
                                                  behalfof
                                                         ofPro-Tech.
                                                           Pro-Tech. (RR III,

59-60). EJ
59-60).  EJMadison
           Madison and
                    and Pro-Tech
                         Pro-Tech entered
                                   entered into
                                            into the
                                                  the Agreement
                                                      Agreement on
                                                                on February
                                                                   February 25,

       (RRIV,
2013. (RR  IV,Plt.'
              Plt.’s  Ex. 1)
                    s Ex. 1) (RR
                             (RR III,
                                 III, 67)
                                      67) ("Non-Disclosure
                                          (“Non-Disclosure and Non-Circumvention

Agreement”) (the “Agreement”).
Agreement")      "Agreement").



                                          1
      Warren had used and entered into similar agreements in business for many

years. (RR
years.  (RR III,
             III, 61-62).
                  61-62). This
                           Thistype
                                typeofofagreement
                                         agreement was
                                                   was important
                                                        important for
                                                                  for EJ
                                                                      EJ Madison
                                                                         Madison in

              because Warren
this instance because Warren wanted
                             wanted to ensure he protected
                                                 protected the development
                                                               development of

any intellectual property and, further, to protect the introduction by EJ Madison to

Pro-Tech of EJ Madison's
               Madison’s valuable
                         valuable business
                                  business relationships
                                           relationships which it had developed
                                                                      developed

   considerable expense.
at considerable          (RR III, 62). Additionally,
                expense. (RR           Additionally, Pro-Tech
                                                     Pro-Tech stood
                                                              stood to benefit not

          performing installation
only from performing installation of the technology
                                         technology specifically
                                                    specifically but through
                                                                     through the

introduction to other companies,
introduction          companies, including
                                 including trucking
                                           trucking companies,
                                                    companies, with whom Pro-

Tech might
Tech might do business, generally.
           do business,            (RR III,
                        generally. (RR III, 62-63).
                                            62-63). Finally,
                                                     Finally, Rivera
                                                              Rivera also
                                                                      also

participated as
             as aa partner.
                   partner. (RR III, 63).

      The Agreement provides in pertinent part:

             Pro Tech
             Pro  Tech and
                         and EJM
                             EJM have
                                    have entered
                                           entered into
                                                    into discussions
                                                          discussions with
                                                                       with each
                                                                             each
      other in
      other  in connection
                 connection with
                             with prospective
                                   prospective business
                                                 business arrangements
                                                            arrangements and/or
                                                                           and/or
      opportunities involving
                     involving the
                               the following
                                    following commercial
                                                commercial project:
                                                             project: conversion
          trucks, including
      of trucks,   including without
                              without limitation,
                                        limitation, trucks
                                                     trucks owned
                                                             owned by EJM/its
                                                                         EJM/its
      related companies, from diesel powered operation to dual CNG/Diesel
      powered operation (the “Project”).
                               "Project").

        Plt.’ss Ex. 1)
(RR IV, Plt.'       1) (Recitals
                        (Recitals 91
                                  ¶ 1);
                                     1); (RR
                                          (RR III,
                                               III, 65-66). Ultimately, however,
                                                    65-66). Ultimately, however, EJ

Madison ruled-out Compressed Natural Gas (“CNG”)
                                         ("CNG") in favor of Liquified Natural

Gas ("LNG").
Gas (“LNG”). Warren
             Warren explained
                    explained that such a change
                                          change is typical
                                                    typical in the
                                                               the course
                                                                   course of

development of aa project.
                  project. (RR III, 66-67).

      After entering
      After entering into
                     into the
                           the Agreement
                               Agreement with
                                         with Pro-Tech,
                                              Pro-Tech, EJ
                                                        EJ Madison
                                                           Madison began
                                                                    began

cultivating relationships with
                          with other
                               other companies.
                                     companies. (RR III, 67).
                                            2
                                      significant time and expense
      In particular, EJ Madison spent significant          expense developing
                                                                   developing a

relationship with
relationship         Hollingsworth and
             with EL Hollingsworth and Company
                                       Company ("EL
                                                (“EL Hollingsworth"),
                                                     Hollingsworth”), a

“substantial transportation company"
"substantial                company” with several hundred trucks nationwide (RR

III, 67;
III, 67; 69-70,
         69-70, 139).  Onororabout
                139). On      aboutAugust
                                    August 24,
                                            24, 2013,
                                                 2013, EJ
                                                        EJ Madison
                                                           Madison and
                                                                   and EL
                                                                       EL

Hollingsworth entered
Hollingsworth entered into
                      into aa "Confidentiality
                               “Confidentiality and
                                                and Non-Disclosure
                                                    Non-Disclosure Agreement"
                                                                   Agreement”

(“ELH Agreement").
("ELH Agreement”). (RR IV, Plt.'
                           Plt.’ss Ex.
                                   Ex. 2).  ELHollinsworth
                                       2). EL  Hollinsworth was
                                                            was interested
                                                                 interested in

converting trucks
converting trucks in
                  in its fleet to duel
                                  duel fuel
                                       fuel and
                                            and purchasing
                                                purchasing conversion
                                                           conversion kits from EJ

Madison as its customer. (RR III, 65, 68). ItIt was
                                                was only
                                                    only after
                                                         after entering
                                                               entering into the ELH

Agreement that EJ Madison
Agreement         Madison introduced
                          introduced Pro-Tech to EL
                                                 EL Hollingsworth.
                                                    Hollingsworth. (RR III,

67). Later,
     Later,EL
            ELHollingsworth
              Hollingsworth became
                            became interested
                                   interested in being a financial
                                                         financial partner. (RR

          Warrenwould
III, 68). Warren wouldnot
                       nothave
                           haveintroduced
                                introduced Pro-Tech
                                            Pro-Tech to
                                                      to EL
                                                         EL Hollingsworth
                                                            Hollingsworth had

Pro-Tech not entered into the Agreement. (RR III, 69).

      Warren explained
      Warren explained that    business when
                       that in business when aa company
                                                 company spends
                                                          spends considerable
                                                                  considerable

time and money developing relationships and customers, it must ensure it protects

its investment from being circumvented because the right introduction “quite
                                                                      "quite often

launches that
launches that business
              business and
                       and makes
                           makes that
                                 that business
                                      business into
                                                into the
                                                      the success
                                                          success that
                                                                   that itit is."
                                                                             is.” Id.

Therefore, it is imperative
Therefore,        imperative to protect
                                protect customer
                                        customer and
                                                 and contractual
                                                      contractual relationships.
                                                                   relationships. Id.

Additionally, the expense of development of business
Additionally,                               business and
                                                     and customer
                                                         customer relationships
                                                                  relationships

often results
often results in
               in the
                   thefurther
                        furtherintroduction
                                 introduction and
                                               anddevelopment
                                                   development of
                                                                ofcontractual
                                                                   contractual

relationships which are lucrative in and of themselves. Id.


                                         3
      Here, EJ Madison, including Warren himself, developed a unique a system,

called a conversion
         conversion kit,
                    kit, which
                         which displaced
                               displaceddiesel
                                         dieselfuel
                                                fuelfor
                                                     fornatural
                                                         naturalgas.
                                                                 gas. Natural gas is

     expensive and
less expensive and burns
                   bums cleaner
                         cleaner all
                                 all without
                                     without sacrificing
                                             sacrificing performance.
                                                         performance. It did so by

coalescing electronic
coalescing electronic control
                      control module,
                              module, fuel
                                      fuel injection
                                           injection and tank technologies
                                                     and tank  technologies to

become the only high-displacement system (over 50%) to obtain EPA certification.

(RR III, 70-72).

      Beginning in
      Beginning               EL Hollingsworth
                in July 2014, EL Hollingsworth began
                                               began operating
                                                     operating EJ Madison's
                                                                  Madison’s

fleet of trucks
fleet     trucks out
                 out of
                     of Anthony,
                        Anthony, Texas,
                                 Texas, 35 of
                                           of which
                                              which were
                                                    were equipped
                                                          equipped with
                                                                   with the
                                                                        the

conversion kits.
conversion        (RR III,
           kits. (RR   III, 72-73).
                            72-73). EL
                                     ELHollingsworth
                                        Hollingsworth operated
                                                      operated the
                                                               the trucks
                                                                   trucks on duel
                                                                             duel

     pursuant to contracts
fuel pursuant    contracts EJ Madison
                              Madison had
                                      had developed
                                          developed with
                                                    with natural
                                                         natural gas
                                                                 gas provider
                                                                     provider

Clean Energy.
Clean          (RR III,
      Energy. (RR   III, 73).
                          73). Additionally,
                                Additionally,EL
                                              ELHollingsworth
                                                 Hollingsworth entered
                                                               entered into
                                                                       into a

business relationship with Clean Fuel Technologies, LLC (“CFT”)
                                                        ("CFT") and Clean Fuel

Technologies, II,
Technologies, II, LLC
                  LLC (“CFT II”), successor
                      ("CFT II"), successor companies to EJ Madison,
                                                            Madison, whereby
                                                                     whereby

EL Hollingsworth
   Hollingsworth (and/or
                  (and/orits
                          its principals)
                              principals)became:
                                          became: (1) aa buyer
                                                          buyer of/customer
                                                                 of/customer for

conversion kits; (2)
                 (2) aa financial
                        financial contributor;
                                  contributor;and
                                               and(3)
                                                   (3)including
                                                       includingasasaapartner.
                                                                       partner. (RR III,

74-75). Rivera
74-75).  Riveratoo
                toobecame
                    becameaapartner
                             partner in
                                      inCFT
                                        CFT which
                                            which owned
                                                  owned aa portion
                                                           portion of CFT
                                                                      CFT II.

(RR III, 76, 95).

      CFT II incurred
      CFT     incurred significant
                       significant expenses
                                   expenses for improvements to
                                            for improvements  to a property
                                                                   property in

Anthony, Texas (the "property")
                    “property”) from which Pro-Tech benefited because it began




                                           4
conducting business
conducting businessfrom
                    fromthat
                         thatlocation
                              locationand
                                       andcontinues
                                           continuestotododoso.
                                                             so. (RR III, 72, 73,

75-78).

      Beginning on or about August 1, 2014,
                                      2014, Pro-Tech
                                            Pro-Tech began
                                                     began performing
                                                           performing general

maintenance work
maintenance work for    Hollingsworth including
                 for EL Hollingsworth including on
                                                on the former
                                                       former EJ
                                                              EJ Madison
                                                                 Madison

trucks and
trucks     those equipped
       and those equipped with
                          with the
                               the conversion
                                   conversionkits.  Rivera never
                                              kits. Rivera never sought
                                                                 sought EJ
                                                                        EJ

Madison’s authority,
Madison's authority, written or otherwise,
                                otherwise, to do
                                              do business
                                                 business with
                                                          with EL
                                                               EL Hollingsworth
                                                                  Hollingsworth

unrelated to
unrelated  to the
              the project.  (RR III,
                  project. (RR   III, 78).
                                       78).Warren
                                            Warrenneither
                                                    neithermade
                                                            maderepresentations
                                                                  representations

beyond the terms of the Agreement prior to it being executed nor did he verbally
                                                                        verbally

authorize Pro-Tech
authorize Pro-Tech to do business with EL
                                       EL Hollingsworth
                                          Hollingsworth by performing
                                                           performing general
                                                                      general

             (RR III,
maintenance. (RR III, 158-160)

      On May 11, 2015, EJ Madison
                          Madison made written demand on Pro-Tech
                                                         Pro-Tech pursuant

   the terms
to the  terms of
              of the
                  the Agreement
                      Agreement and
                                and the
                                     the provisions
                                          provisions of
                                                     of the
                                                         the Texas
                                                             Texas Uniform
                                                                   Uniform Trade
                                                                           Trade

Secrets Act
Secrets Act (“TUTSA”).
             ("TUTSA"). (RR
                         (RR III,
                              III, 80-81);
                                   80-81);(RR
                                           (RRIV,
                                               IV,Plt.’s
                                                   Plt.'s Ex.
                                                          Ex. 3).  Rivera
                                                              3). Rivera

acknowledged receiving the demand letter (RR III, 140).

      EJ Madison
         Madison maintenance
                 maintenance records
                             records reflect
                                     reflect that
                                             that Pro-Tech
                                                  Pro-Tech ceased
                                                           ceased providing
                                                                   providing

maintenance for
maintenance for EJ Madison
                   Madison in mid July 2014,
                                       2014, the
                                             the same
                                                 same time
                                                       time EL
                                                            EL Hollingsworth
                                                               Hollingsworth

assumed operations
assumed operationsof
                   ofthe
                      theEJ
                         EJ Madison
                            Madisonfleet.
                                    fleet. (RR
                                           (RR III,
                                               III, 82);
                                                    82); (RR
                                                         (RR IV,
                                                             IV, Plt.’s
                                                                 Plt.'s Ex. 4).

       Madison maintenance
The EJ Madison maintenance records
                           records for     fleet (of
                                   for the fleet (of approximately
                                                     approximately 45 trucks)
                                                                      trucks)

beginning January
beginning January 1,
                  1, 2013 through December
                     2013 through December 2014
                                           2014 (ending
                                                (ending on
                                                        on July     2014)
                                                           July 19, 2014)

totaled $312,166.04
        $312,166.04 for
                    for an
                        an average
                           average of
                                   of$16,429.79
                                      $16,429.79per
                                                 permonth. (RR III, 81-82); (RR
                                                    month. (RR


                                       5
    Plt.’s Ex.
IV, Plt.'s Ex. 4).
               4). Additionally,
                    Additionally,Pro-Tech'
                                  Pro-Tech’s own invoicing
                                           s own  invoicing records
                                                            records for
                                                                    for maintenance
                                                                        maintenance

provided to EL Hollingsworth,
provided       Hollingsworth, beginning
                              beginning July     2014 and
                                        July 21, 2014 and extending
                                                           extending through
                                                                      through

May 22, 2015, reflect a total of $212,290.09, for an average monthly revenue paid

by EL Hollingsworth
      Hollingsworth of
                    of $21,229.09.  (RR III,
                       $21,229.09. (RR  III, 83,
                                             83, 140-141);
                                                 140-141); (RR IV, Plt.’s
                                                                   Plt.'s Ex. 5).

This number
This number is consistent
               consistent with
                          with the amount incurred
                               the amount incurred by
                                                   by EJ Madison
                                                         Madison prior
                                                                 prior to EL

Hollingsworth assuming
Hollingsworth  assumingoperations.
                        operations.(RR
                                    (RRIII,
                                        III,82-83,
                                             82-83,141).     Madison, at its
                                                    141). EJ Madison,

highest point,
highest        compromised 10
        point, compromised  10 to  15 percent
                                to 15  percent of
                                                of Pro-Tech'
                                                    Pro-Tech’ss business
                                                                business or
                                                                         or

approximately 2.5 million
                  million dollars
                          dollars in
                                  in annual
                                     annual sales.
                                            sales. (RR III, 141-143).

       If Pro-Tech
       If  Pro-Tech had
                    had approached
                         approached Warren
                                    Warren about
                                           about doing
                                                 doing business
                                                       business with
                                                                with EL
                                                                     EL

Hollingsworth, Warren
Hollingsworth, Warren would
                      would have
                            have negotiated
                                 negotiated aa "win/win"
                                               “win/win” agreement
                                                         agreement to allow
                                                                      allow

Pro-Tech to
Pro-Tech to profitably
            profitably do
                       do business. (RR III, 87,
                          business. (RR      87, 165-166).
                                                 165-166). Non-disclosure
                                                           Non-disclosure non-
                                                                          non-

circumvention agreements
circumvention  agreementsdo
                          donot
                             not “spell
                                 "spell out”
                                        out" the terms in advance
                                             the terms    advance because
                                                                  because the

parties need to be free to fully explore
                                 explore any
                                         any future
                                             future opportunities
                                                    opportunitiesas
                                                                  as they
                                                                      theyoccur.
                                                                          occur. (RR

III, 167).

       Stuart Mitchell ("Mitchell"),
                       (“Mitchell”), an attorney who primarily consults with young

developing businesses,
           businesses, testified
                       testified as an expert concerning covenants not to compete

and confidentiality and non-circumvention
                        non-circumvention agreements.
                                          agreements. (RR III, 15-16, 17).

       While covenants
       While covenants not     compete are
                       not to compete   are narrowly
                                             narrowly construed
                                                       construed because
                                                                 because they
                                                                          they

constrain productive
constrain productive activity, non-circumvention
                               non-circumvention agreements
                                                 agreements and confidentiality
                                                                 confidentiality

agreements are
agreements     broadly construed,
           are broadly construed, but narrowly drawn,
                                  but narrowly drawn, to
                                                      to protect
                                                          protect intellectual
                                                                   intellectual


                                         6
property and business practices of the protected party against abuse and unethical
                                                                         unethical

behavior by
         by the
            the party
                party one
                      oneisisdoing
                              doingbusiness
                                    businesswith.
                                             with. (RR III, 16-17). Non-disclosure
                                                            16-17). Non-disclosure

    non-circumvention agreements
and non-circumvention agreements are
                                 are broadly construed because
                                     broadly construed because they protect
                                                                    protect

things known
things known to     parties —
             to the parties — the
                               the protected
                                    protected party's
                                              party’s interest
                                                       interest in
                                                                 in his
                                                                     his contractual
                                                                          contractual

agreements, his
agreements,     customers, his financing
            his customers,     financing sources
                                         sources — things considered secret and

             (RR III,
proprietary. (RR III, 17, 168-170).

          confidentiality provisions
      The confidentiality provisions of these agreements
                                              agreements are necessary to protect

against the dissemination
against     dissemination of protected
                              protected information,
                                         information, and
                                                      and the
                                                           thenon-circumvention
                                                               non-circumvention

provisions “establish
provisions  "establishaa bond
                         bond of loyalty between
                              of loyalty between two parties who
                                                 two parties who are
                                                                 are doing
                                                                      doing

business”—for example, to prevent one party from
business"—for                               from doing
                                                 doing business
                                                       business with
                                                                with the
                                                                     the other’s
                                                                         other's

customer (RR
customer          18-19). Customers
         (RR III, 18-19).  Customersare
                                     areuniversally
                                         universallyconsidered
                                                     considered confidential
                                                                 confidential

information. (RR
information. (RR III, 19).

      Mitchell reviewed
      Mitchell reviewed the Agreement,
                            Agreement, the ELH Agreement,
                                               Agreement, the depositions
                                                              depositions of

Warren and
Warren and Rivera
           Rivera and
                  and the plaintiff’s exhibits.
                      the plaintiff's            In Mitchell's
                                      exhibits. In   Mitchell’s opinion,
                                                                 opinion, the
                                                                           the

Agreement in the first instance protected EJ Madison against Pro-Tech developing

business with EJ Madison's
                 Madison’s contacts
                           contacts and
                                    and customers
                                        customers without
                                                  without first negotiating
                                                                negotiating with

EJ Madison
EJ Madison as
            as to
                to how
                   how that
                        that should
                             shouldbe
                                    bedone.  (RR III,
                                       done. (RR III, 19-20).
                                                      19-20). He
                                                              He found
                                                                  found the
                                                                        the

Agreement to be “a
                "a very standard confidentiality,
                                 confidentiality, non-disclosure
                                                  non-disclosureagreement.”
                                                                 agreement." (RR

III, 20-21).




                                         7
      Additionally, while
      Additionally,       the Agreement
                    while the  Agreement described
                                          described confidential
                                                     confidential information
                                                                   information

broadly, the categories of confidential
broadly,                   confidential information
                                        information of particular
                                                       particular relevance
                                                                  relevance to this

transaction were
transaction      financing sources,
            were financing sources, contractual
                                    contractual relationships
                                                relationships and customers of
                                                              and customers

which EL Hollingsworth
         Hollingsworth was
                       was one.
                           one. (RR
                                (RR III,
                                     III, 22-24).    Madison’s relationship with
                                          22-24). EJ Madison's

EL Hollingsworth, and the subject of the ELH Agreement, represented a protected

“contractual relationship”
"contractual relationship"asasdefined
                               definedininthe
                                           theAgreement.
                                               Agreement. (RR
                                                          (RR III,
                                                              III, 24). In fact,
                                                                   24). In fact, the

mere disclosure
mere disclosure of  the identity
                of the   identity ofofEL
                                       ELHollingworth
                                           Hollingworthconstituted
                                                         constituted protected
                                                                      protected

customer/client information
customer/client information consistent
                            consistent with
                                       with definitions
                                            definitions and protection under
                                                        and protection under the

       (RR III, 24-25).
TUTSA. (RR

                     maintaining the
      In addition to maintaining the confidentiality
                                     confidentiality of protected
                                                        protected information,
                                                                  information, the

Agreement restricted
Agreement  restricteduse
                      use of
                          of the information by
                             the information        receiving party
                                             by the receiving party except
                                                                    except as

permitted in
permitted in the Agreement.  (RRIII,
                 Agreement. (RR  III,25-26);
                                      25-26);(RR
                                              (RRIV,
                                                  IV,Plt.'s
                                                      Plt.’sEx.
                                                             Ex.1)1)(Recitals
                                                                     (Recitals91¶ 3,

Agreement ¶911).
              1). The
                  The Agreement
                      Agreement restricted
                                restricted use
                                           use of the confidential information to

“project-related business,”
"project-related  business,"i.e.,
                              i.e.,Pro-Tech
                                    Pro-Tech“was
                                             "wasnot
                                                  notpermitted
                                                      permittedtoto use
                                                                    use the EL
                                                                        the EL

Hollingsworth contact
Hollingsworth  contactfor
                       foranything
                           anythingoutside
                                    outsidethe
                                            theproject.”
                                                project." (RR
                                                          (RR III,
                                                              III, 26); (RR IV,

Plt.’s Ex.
Plt.'s Ex. 1)
           1) (Agreement
               (Agreement 91
                          ¶ 1(d)).
                             1(d)). Furthermore, the Agreement provided that Pro-

Tech could
Tech could not
           not independently
                independently develop
                              develop business
                                      business with    Hollingsworth as
                                               with EL Hollingsworth as its

identity is
identity is itself
            itself confidential
                   confidentialinformation.
                                information.(RR
                                             (RR III,
                                                  III, 26);
                                                       26); (RR
                                                            (RR IV,
                                                                IV, Plt.’s Ex. 1)
                                                                    Plt.'s Ex.

(Agreement ¶911(e)).
(Agreement     1(e)). A
                      A non-circumvention
                        non-circumvention provision
                                          provision isis usual
                                                         usual and
                                                               and customary
                                                                   customary in a

non-disclosure non-circumvention
               non-circumvention agreement.
                                 agreement. (RR III, 26-27).


                                         8
      Here, Pro-Tech initially did EJ Madison-related business with Hollingsworth

but later went well beyond project-related business without obtaining authorization

from EJ Madison. (RR III,
        Madison. (RR III, 31-32).
                          31-32). In
                                   Indoing
                                      doingso,
                                            so,Pro-Tech
                                               Pro-Tech wrongfully
                                                        wrongfully obtained the

profits from doing business with EL Hollingsworth while denying EJ Madison any

benefit for
benefit for having
            having made
                   madethe
                        theintroduction.
                            introduction.(RR
                                          (RRIII,
                                              III,32).   Mitchell testified
                                                   32). Mitchell   testified that
                                                                             that

introductions often
introductions  oftenproduce
                     produce“found
                             "foundmoney”
                                    money"for
                                           forthe
                                               thereceiving
                                                   receivingparty:  “When I
                                                             party: "When

introduce you
introduce you to somebody
                 somebody I’m doing business
                          I'm doing business with,
                                             with, now
                                                   now you
                                                       you have
                                                           have completely
                                                                 completely

found money
      money ifif you
                 you are
                     are doing
                         doing business
                               businesswith
                                        withthem.
                                             them. And it’s only fair that I would
                                                       it's only             would

be compensated for having
                   having brought
                          brought that
                                  that new
                                       new business
                                           business to
                                                     to you.”
                                                        you." (RR III, 170).

          the event
      In the   event of
                      ofunauthorized
                         unauthorized use
                                      use and
                                           and circumvention
                                                circumvention by
                                                              by Pro-Tech,
                                                                  Pro-Tech, the
                                                                            the

Agreement provides
Agreement provides an
                   an assignment
                      assignment to
                                 to EJ Madison of "the
                                                  “the profits,
                                                       profits, benefits and/or

proceeds obtained
proceeds obtainedby
                  byPro
                     Pro Tech
                         Tech as
                               as aa result
                                     result of
                                            of any
                                                any use
                                                     use ofofthe
                                                               theConfidential
                                                                   Confidential

information that
information that is not authorized by EJM".
                                      EJM”. (RR
                                             (RRIV,
                                                 IV,Plt.'
                                                     Plt.’s  Ex.1)1)(Agreement
                                                          s Ex.      (Agreement91
                                                                                ¶

1(e)). Such
        Suchaa"damages"
               “damages”provision
                         provisionisisusual
                                       usualand
                                             andcustomary,
                                                 customary, and
                                                            and reasonable,
                                                                reasonable, in this

type of agreement
        agreement and is akin
                         akin to
                               to the
                                   the availability
                                        availability of
                                                     of punitive
                                                        punitive damages
                                                                 damages under the

TUTSA upon a showing of malice because a disclosing party can suffer extensive

damages which
        which are not easily calculated.
                             calculated. (RR
                                         (RR III,
                                             III, 33-34). Proceeds is
                                                  33-34). Proceeds is appropriate
                                                                      appropriate

because it prevents the receiving party from using the
                                                   the confidential
                                                       confidential information to

make lots of money, then hiding what he’s done, later
                                     he's done, later claiming
                                                      claiming there is no money




                                        9
       damages. And,
to pay damages. And, in
                      inthis
                         thiscase,
                              case,Pro-Tech'
                                    Pro-Tech’ss claim of losses belies
                                                                belies that it has

remained in business for
                     for ten
                         ten years.
                             years. (RR III, 170-172, 173).

      The Agreement further
                    further provides
                            provides “that
                                     "that all rights hereunder shall inure to the

               successor in interest,"
benefit of any successor    interest,” thereby
                                       thereby protecting
                                               protecting the original
                                                              original developer as

well as other
well    other entities
               entities who,
                        who, as
                             as business
                                 business is
                                           is developed,
                                               developed, receive
                                                          receive an interest
                                                                      interest in
                                                                               in

intellectual property
intellectual propertyand
                      and the
                           the benefits
                               benefitsflowing
                                        flowingfrom
                                                fromit.it. (RR III, 34-35);
                                                                    34-35); (RR IV,

Plt.’s Ex.
Plt.'s Ex. 1)
           1)(Agreement
              (Agreement917).
                         ¶ 7).

      “The project in the Agreement
      "The                Agreement defines the reason why the parties began to

do business in a confidential
                 confidential and protected
                                  protected way,
                                            way, but
                                                 but itit doesn’t
                                                          doesn't define the scope of

all the
all the information
         information that’s protected . .. . .[t]he
                     that's protected           [t]heconfidential
                                                      confidential information
                                                                    information that
                                                                                that is

protected is
protected is listed
             listed there
                    there in the
                             the first
                                 first part
                                       part of
                                            of the
                                                theagreement
                                                    agreement as
                                                               as financing
                                                                   financing sources,
                                                                              sources,

customers et
customers et cetera.” These agreements
             cetera." These  agreements are drawn
                                            drawn this
                                                  this way for the
                                                               the reason
                                                                   reason the
                                                                          the

parties simply
parties simply do know the opportunities
                           opportunities that may arise or the
                                                           the introductions
                                                                introductions that

may eventually
    eventually be
               be made.  (RR III,
                  made. (RR   III, 36).
                                   36). Confidential
                                         Confidentialinformation
                                                      information includes
                                                                   includes "new
                                                                            “new

product” development. (RR
product"               (RRIII,
                           III,37)
                               37)(RR
                                   (RR IV,
                                        IV, Plt.'s
                                            Plt.’sEx.
                                                   Ex.1)
                                                       1)(Recitals
                                                          (Recitals911).
                                                                    ¶ 1).

                                     Agreement were narrowly
      The restraints provided in the Agreement      narrowly drawn,
                                                             drawn, reasonable
                                                                    reasonable

and consistent with public
                    public policy.
                           policy. (RR III, 38-39).

      Rivera
      Rivera had
             had an opportunity
                    opportunity to
                                 to read
                                    read the
                                         the Agreement
                                             Agreementbefore
                                                       beforehe
                                                              hesigned
                                                                 signedit.
                                                                        it. (RR

     117-118). He
III, 117-118). He felt
                   felt the
                         theopportunity
                             opportunity for
                                         for Pro-Tech
                                             Pro-Tech to become
                                                         become an installer
                                                                   installer of the

conversion kits
conversion  kitstoto be
                     be aa good
                           good one. (RR III,
                                one. (RR III, 118).
                                              118). Rivera
                                                     Rivera and
                                                             and Pro-Tech
                                                                  Pro-Tech had
                                                                           had not
                                                                               not


                                          10
performed installations
performed installations of
                        of this
                           this type prior to entering
                                              entering into the
                                                            the agreement,
                                                                agreement, obtained
                                                                           obtained

                      perform the installation
the benefit of how to perform     installation as the result of the
                                                                the Agreement,
                                                                    Agreement, and

were paid to do installations
                installations on
                              on EJ
                                 EJ Madison
                                    Madison trucks.
                                             trucks. (RR III, 119).

      Rivera acknowledged
             acknowledged that Pro-Tech
                               Pro-Tech began
                                        began doing maintenance
                                                    maintenance work
                                                                work for EL

Hollingsworth on
Hollingsworth on or
                 or about
                    about August
                          August 1,
                                 1, 2014
                                    2014 and
                                         and continued
                                             continued to
                                                        to do
                                                           do so
                                                              so at the time of

trial. Id. Rivera made the decision in December 2014/January 2015 that Pro-Tech

would no longer perform work on the
would                           the conversion
                                    conversion kits on
                                                    on the
                                                        the EL
                                                            EL Hollingsworth-
                                                               Hollingsworth-

operated trucks
operated trucks not because the conversion
                                conversion kits were not operational
                                                         operational but, rather,
                                                                          rather,

because he felt like this work
because                   work was
                               was restricted
                                   restricted by
                                              by the
                                                  the terms
                                                      terms of
                                                            of the
                                                               the Agreement.
                                                                   Agreement. (RR

     119-121). Nevertheless,
III, 119-121). Nevertheless, he did
                                did not
                                    not approach
                                         approach Warren
                                                  Warren about
                                                         about whether
                                                               whether it was
                                                                          was

appropriate under
appropriate under the
                   the terms
                       terms of     Agreement, and
                             of the Agreement,          required EJ Madison's
                                               and that required    Madison’s

written authorization,
        authorization, to
                       to do
                          do general
                             general maintenance
                                     maintenance work
                                                 work for
                                                       for EL
                                                           EL Hollingsworth.
                                                              Hollingsworth. (RR

III, 121-122).

      Rivera
      Rivera understood
             understood that
                        that any
                             any modification
                                 modification to
                                              to the
                                                 the Agreement
                                                     Agreement needed
                                                               needed to
                                                                      to be in

writing and, further, that any use of the confidential
                                          confidential information beyond the scope

of the
of  the project
         project required
                  required the
                            the parties'
                                 parties’ signatures
                                           signatures and
                                                      and EJ
                                                           EJ Madison's
                                                               Madison’s written
                                                                          written

authorization. (RR
authorization. (RR III,
                   III, 122-123,
                        122-123, 132-133).
                                 132-133). And,
                                            And, Pro-Tech
                                                  Pro-Tech neither
                                                           neither knew
                                                                   knew the
                                                                        the

identify of nor had done any work for EL
                                      EL Hollingsworth
                                         Hollingsworth prior to entering into the

Agreement and being introduced
                    introduced to
                               to them
                                  them by
                                       by Warren.
                                          Warren. (RR III, 124).




                                         11
      Furthermore, Rivera
      Furthermore, Rivera agreed
                          agreed that         signed the
                                 that when he signed  the Agreement,
                                                          Agreement, Pro-Tech
                                                                     Pro-Tech

was agreeing to keep certain of EJ Madison's
                                   Madison’s information
                                              information confidential
                                                          confidential and, more

importantly, that
importantly, that EJ Madison
                     Madison was providing
                                 providing the information
                                                information only because
                                                                 because Pro-
                                                                         Pro-

Tech had entered
         entered into
                 into the
                      the Agreement.                Rivera understood
                          Agreement. (RR III, 128). Rivera understood Pro-Tech
                                                                      Pro-Tech

would be provided opportunities that otherwise it would not have had it not entered

into the Agreement.
into     Agreement. (RR
                     (RR III,
                          III, 128-129).
                                128-129). Rivera
                                           Riveraunderstood
                                                  understood that
                                                              that Pro-Tech
                                                                    Pro-Tech was
                                                                             was

prohibited from circumventing
prohibited      circumventing EJ
                              EJ Madison
                                 Madison as to its
                                               its confidential
                                                   confidential information
                                                                information and

the opportunities. (RR III, 128-131).
    opportunities. (RR

      Rivera acknowledged
             acknowledged signing
                          signing the Agreement
                                      Agreement and that it contained a merger

clause, i.e.,
clause,            he signed
        i.e., that he  signed itit without
                                   without relying
                                            relying on
                                                    on any
                                                        any prior
                                                             priorororcontemporaneous
                                                                       contemporaneous

representations outside the terms
                            terms of
                                  of the
                                     the Agreement.
                                         Agreement. (RR III, 132-135).

      On June 20,
      On June 20, 2017,
                  2017, the parties tried
                        the parties tried the
                                           the case
                                               case nonjury. In the
                                                    nonjury. In  the process
                                                                     process of

rendering judgment and announcing her decision, Judge Guadalupe Rivera agreed

that EJ
that EJ Madison's
        Madison’s introduction
                   introduction of
                                of EL
                                    ELHollingsworth
                                       Hollingsworth to
                                                      to Pro-Tech
                                                          Pro-Tech constituted
                                                                    constituted

confidential information.
confidential  information. (RR III, 192).
                           (RR III, 192). Nevertheless,
                                           Nevertheless, she
                                                          she determined
                                                               determined that
                                                                           that

introduction did not relate to the Project,
introduction                       Project, i.e., the conversion
                                                      conversion process and, further,

         Agreement did not
that the Agreement     not prevent
                           prevent Pro-Tech
                                   Pro-Tech from
                                            from "conducting
                                                 “conducting its business
                                                                 business as

usual.” (RR
usual."  (RR III,
             III, 193).




                                         12
                          SUMMARY OF THE ARGUMENT

         Madison, LLC and Pro-Tech,
      EJ Madison,         Pro-Tech, Inc. entered
                                         entered into
                                                 into an
                                                      an unambiguous
                                                          unambiguous Non-
                                                                      Non-

Disclosure and Non-Circumvention Agreement (the “Agreement”)
                                                "Agreement") which protected

the disclosure,
the disclosure, and limited the
                and limited the use
                                use of,
                                     of, trade
                                          trade secret
                                                 secret information
                                                         information EJ
                                                                     EJ Madison
                                                                        Madison

furnished to
furnished to Pro-Tech
             Pro-Tech to
                       to only
                          only that
                               that which
                                    which was
                                          was project-related.
                                              project-related. In reliance on the

Agreement, EJ
Agreement,    Madison disclosed
           EJ Madison disclosed the identity of
                                the identity of its
                                                 itscustomer/contact
                                                     customer/contact EL
                                                                      EL

Hollingsworth to
Hollingsworth     Pro-Tech, and thereafter
               to Pro-Tech,      thereafter Pro-Tech
                                            Pro-Tech began
                                                     began doing
                                                           doing non-project
                                                                  non-project

related business with EL Hollingsworth.

      The trial court rendered judgment against EJ Madison finding the disclosure

   its relationship
of its  relationship with EL Hollingsworth
                             Hollingsworth was
                                           was not protected because
                                               not protected because itit did not

relate to the Project, i.e., conversion of diesel-powered vehicles to duel fuel.

      The Agreement
      The Agreement can
                     can only
                         only reasonably
                              reasonablybe
                                         be read
                                             read such
                                                  such that     protects EJ
                                                       that it protects  EJ

Madison’s disclosure
Madison's disclosure of its trade secret information pursuant
                                                     pursuant to
                                                               to the
                                                                   the Agreement.
                                                                       Agreement. To

interpret it only to protect information
interpret                    information used
                                         used to evaluate
                                                 evaluate the
                                                          the project
                                                              project or that can be

said to be related to the conversion
                          conversion process results in provisions of the Agreement

being rendered meaningless and the Agreement itself rendered worthless.

      The trial court’s findings of
                court's findings of fact
                                    fact and
                                         and conclusions of law in this regard should

be disregarded, and the case reversed and remanded.




                                          13
                       ARGUMENT AND AUTHORITIES

   I. Standard
       Standard of
                of review.
                   review.

          A. Nonjury Trial

      Findings of fact may be requested in “any
                                           "any case tried in the district or county

court without
court without aa jury.”  Tex. R. Civ. Proc.
                  jury." Tex.         Proc. 296. A case
                                            296. A case is
                                                         is "tried"
                                                            “tried” when
                                                                    when there is a

hearing before the court on conflicting evidence. Besing v. Moffit, 882 S.W.2d 79,

            App.—Amarillo 1994, no writ). Timmons
81-82 (Tex. App.—Amarillo                 Timmons v. Luce, 840 S.W.2d 582,

586 (Tex. App.—Tyler 1992, no writ).

      Findings of Fact

      A trial
      A  trial court's
                court's findings
                         findings of fact
                                      fact are
                                            are reviewable
                                                 reviewable for
                                                            for legal
                                                                 legal and
                                                                        and factual
                                                                             factual

sufficiency of
sufficiency of the evidence
                   evidence by the same
                                   same standards
                                        standards that are
                                                       are applied
                                                           applied in
                                                                   in reviewing
                                                                       reviewing

evidence supporting
evidence supporting a jury's answer.
                             answer. Catalina
                                     Catalina v. Blasdel,     S.W.2d 295, 297
                                                 Blasdel, 881 S.W.2d

(Tex. 1994); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991);

see also MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3
                        v. Woodlands

(Tex. 2009). In
              In aafactual
                    factual sufficiency
                             sufficiency review,
                                         review, the
                                                 the court
                                                     court reviews
                                                           reviews all the evidence and

may reverse the decision
                decision of the trial court only if its ruling is so against the great

weight and preponderance of the evidence as to be manifestly erroneous or unjust.

Estate of Judd,
Estate            S.W.3d 436 (Tex.
          Judd, 8 S.W.3d     (Tex. App.—El
                                   App.—El Paso
                                           Paso 1999, no pet.)
                                                         pet.) (citing
                                                               (citing In re

King’s                  662, 664-65,
       Estate, 150 Tex. 662,
King's Estate,               664-65, 244 S.W.2d
                                         S.W.2d 660, 661
                                                     661 (1951);
                                                          (1951); Runnels
                                                                  Runnels v.

                           849 (Tex.
Firestone, 746 S.W.2d 845, 849  (Tex. App—Houston
                                      App—Houston [14th Dist.], writ denied,
                                                                     denied,


                                          14
760 S.W.2d
760 S.W.2d 240
           240 (Tex.
               (Tex. 1988). When aa reporter's
                     1988). When     reporter’s record
                                                 record is
                                                        is part
                                                           part of
                                                                of the
                                                                    the appellate
                                                                         appellate

record, findings
record, findings of fact are not
                             not conclusive
                                 conclusive on appeal,
                                               appeal, even
                                                       even ifif unchallenged.
                                                                 unchallenged. Zac

Smith
Smith & Co. v. Otis
               Otis Elevator
                    Elevator Co.,     S.W.2d 662, 666 (Tex.
                             Co., 734 S.W.2d          (Tex. 1987);
                                                            1987); Estate of

Judd, 8 S.W.3d at 441.

      In reviewing such a point, the court
                                     court considers
                                           considers and weighs all the
                                                                    the evidence,
                                                                        evidence,

both the evidence that tends to prove as well as the evidence that tends to disprove

    existence. Id. (citing Ames
its existence.             Ames v. Ames,                 158-159 (Tex. 1989),
                                   Ames, 776 S.W.2d 154, 158-159       1989),

      denied, 494
cert. denied, 494 U.S.
                  U.S. 1080,
                       1080, 110
                             110 S.Ct.
                                 S.Ct. 1809,
                                       1809, 108
                                             108 L. Ed. 2d 939
                                                           939 (1990);
                                                               (1990); Cain v.

Bain, 709 S.W.2d 175, 176 (Tex.
                          (Tex. 1986). So, considering
                                1986). So, considering the evidence, if a finding

   so contrary
is so  contrary to the
                    the great
                         great weight
                               weight and
                                      and preponderance
                                          preponderance of
                                                        of the evidence as
                                                           the evidence as to be

manifestly unjust,
manifestly unjust, the
                   the point should be sustained,
                       point should    sustained, regardless
                                                  regardless of whether there
                                                             of whether there is

some evidence to support it. Id. (citing Watson v. Prewitt, 159 Tex. 305, 305, 320

S.W.2d 815, 816 (1959); In re King's Estate, 244 S.W.2d at 661).

      In a legal sufficiency or "no
                                “no evidence"
                                    evidence” review, the court may sustain a legal

sufficiency challenge
sufficiency challenge only
                      only when
                           when (1)
                                (1) the record discloses
                                               discloses a complete
                                                           complete absence
                                                                    absence of

evidence of a vital fact, (2) the court is barred by rules of law or of evidence from

giving weight
giving weight to the only evidence
                          evidence offered
                                   offered to prove a vital fact, (3) the
                                                                      the evidence
                                                                          evidence

offered to prove
offered    prove a vital fact is no
                                 no more
                                    more than
                                         than aa mere
                                                 mere scintilla,
                                                      scintilla, or (4)
                                                                    (4) the
                                                                         the evidence
                                                                             evidence

establishes conclusively
establishes conclusively the
                          the opposite
                              opposite of
                                       of a vital fact. Ford Motor Co. v. Castillo,
                                                        Ford Motor        Castillo,

    S.W.3d 616, 620 (Tex. 2014) (op. on reh'g);
444 S.W.3d                              reh'g); Uniroyal
                                                Uniroyal Goodrich
                                                         Goodrich Tire
                                                                  Tire Co.
                                                                       Co. v.


                                         15
Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999). In

determining whether
determining whether there
                     there is legally sufficient
                           is legally sufficient evidence
                                                 evidence to support the finding
                                                          to support      finding

under review,
under review, the court must
              the court must consider
                             consider evidence
                                      evidence favorable
                                               favorabletoto the
                                                              the finding
                                                                  finding ifif a

reasonable factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder
reasonable factfinder could
                      could not. Cent. Ready Mix
                                 Cent. Ready     Concrete Co.
                                             Mix Concrete         Islas, 228
                                                          Co. v. Islas,

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

           When the court sustains a legal sufficiency issue, it has a duty to render

judgment for the appellant because that is the judgment the trial court should have

rendered. Vista Chevrolet, Inc.
          Vista Chevrolet,                    S.W.2d 176, 176 (Tex.
                                   Lewis, 709 S.W.2d
                           Inc. v. Lewis,                     (Tex. 1986);
                                                                    1986); see

Tex. R. App. P. 43.3.

      Conclusions of Law

      The legal
      The legal conclusions
                conclusions of
                            of the trial court
                               the trial court are not
                                                   not binding
                                                       binding on
                                                               on the
                                                                   the appellate
                                                                        appellate

court; appellate
court; appellate courts
                 courts are
                        are free
                            free to draw
                                    draw their
                                          their own
                                                own legal
                                                     legal conclusions
                                                            conclusions and
                                                                        and review
                                                                            review

those conclusions
those conclusions de  novo.
                  de novo.         Hydrocarbon
                                   Hydrocarbon Management,
                                               Management,Inc.
                                                           Inc. v.  Tracker
                                                                v. Tracker

Exploration, Inc., 861 S.W.2d 427, 431 (Tex. App.—Amarillo 1993, no writ); see

also Austin Hardwoods, Inc. v. Vanden Berghe, 917 S.W.2d 320, 322 (Tex. App.—

El Paso 1995, writ denied).




                                         16
      Contract Law

      When a contract is susceptible
      When               susceptible to a legal
                                           legal meaning,
                                                 meaning, the construction
                                                              construction of the

written instrument
        instrument is one of law for the court. Id. When parties disagree over the

meaning of an unambiguous
meaning       unambiguous contract,
                          contract, the
                                    the court
                                        court must
                                              must determine
                                                   determine the
                                                             the intent
                                                                 intent of the

parties. This
parties.  This determination
                determination must be based
                                      based on
                                            on the
                                                the objective
                                                    objective intent of the
                                                                        the parties
                                                                            parties

expressed in
expressed      the agreement,
           in the   agreement, and
                               and not
                                    not their
                                          theirpresent
                                                 presentinterpretation.
                                                          interpretation.   Austin

Hardwoods, Inc., 917 S.W.2d at 323.

                                 FINDINGS OF FACT

      II.   There is legally and factually insufficient evidence to support the
      court’s lack of finding that the introduction of EL Hollingsworth to Pro-
      court's
      Tech constituted disclosure of EJ Madison's
                                          Madison’s confidential information to
      Pro-Tech. [Amended finding No. 3]

      III. There is legally and factually insufficient evidence to support the
      court’s factual
      court's factual finding
                      finding No.
                              No. 66 that
                                     that the "Project"
                                              “Project” was
                                                          was the
                                                              the basis
                                                                   basis of the
      Agreement.

      IV.
      IV. There is legally and factually insufficient evidence to support the
      court’s factual
      court's  factual finding
                       finding No.
                                No. 7 that the
                                           the language
                                                language of the
                                                            the Agreement
                                                                Agreement does
      not reflect that services not related to the conversion process constituted
      trade secrets.

      V. There is legally and factually insufficient evidence to support the
      court’s factual finding No. 8 that there
      court's                            there was
                                               was no
                                                   no additional
                                                      additional consideration
                                                                  consideration
      provided by
      provided      Plaintiff to
                 by Plaintiff to Defendant
                                 Defendant that
                                             that would
                                                   would make
                                                         make non-"Project"
                                                                 non-“Project”
      services covered by the Agreement.

      VI. There is legally and factually insufficient evidence to support the
      court’s factual
      court's factual finding
                       finding No. 9 that
                                      that the
                                            the services
                                                 services provided
                                                          provided by
                                                                    by Defendant
                                                                         Defendant
           Hollingsworth are
      E.L. Hollingsworth    are those
                                those known
                                      known in the industry,
                                                       industry, e.g., oil changes,
                                                                           changes,
      windshield
      windshield wiper
                  wiper replacements,
                          replacements, and
                                        and do not constitute trade secrets nor
      confidential information as intended by the Agreement.
                                        17
       VII. There is legally and factually insufficient evidence to support the
       court’s factual finding
       court's         finding No. 10 that
                                      that Plaintiff
                                           Plaintiff did not
                                                         not provide
                                                             provide Defendant
                                                                     Defendant
       with a written copy of its customer
                                  customer list and EL Hollingsworth
                                                         Hollingsworth is
                                                                        is not a
       customer of Plaintiff.

       VIII. There is legally and factually insufficient evidence to support the
       court’s factual finding
       court's         finding No.
                               No. 11 that Plaintiff
                                            Plaintiff is not entitled
                                                             entitled to any of the
       profits generated
       profits generated by Defendant
                              Defendant for
                                          for non-"Project"
                                               non-“Project” services
                                                               services Defendant
                                                                         Defendant
                                        2
       provided to E.L. Hollingsworth. 2

           A. The Agreement

       The Agreement provides in pertinent part:

                                            RECITALS:

                        trucking company
             EJM is a trucking    company and Pro Tech is in the business of
       truck maintenance
       truck  maintenance and       repair, including,
                              and repair,    including, among
                                                           among other
                                                                    other things,
                                                                            things,
       converting trucks from diesel powered operation to dual
       converting                                               dual CNG/diesel
                                                                       CNG/diesel
       powered operation.
       powered               Pro Tech
                 operation. Pro  Tech and
                                       and EJM
                                            EJM have
                                                   have entered
                                                         entered into
                                                                  into discussions
                                                                       discussions
       with each other in connection with prospective business arrangements
       and/or opportunities
       and/or  opportunities involving
                              involving the following
                                                following commercial
                                                            commercial project:
                                                                           project:
       conversion of trucks, including
       conversion              including without
                                          without limitation,
                                                    limitation, trucks  owned by
                                                                trucks owned
       EJM/its related
       EJM/its  related companies,
                         companies, from
                                      from diesel    powered operation
                                             diesel powered    operation to    dual
                                                                           to dual
       CNG/Diesel powered
                     powered operation
                              operation (the
                                         (the‘Project’).
                                               'Project').

    IV, Plt.'
(RR IV, Plt.’s  Ex.1)
              s Ex. 1)(Recitals
                       (Recitals91
                                 ¶ 1).

              [I]n order to evaluate
              [I]n          evaluate the feasibility
                                          feasibility of the Project,
                                                              Project, EJM
                                                                       EJM will
                                                                             will
       provide to Pro
       provide     Pro Tech
                        Tech confidential
                              confidential financial
                                           financial and
                                                      and business
                                                           business information
                                                                     information
       concerning EJM’s
       concerning          business plans,
                    EJM's business   plans, financing
                                             financing sources,
                                                       sources, sales,
                                                                 sales, margins,
                                                                        margins,
       profits, customers,
       profits,  customers, marketing
                             marketing programs
                                          programs and     plans, new
                                                      and plans,   new product
                                                                         product
       developments, contractual
       developments,     contractualrelationships
                                       relationshipsasas well
                                                          well asas proprietary
                                                                      proprietary
       information concerning
       information   concerning product   technology, software,
                                 product technology,                     secrets,
                                                        software, trade secrets,
       product development,
       product   development, new
                                new product
                                     product ideas
                                               ideas and  new applications
                                                     and new    applications for


       2
       2            and factual
         The legal and   factual sufficiency
                                 sufficiency of Findings of Fact Nos. 6-11
                                                                        6-11 and
                                                                             and Amended
                                                                                 Amended Finding
of Fact No. 33 will
                will be
                     be argued
                         argued together
                                 together as
                                           as they
                                               they depend
                                                    depend upon
                                                           upon aa review
                                                                    review of
                                                                            of Agreement
                                                                               Agreement for their
                                                                                             their
resolution. Austin Hardwoods, Inc., 917 S.W.2d at 323.
                                                  18
       existing products and technology, all of the foregoing being hereafter
       referred to as ‘Confidential
                      'Confidential Information.’
                                    Information.'

        Plt.’sEx.
(RR IV, Plt.'s Ex.1)1)(Recitals
                       (Recitals91¶ 2).

              EJM has agreed to furnish such Confidential Information to the
       Pro Tech to allow Pro Tech the opportunity to evaluate the feasibility
          the Project,
       of the  Project, but
                        but only
                            only on
                                  on the
                                      the condition
                                           condition that
                                                      that both
                                                           both the
                                                                 the Confidential
                                                                      Confidential
       Information, and
       Information,    and all  documents derived
                            all documents    derived from          containing the
                                                        from or containing     the
       Confidential Information be maintained confidential and used only as
       allowed under this Agreement.

(RR IV, Plt.'s
        Plt.’sEx.
               Ex.1)
                   1)(Recitals
                      (Recitals91
                                ¶ 3)
                                  3) (emphasis
                                     (emphasis added).

                                     AGREEMENT:

              1.     Non-Disclosure, Non-Use
                     Non-Disclosure,       Non-Use andand Non-Circumvention.
                                                          Non-Circumvention. Pro
          Tech shall:
          Tech   shall: (a)
                         (a) keep
                              keep EJM'
                                      EJM’s    Confidential Information
                                            s Confidential     Information in     strict
                                                                              in strict
          confidence; (b)
          confidence;   (b) protect
                             protect itit with
                                          with the
                                               the same
                                                   same degree
                                                          degree of of care
                                                                       care as the Pro
                           own Confidential
          Tech treats its own     Confidential Information;
                                                  Information; (c)(c) not without the
          prior written consent of EJM, disclose or permit it to be discloseddisclosed
              anyone other
          to anyone    other than
                               than Pro
                                     ProTech'
                                           Tech’s   directors, officers,
                                                 s directors,   officers, employees,
                                                                           employees,
          agents or
          agents      consultants who
                   or consultants    who have
                                            have a legitimate
                                                     legitimate need
                                                                   need to  know the
                                                                         to know    the
          Confidential Information
                         Information for the Pro Tech to negotiate, participate
          in, or perform services with respect to the Projects; (d) will not use,
          and will not
          and        not permit
                          permit its
                                   its directors,
                                        directors, officers,
                                                    officers, employees,
                                                              employees, agents
                                                                             agents or
          consultants to
          consultants             the Confidential
                        to use, the     Confidential Information
                                                       Information for          reason
                                                                       for any reason
          other than
          other   than for
                        for the
                              the Project;
                                   Project; andand (e)
                                                     (e) not
                                                          not circumvent
                                                                circumvent EJMEJM in  in
          connection with the Confidential Information.

    IV, Plt.'
(RR IV, Plt.’s  Ex. 1)
              s Ex. 1)(Agreement
                       (Agreement91
                                  ¶ 1).

Findings of Fact Nos. 3 and 6

       In its Finding of Fact No. 3, the trial court found:

              After entering into the Agreement, EJ Madison introduced Pro-
       Tech to EL Hollingsworth,
                    Hollingsworth, a Michigan
                                       Michigan company that operates diesel
       vehicles in Michigan,
                   Michigan, with
                               with subsequent
                                    subsequent operations
                                               operationsin
                                                          in Texas.
                                                             Texas. Based on
                                                      maintenance service on
       this introduction, Pro-Tech began providing maintenance

                                             19
          Hollingsworth trucks,
      EL Hollingsworth          including oil changes, tire and windshield
                        trucks, including                       windshield
      replacements.

      (CR II, 5). InInresponse,
      (CR              response,Appellant
                                 Appellant filed
                                            filed its
                                                   its "Plaintiff's
                                                        “Plaintiff’s Request
                                                                     Request for

Amended Findings
Amended Findings of
                 of Fact
                    Fact and
                          andConclusions
                             ConclusionsofofLaw.
                                             Law. (CR
                                                  (CR II,
                                                      II, 8). Appellant
                                                          8). Appellant

requested the following amended Finding of Fact No. 3.:

      [Amended] 3. After
      [Amended]          After entering
                                entering into
                                           into the
                                                 the Agreement,
                                                      Agreement, EJEJ Madison
                                                                       Madison
      introduced Pro-Tech
      introduced  Pro-Tech to EL Hollingsworth, a Michigan company that
      operates diesel
      operates         vehicles in Michigan,
                diesel vehicles      Michigan, with subsequent
                                                      subsequent operations
                                                                  operations in
      Texas.     The introduction
                 The   introduction of      EL Hollingsworth
                                        of EL    Hollingsworth to to Pro-Tech
                                                                      Pro-Tech
      constituted disclosure
      constituted disclosure of EJ Madison's
                                       Madison’s confidential
                                                   confidential information
                                                                information to
      Pro-Tech. Based          this introduction,
                   Based on this     introduction, Pro-Tech
                                                    Pro-Tech began
                                                              began providing
                                                                      providing
      maintenance service
      maintenance    service on    EL Hollingsworth
                               on EL     Hollingsworth trucks,
                                                         trucks, including
                                                                  including oil
                                                                             oil
                                                    3
      changes, tire and windshield replacements.
                                      replacements.'

(CR II, 8). Thus,
            Thus,Appellant
                  Appellant can
                            can challenge
                                challenge lack of this finding. See e.g., Vickery v.

Commission for Lawyer Discipline, 5 S.W.3d 241, 254 (Tex.App.—Houston [14th

Dist.] 1999, pet. denied).
                  denied). Judge
                            Judge Guadalupe
                                  Guadalupe specifically
                                            specifically found on the record that

the introduction
the  introduction of EL
                      EL Hollingsworth
                          Hollingsworth constituted
                                         constituted EJ
                                                     EJ Madison's
                                                        Madison’s confidential
                                                                   confidential

information. (CR
information. (CR II,
                  II, 192-193).
                      192-193). The
                                 Theabove
                                     aboveamended
                                           amended requested
                                                    requested finding
                                                              finding of fact
                                                                         fact

conforms the
conforms  the findings
              findingstoto the
                            the trial
                                 trial court’s
                                       court's ruling
                                               ruling on
                                                      on the record. Moreover,
                                                         the record. Moreover, as

discussed below,
discussed below, there
                 there is
                       is no question
                             question but that
                                          that when
                                               when EJ
                                                    EJ Madison
                                                       Madison introduced
                                                                introduced EL

Hollingsworth to Pro-Tech it disclosed confidential information that was protected

and limited in the manner it could be used by Pro-Tech.

      In its Finding of Fact No. 6, the trial court found:



      33
      33 The   language in bold is the proposed language amending the finding.
                                                20
            The "Project"
                “Project” i.e.,
                           i.e., the
                                  the conversion
                                       conversion of
                                                  of diesel
                                                     diesel powered
                                                             powered trucks to
      dual CNG/Diesel
      dual  CNG/Diesel powered
                            poweredvehicles
                                          vehicles waswasthethebasis
                                                                basis of   the
                                                                       of the
      Confidentiality and Non-disclosure agreement executed by the parties.

(CR II, 5).

      A review of the language
                      language of
                               of the
                                  the Agreement
                                      Agreement as
                                                as set
                                                   set forth
                                                       forth above
                                                             above reveals:
                                                                    reveals: (1)

   Madison and Pro-Tech
EJ Madison     Pro-Tech "entered
                        “entered into
                                 into discussions
                                      discussions with each
                                                       each other
                                                            other concerning
                                                                  concerning

prospective business arrangements and/or opportunities
prospective                                            involving the [Project]"
                                         opportunities involving     [Project]”

        Plt.’s Ex.
(RR IV, Plt.'s Ex. 1)
                   1) (Recitals
                       (Recitals 91
                                 ¶ 1)
                                    1)(emphasis
                                       (emphasisadded);
                                                 added);(2)  “[I]n order to evaluate
                                                         (2) "[I]n

the feasibility of the Project,
                       Project, EJM will
                                    will provide
                                         provide to
                                                 to Pro
                                                    Pro Tech
                                                        Tech confidential
                                                             confidential financial
                                                                          financial

and business
and business information
             information concerning
                          concerningEJM’s
                                     EJM's. . .. . financing sources.. .. . profits,
                                                   financing sources

customers . . . plans, new product developments, contractual relationships as well
customers

                           concerning .. .. . trade
as proprietary information concerning               secrets .. .. . all of the
                                              trade secrets                the foregoing
                                                                                foregoing

being hereafter
being hereafter referred
                 referredtotoas
                              as ‘Confidential
                                  'ConfidentialInformation’”
                                                Information' (RR
                                                             (RR IV,
                                                                 IV, Plt.’s
                                                                     Plt.'s Ex. 1)

          ¶ 2)2)(emphasis
(Recitals 91     (emphasisadded);
                           added);(3)
                                   (3)“EJM
                                       "EJM has
                                            has agreed
                                                agreed to
                                                       to furnish such Confidential

Information to
Information  to .. . . Pro
                       Pro Tech
                           Tech to
                                 to allow
                                     allow Pro
                                           Pro Tech
                                               Tech the
                                                     the opportunity
                                                          opportunity to
                                                                      to evaluate
                                                                         evaluate the

feasibility of
feasibility of the Project,
                   Project, but only
                                only on
                                     on the
                                         the condition
                                              condition that
                                                         that both
                                                               both the
                                                                     the Confidential
                                                                          Confidential

Information .. . .. be
Information         be maintained
                       maintained confidential
                                  confidential and used only as allowed
                                                                allowed under this

Agreement” (RR
Agreement"         Plt.’s Ex.
           (RR IV, Plt.'s Ex. 1)
                               1)(Recitals
                                  (Recitals91
                                            ¶ 3)
                                              3) (emphasis
                                                 (emphasis added);
                                                           added); and
                                                                   and (4) "Pro
                                                                           “Pro

Tech shall: (a)
             (a) keep
                 keep EJM's
                      EJM’sConfidential
                            Confidential Information
                                          Information in
                                                      in strict
                                                         strict confidence . . . [and]

will not use . . . the Confidential Information for any reason other than the Project




                                           21
        [and] not circumvent EJM in connection
. . . . [and]                       connection with the
                                                    the Confidential
                                                        Confidential Information."
                                                                     Information.”

(RR IV, Plt.’s Ex. 1)
        Plt.'s Ex. 1) (Agreement911)
                      (Agreement ¶ 1) (emphasis added).

      In the instant case, there is no question but that the parties disagree as to the

meaning of
meaning    the Agreement
        of the Agreement and
                         and the scope of the
                             the scope     the protection
                                                protection provided
                                                           provided for EJ
                                                                    for EJ

Madison’s confidential
Madison's confidential information vis-à-vis
                                   vis-à-vis the
                                             the Project. EJ Madison
                                                 Project. EJ Madison asserted that

    Agreement restricted
the Agreement restricted use of
                             of the
                                 the confidential
                                      confidential information
                                                    information to
                                                                 to "project-related
                                                                     “project-related

business,” i.e.,
business," i.e., that Pro-Tech “was
                 that Pro-Tech          permitted to use
                               "was not permitted    use the
                                                          the EL
                                                               ELHollingsworth
                                                                  Hollingsworth

contact [or any other protected
                      protected information]
                                information] for
                                              for anything
                                                  anything outside
                                                           outsidethe
                                                                   theproject.”
                                                                       project." (RR

             IV, Plt.'s
III, 26) (RR IV, Plt.’s Ex.
                        Ex. 1)
                             1)(Agreement
                                (Agreement 91
                                           ¶ 1(d)).  On the
                                              1(d)). On  the other
                                                             other hand,
                                                                   hand, Pro-Tech
                                                                         Pro-Tech

purported to
purported    assert that the
          to assert      the confidential
                              confidential information
                                           information was
                                                       was protected
                                                           protected only
                                                                     only to
                                                                          to the

limited extent
limited extent necessary
               necessary to evaluate the
                                     the Project,
                                         Project, (RR
                                                  (RR III, 41-44), or
                                                      III, 41-44),        the
                                                                   or if the

confidential information
confidential information specifically
                          specifically related    the subject
                                       related to the subject of
                                                              of the
                                                                  the project—
                                                                       project—

conversion of diesel
              diesel trucks
                     trucks to
                             to duel
                                duel fuel.
                                     fuel. (RR III, 191-193; see also R III, 9-12 (the

argument of defendant’s
            defendant's counsel).

      When parties
      When parties disagree
                   disagree over
                            over the meaning
                                     meaning of an
                                                an unambiguous
                                                   unambiguous contract,
                                                               contract, the

court must determine
           determine the
                     the intent
                         intent of
                                of the
                                   the parties. This determination
                                       parties. This determination must be based
                                                                           based

   the objective
on the objective intent
                 intent of the
                           the parties
                               parties expressed
                                       expressed in the
                                                    the agreement,
                                                        agreement, and not their
                                                                           their

present interpretation. The construction
        interpretation. The construction of an
                                            an unambiguous
                                               unambiguous contract is a question
                                                                         question

of law for the court. To
                      To determine
                         determine the
                                    the objective
                                        objective intent
                                                  intent of the parties, a court should

examine the
examine the entire
            entire instrument
                   instrumentin
                              in an
                                 an effort
                                    effort to harmonize and
                                           to harmonize and give
                                                            give effect
                                                                 effect to all


                                          22
provisions of
provisions    the contract
           of the contract so that
                               that none
                                    none will
                                         will be
                                               berendered
                                                  rendered meaningless.
                                                            meaningless. Austin

Hardwoods, Inc., 917 S.W.2d at 323.

            Pro-Tech’ss interpretation
      Here, Pro-Tech'    interpretationand
                                        and the
                                             the trial
                                                  trial court’s finding wholly
                                                        court's finding wholly fails to

recognize, much
recognize, much less
                less harmonize
                     harmonize and
                               and give
                                   give effect
                                        effect to, all provisions of the contract
                                                                         contract

such that multiple
such      multiple provisions
                   provisions are
                              are rendered
                                  rendered meaningless. First, by limiting
                                           meaningless. First,     limiting the

                                         Project renders the "non-use"
scope of protection to evaluation of the Project             “non-use” and "non-
                                                                           “non-

circumvention” provisions
circumvention"  provisionsineffective.
                           ineffective. Paragraph
                                        Paragraph33 of
                                                    of the
                                                       the Recitals
                                                           Recitals in     first
                                                                    in the first

instance provides that the confidential information is being furnished on condition

that itit "be
that       “bemaintained
               maintained confidential
                           confidential and
                                        and used
                                            used only
                                                 only as
                                                      as allowed  under this
                                                          allowed under  this

Agreement.” (RR
Agreement." (RR IV, Plt.’s Ex.
                IV, Plt.'s Ex. 1)
                                1)(Recitals
                                   (Recitals 91
                                              ¶ 3)
                                                3) (emphasis
                                                   (emphasis added). Thereafter,
                                                             added). Thereafter,

paragraph 1. "Non-Disclosure,
paragraph    “Non-Disclosure, Non-Use
                              Non-Use and
                                      and Non-Circumvention"
                                          Non-Circumvention” independently
                                                              independently

provides that Pro-Tech
provides      Pro-Tech "keep
                       “keep the
                             the "Confidential
                                  “Confidential Information
                                                Information in strict
                                                               strict confidence
                                                                      confidence

[and] (d) . . . not use . . . the Confidential Information for any reason other than the

Project.. .. . and
Project        and (e) not circumvent
                           circumvent EJM
                                      EJM in connection
                                             connection with
                                                        with the
                                                              the Confidential
                                                                  Confidential

Information." (RR IV, Plt.'s
Information.”         Plt.’s Ex.
                             Ex. 1)
                                  1)(Agreement
                                     (Agreement 91
                                                 ¶ 1(d)(e))
                                                   1(d)(e))(emphasis
                                                            (emphasisadded).
                                                                      added). To

       Pro-Tech’ss interpretation not only renders the above provisions meaningless
accept Pro-Tech'

but effectively renders
                renders the Agreement
                            Agreement worthless
                                      worthless as                     Madison
                                                as it would provide EJ Madison

no protection whatsoever. Thus, whether
              whatsoever. Thus, whether Pro-Tech
                                        Pro-Tech "evaluates"
                                                 “evaluates” the Project in good

                      pursuant according
faith or continues-on pursuant according to the original purpose of the disclosure
                                                                        disclosure

   the protected
of the protected information,
                 information, according
                              according to
                                         to Pro-Tech,
                                            Pro-Tech, itit is      thereafter to use
                                                           is free thereafter


                                          23
whatever confidential/proprietary/trade
whatever confidential/proprietary/trade secret
                                         secret information
                                                 informationitit has
                                                                 has received
                                                                     received as long

                        evaluate the project or did not
as same was not used to evaluate                    not specifically
                                                        specifically pertain to the

subject of the Project—here related
                            related to
                                    to conversion.
                                       conversion. Thus, it matters not whether the

information is otherwise EJ Madison’s proprietary or trade secret information, i.e.,
                            Madison's proprietary

Confidential Information
Confidential  Informationasas provided
                              provided in  the Agreement.
                                       in the   Agreement.             Obviously,
                                                                       Obviously, the

Agreement cannot
Agreement cannot reasonably
                 reasonably be  interpreted to leave
                            be interpreted      leave otherwise
                                                       otherwise protected
                                                                  protected

information unprotected
information unprotectedsimply
                        simplybecause
                               becausethe
                                       the receiving
                                           receivingparty
                                                     party describes
                                                           describes itit as

unnecessary to
unnecessary  to evaluation
                evaluation of
                           of the Project and/or
                              the Project and/or as unrelated
                                                    unrelated to what the
                                                                      the parties
                                                                          parties

originally described
originally describedasasthe
                         the Project.
                             Project. ItIt isisonly
                                                onlynecessary
                                                     necessary that
                                                                that the
                                                                      theconfidential
                                                                          confidential

information was
information was disclosed
                disclosed pursuant
                          pursuant to
                                   to the Agreement
                                          Agreement and         be confidential
                                                    and that it be  confidential

information. IfIf so,
information.       so,the
                       thereceiving
                           receiving party
                                     party (Pro-Tech)
                                            (Pro-Tech) can
                                                       can neither
                                                           neither use
                                                                   use nor
                                                                       nor circumvent
                                                                           circumvent

                                        the confidential
the disclosing party (EJ Madison) as to the confidential information and can only

use it for
use    for Project-related
           Project-related purposes. As Mitchell
                           purposes. As Mitchell testified, “The project
                                                 testified, "The project in the
                                                                            the

Agreement defines
Agreement  definesthe
                   thereason
                       reasonwhy
                              whythe
                                  the parties
                                      partiesbegan
                                              begantoto do business in
                                                        do business  in a

confidential and
confidential  andprotected
                  protectedway,
                            way,but
                                 butitit doesn’t
                                         doesn't define
                                                 definethe
                                                        the scope
                                                            scope of all the
                                                                  of all  the

information that’s
information that's protected . . .. [t]he
                                     [t]he confidential
                                           confidential information
                                                        information that is protected is

listed there
listed there in the first
                    first part
                          part of
                               of the
                                   theagreement
                                       agreement as
                                                  as financing
                                                      financing sources,
                                                                 sources, customers
                                                                          customers et

cetera.” He
cetera." Hefurther
            furtherexplained
                    explained these
                               these agreements
                                     agreements are drawn this way for the reason

                      know the
the parties simply do know the opportunities
                               opportunities that may arise or
                                                            or the
                                                                the introductions
                                                                     introductions

that may eventually be made. (RR III, 36)


                                          24
Findings of Fact Nos. 7-11

      In its Finding of Fact No. 7, the trial court further found:

             It was
                was not
                     not intended
                          intended nor
                                   nor is there
                                           there any
                                                 any language
                                                       language in the
                                                                     the Non-
                                                                          Non-
      Disclosure
      Disclosure Non-Circumvention
                  Non-Circumvention Agreement
                                         Agreementreflecting
                                                     reflecting an
                                                                an intent
                                                                   intent that
      services not
      services        related nor
                 not related   nor arising
                                    arising from
                                             from the
                                                    theconversion
                                                          conversion process
                                                                       process
      constituted trade
      constituted          secrets or
                   trade secrets   or confidential
                                       confidential financial
                                                     financial and
                                                                and business
                                                                      business
      information.

(CR II, 5-6).

      In its Finding of Fact No. 8, the trial court further found:

           There was no additional consideration provided
                                                 provided by Plaintiff to
      Defendant
      Defendant that  would make
                 that would make non-Project
                                  non-Project services
                                               services covered
                                                        covered by   the
                                                                 by the
      Agreement.

(CR II, 6).

      In its Finding of Fact No. 9, the trial court further found:

            The services provided by Defendant to E.L. Hollingsworth
                                                             Hollingsworth are
      those known
      those known in thethe industry,
                             industry, e.g.,
                                        e.g., oil
                                               oilchanges,
                                                   changes, windshield
                                                              windshield wiper
                                                                          wiper
      replacements,
      replacements, and
                      and do       constitute trade
                          do not constitute     trade secrets
                                                       secrets nor
                                                               nor confidential
                                                                    confidential
      information as intended by the Agreement.

(CR II, 6).

      In its Finding of Fact No. 10, the trial court further found:

            Plaintiff
            Plaintiff did
                      did not provide Defendant
                          not provide Defendant with
                                                  with aa written
                                                          written copy
                                                                  copy of its
      customer list, and EL Hollingsworth is not a customer of Plaintiff.

(CR II, 6).

      In its Finding of Fact No. 11, the trial court further found:




                                          25
            Plaintiff
            Plaintiff isis not entitled to
                           not entitled     any of
                                         to any  of the
                                                     the profits
                                                          profits generated
                                                                   generated by
                                                                             by
      Defendant
      Defendant for   non-“Project” services
                 for non-"Project"      services Defendant
                                                 Defendant provided
                                                              provided to E.L.
                                                                            E.L.
      Hollingsworth.

(CR II, 6).

      Again, to determine whether there is legally and factually sufficient evidence

supporting the
supporting the above
               above findings,
                     findings, it is necessary to review the entire
                                                             entire Agreement,
                                                                    Agreement, to

harmonize and
harmonize  and give
               give effect
                    effect to
                            to all its provisions
                               all its provisions so that
                                                     that none
                                                          none will
                                                               will be
                                                                    be rendered
                                                                        rendered

meaningless. Austin Hardwoods, Inc., 917 S.W.2d at 323.

                      contractual language set forth above quite simply does not
      A review of the contractual

even refer
even refer to or
              or purport
                 purport to
                          to address,
                              address, much
                                       much less
                                             less define,
                                                  define, Pro-Tech’s
                                                          Pro-Tech's services “not
                                                                     services "not

related nor arising from the conversion
related                      conversion process"
                                        process” or that
                                                    that same
                                                         same "constituted
                                                              “constituted trade
                                                                           trade

secrets” or other protected
secrets"          protected information
                            information of
                                        of EJ
                                           EJ Madison.
                                              Madison. (CR II, 5-6) (FOF No. 7).

Further, it appears the trial court conflated the Agreement’s
                                                  Agreement's restrictions in the non-

        non-circumvention provisions
use and non-circumvention provisions with          traditionally considered non-
                                     with what is traditionally

competition clauses.
competition clauses. As Mitchell
                        Mitchell made
                                 made clear,
                                      clear, while
                                             while non-competition
                                                    non-competition agreements
                                                                    agreements

are narrowly construed
             construed because
                       because they constrain productive
                                              productive activity
                                                         activity (what
                                                                  (what the trial

court appears
court appears to    addressing in
              to be addressing in findings
                                  findings 7,
                                           7, 9 and 11),
                                                    11), (RR
                                                         (RR III,
                                                              III, 16-17);
                                                                   16-17); non-
                                                                           non-

               non-circumvention agreements
disclosure and non-circumvention agreements are broadly construed because they

protect things
protect things known
               known to
                      to the parties —
                         the parties   the protected
                                     — the protected party's
                                                     party’s interest
                                                             interest in his
                                                                      in his

contractual agreements,
            agreements, his customers,
                            customers, his financing sources — things considered

secret and proprietary. (RR III, 17, 168-170).
           proprietary. (RR


                                         26
      Here, the Agreement
      Here,     Agreement in no way
                                way restricts
                                     restricts Pro-Tech'
                                               Pro-Tech’ss ability
                                                           ability to perform its

usual services,
usual services, whether
                whether they be
                             be oil
                                 oilchanges/windshield
                                     changes/windshield wiper
                                                        wiper replacement,
                                                               replacement, it

                 Pro-Tech’ss unauthorized
simply prohibits Pro-Tech'   unauthorized use
                                          use (in
                                              (in whatever
                                                  whatever form
                                                           form that may take) of

   Madison’s confidential
EJ Madison's confidential trade secret information outside of the Project and/or to

circumvent EJ
circumvent    Madison. (RR
           EJ Madison.  (RRIV,
                            IV,Plt.'s
                                Plt.’sEx.
                                       Ex.1)1) (Recitals
                                             (Recitals 91¶1-3)
                                                           1-3)(Agreement
                                                                (Agreement91
                                                                           ¶

          TheAgreement
1(d)(e)). The Agreement restricted
                         restricted use
                                    use of
                                        of the
                                            the confidential
                                                confidential information to "project-
                                                                            “project-

related business,”
related business," i.e., Pro-Tech
                         Pro-Tech “was                      the EL
                                  "was not permitted to use the EL Hollingsworth
                                                                   Hollingsworth

contact for
contact for anything
            anythingoutside
                     outsidethe
                             theproject.”
                                 project." (RR
                                           (RR III,
                                               III, 26);
                                                    26); (RR
                                                         (RR IV,
                                                             IV, Plt.’s Ex. 1)
                                                                 Plt.'s Ex.

(Agreement ¶911(d)(e)).
(Agreement     1(d)(e)). Additionally,
                         Additionally,Pro-Tech
                                       Pro-Techwas
                                               was free
                                                    free to
                                                          to do business with EL
                                                             do business

Hollingsworth inin whatever
Hollingsworth      whateverform
                            formas
                                 as long
                                    long as it obtained
                                         as it  obtained EJ
                                                         EJ Madison's
                                                            Madison’s written
                                                                      written

               (R III,
authorization. (R III, 87, 165-166).

      The record here contains
      The             contains ample
                               ample evidence
                                     evidence that EJ
                                                   EJ Madison's
                                                      Madison’s relationship
                                                                 relationship

with EL Hollingsworth constituted its valuable trade secret information whether as

a customer, financial partner or contractual
                                 contractual relationship
                                             relationship and that the
                                                                   the introduction
                                                                        introduction

was made only after EJ Madison and EL Hollingsworth had entered into their own

confidentiality and
confidentiality and non-circumvention
                    non-circumventionagreement.
                                      agreement. Further, EJ Madison made the

introduction to Pro-Tech in reliance
introduction                reliance on
                                     on Pro-Tech'
                                        Pro-Tech’ss promises in the Agreement—
                                                                    Agreement—

and would not have made
                   made itit otherwise
                             otherwise (RR
                                       (RR III,
                                           III, 65,
                                                65, 67,
                                                    67, 68,
                                                        68, 69). Again, because of
                                                            69). Again,

    considerable time
the considerable          money aa company
                 time and money     company spends
                                             spends to
                                                     to develop
                                                         develop relationships,
                                                                  relationships,

contractual relationships,
contractual relationships, customers
                           customersand/or
                                     and/or contacts,
                                            contacts,itit is
                                                          is imperative,
                                                             imperative, and
                                                                         and was
                                                                             was to


                                         27
Warren and EJ Madison, that same
                            same remain
                                 remain protected
                                        protected trade
                                                   trade secret
                                                         secret information.
                                                                 information. (RR

III 69).
III 69). Furthermore,
           Furthermore, the
                         theTUTSA
                             TUTSAprotects
                                   protects broad
                                             broadcategories
                                                   categories of
                                                               ofinformation
                                                                   information

(including potential
(including potential customers)
                     customers)where
                                wherethe
                                      theowner
                                         ownerof
                                               of the trade secret
                                                  the trade secret has taken
                                                                        taken

reasonable measures
reasonable measures to
                    to keep
                       keep the information
                                information secret
                                            secret and the information
                                                           information was not

generally known
generally known to
                to the person
                       person to who is in aa position
                                              position to
                                                        to derive
                                                           derive economic
                                                                  economic benefit
                                                                           benefit

     it.44
from it.

        There is simply
        There     simply no
                         no question
                             question but
                                       but that
                                            thatEL
                                                 ELHollingsworth
                                                    Hollingsworth constituted
                                                                   constituted EJ
                                                                               EJ

Madison’s trade
Madison's trade secret
                secret information
                        information (as its
                                        its customer
                                            customer or
                                                     or potential
                                                        potential customer),
                                                                  customer), which

   Madison had taken reasonable
EJ Madison           reasonable efforts
                                efforts to protect
                                           protect (via the Agreement
                                                            Agreement and the

timing of the
timing    the disclosure),
              disclosure), that the
                                 the information
                                      information was
                                                  was previously
                                                      previously unknown
                                                                 unknown to Pro-
                                                                            Pro-

Tech, and from
          from which
               which itit stood,
                          stood, and
                                 and did,
                                     did,derive
                                          deriveeconomic
                                                 economicbenefit.
                                                          benefit. (RR III, 65, 67,

68, 69, 83, 124, 140-141) (RR IV,
                              IV, Plt.’s
                                  Plt.'s Ex. 5).

        Therefore, as
        Therefore, as to Findings Nos.
                      to Findings Nos. 7,       11, reviewing
                                       7, 9 and 11,  reviewing the instrument
                                                                   instrument as a

whole in
whole in an effort
            effort to
                   to harmonize
                      harmonize and give effect
                                and give effect to all the
                                                to all  the provisions
                                                             provisions of
                                                                        of the
                                                                           the



4
4 The Texas Uniform Trade Secret  Secret Act
                                          Act defines
                                              defines “trade
                                                        "trade secret”
                                                               secret" as:   "Trade secret" means all forms
                                                                         as: "Trade
      types of
and types    of information,
                 information, including
                                 including business,
                                             business, scientific,
                                                         scientific, technical,
                                                                      technical, economic,
                                                                                  economic, or or engineering
                                                                                                   engineering
information, and
information,               formula, design,
                and any formula,      design, prototype,
                                                prototype, pattern,
                                                            pattern, plan,
                                                                       plan, compilation,
                                                                              compilation, program
                                                                                             program device,
                                                                                                        device,
program, code, device, method, technique,          process,  procedure,   financial data,
                                       technique, process, procedure, financial data, or   or list of actual or
potential customers
potential   customers or or suppliers,
                             suppliers, whether
                                          whether tangible
                                                    tangible or
                                                              or intangible
                                                                  intangible and    whether or how
                                                                               and whether         how stored,
                                                                                                        stored,
compiled, or memorialized physically, electronically, graphically, photographically, or in writing
         the owner
if: (A) the  owner ofof the
                         the trade
                              trade secret
                                     secret has
                                            has taken
                                                 taken reasonable
                                                        reasonable measures
                                                                     measures under
                                                                                 under the
                                                                                        the circumstances
                                                                                            circumstances to
keep the information secret; and (B) the information derives independent economic value, actual
    potential, from not being
or potential,               being generally
                                   generally known to, and  and not
                                                                 not being
                                                                       being readily
                                                                              readily ascertainable
                                                                                       ascertainable through
                                                                                                       through
proper means
         means by, another person
                                person who can obtain economic
                                                           economic value
                                                                        value from
                                                                               from the disclosure
                                                                                         disclosure or use of
the information. Tex.
                    Tex. Civ.
                          Civ. Prac.
                                Prac. && Rem.
                                          Rem. Code § 134A.002(6).

                                                      28
Agreement, the
Agreement,  the restrictions
                restrictions relate
                              relate not    Pro-Tech’ss services,
                                     not to Pro-Tech'   services, but rather, EJ
                                                                  but rather, EJ

Madison’s trade
Madison's trade secret information.

         Furthermore, as
         Furthermore, as to Finding
                            Finding No. 8, because
                                           because the Agreement
                                                       Agreement neither refers to

                         Pro-Tech’ss ability to provide services outside the Project as
nor purports to restrict Pro-Tech'

long it does
long    does not
             not violate
                  violate the
                           thenon-use
                               non-use orornon-circumvention
                                            non-circumvention provisions,
                                                              provisions, to assert
                                                                             assert

“additional consideration"
"additional consideration” was required improperly
                                        improperly supplies
                                                   supplies terms not contained
                                                                      contained

within the Agreement and which are outside
                                   outside the record.'5
                                           the record.

         Likewise, in regard to Finding No. 10, the Agreement does not require that

   Madison provide
EJ Madison provide to
                    to Pro-Tech
                       Pro-Tech“a
                                "a written
                                   writtencopy
                                           copyofofits
                                                    its customer
                                                        customerlist.”     the
                                                                 list." On the

contrary, the Agreement protects the disclosure, in whatever
                                                    whatever form,
                                                             form, of
                                                                   of EJ
                                                                      EJ Madison’s
                                                                         Madison's

confidential information.
confidential  information.(RR
                            (RRIV,
                                 IV, Plt.’s
                                   Plt.' s Ex.Ex.
                                               1) 1) (Recitals
                                                  (Recitals    ¶¶ 2-3;Agreement
                                                            9[912-3;   Agreement  ¶¶ 1-
                                                                                9191

     Furthermore, as
2). Furthermore,   as set
                       setforth
                           forthabove,
                                 above,even
                                        evenpotential
                                             potential customers,
                                                        customers, and
                                                                   and arguably
                                                                       arguably EL

Hollingsworth as a contact,
Hollingsworth      contact, potential
                            potential customer,
                                      customer, customer,
                                                customer, contractual
                                                          contractual relationship
                                                                      relationship

and/or financing partner, constitutes protected trade secret information.
                                                              information. See n. 3

supra.

         IX. There
               Thereis islegally
                           legallyand
                                   andfactually
                                        factuallyinsufficient
                                                  insufficientevidence
                                                               evidence to
                                                                         to support
                                                                            support the
         court’s finding no. 12 that Plaintiff did not incur attorney’s
         court's                                                attorney's fees.



         5
         5 The record  is devoid of any evidence at trial regarding any failure of consideration and,
thus, the issue
thus,      issue was/is
                   was/is arguably
                           arguably not before
                                           before the
                                                    the trial
                                                         trial court
                                                                court or
                                                                       or this
                                                                           thisCourt.
                                                                                Court.Moreover,
                                                                                        Moreover, defendant
                                                                                                      defendant
although it pled
although      pled lack
                    lack of
                          of consideration
                              consideration failed
                                              failed to
                                                      to verify
                                                          verify its
                                                                  itspleading.
                                                                      pleading.LackLackofofconsideration
                                                                                             consideration for a
contract is an affirmative
contract       affirmative defense to its
                                       its enforcement.
                                           enforcement. Mclemon
                                                            Mclemon v. Dynegy Inc., 347 S.W.3d 315 (Tex.
App.—Houston [14th
App.—Houston      [14th Dist.]
                        Dist.] 2011, no pet.) (See Tex.R. Civ.
                                                             Civ. P. 94; Kaye/Bassman
                                                                           Kaye/Bassman Intern.
                                                                                           Intern. Corp.
                                                                                                   Corp. v. Help
             Inc., 321
Desk Now, Inc.,
Desk                    S.W.3d 806,
                   321 S.W.3d    806, 814   (Tex.App.-Dallas 2010,
                                      814 (Tex.App.-Dallas        2010,pet.
                                                                          pet.denied).
                                                                               denied). It  must be pleaded
                                                                                        It must      pleaded by
verified denial. Tex.
                 Tex. R.
                      R. Civ. Proc. 93(9).
                                                       29
      X.    There is legally and factually insufficient evidence to support the
      court’s lack
      court's lack of finding
                       finding No.
                               No. 12
                                   12 that
                                       that Plaintiff
                                            Plaintiff alleged
                                                      alleged its
                                                              its entitlement
                                                                   entitlement to
      attorney’s fees,
      attorney's fees, and      parties agreed
                        and the parties  agreed that attorney's
                                                      attorney’s fees
                                                                  fees would
                                                                        would be
      proven in a separate
                  separate hearing.
                            hearing. [Amended No. 12]

   The record conclusively proves the parties stipulated
                                              stipulated that
                                                         that attorney’s
                                                              attorney's fees would

be addressed
be addressed in
              in aa separate
                    separatehearing.
                             hearing. (RR
                                      (RR III,
                                          III, 103).
                                               103). ItItappears
                                                          appears the
                                                                   the trial
                                                                        trial court
                                                                               court

overlooked the
overlooked  the stipulation
                stipulationof
                            ofthe
                               theparties
                                  partiesininthis
                                              thisregard.
                                                   regard. In any event, there is no

evidence support the finding (or lack thereof) or the finding (or the lack thereof) is

against the
against     great weight
        the great weight and
                         and preponderance
                             preponderance such
                                            such that
                                                 that the matter should
                                                      the matter should be
                                                                        be

remanded for a hearing
               hearing on
                       on Plaintiff’s
                          Plaintiff's attorney’s
                                      attorney's fees.

         such, there
      As such,  there is
                       is simply
                           simply no
                                   noprobative
                                      probative evidence,
                                                 evidence, or
                                                            or reasonable
                                                                reasonable inferences
                                                                            inferences

therefrom, which
therefrom,       supports the above findings.
           which supports           findings. Hydrocarbon
                                              Hydrocarbon Management, Inc.,

861 S.W.2d
861 S.W.2d at 431. Thus,
           at 431.  Thus,the
                          thefindings
                               findings are
                                         arelegally
                                             legally insufficient
                                                      insufficient to
                                                                   to support
                                                                       support the
                                                                               the

judgment, and
judgment,     Appellant’s "no-evidence"
          and Appellant's  “no-evidence” points should be
                                         points should be sustained.
                                                            sustained.

Alternatively, viewing
Alternatively, viewing the
                        the Agreement
                            Agreement as
                                      as aa whole,
                                            whole, the
                                                   the evidence
                                                       evidence supporting
                                                                supporting the

findings is so weak and against the great weight and preponderance of the evidence

      be clearly
as to be clearly and
                 and manifestly
                     manifestly wrong such that same
                                                same are
                                                     are factually
                                                         factually insufficient
                                                                   insufficient to

support the judgment. Id.

                              CONCLUSIONS OF LAW

                court erred
      XI. The court   erred as
                            as a matter
                                 matter of law in its conclusion
                                                      conclusion of law no. 1
                             breach the
      that Defendant did not breach the Non-Disclosure
                                        Non-Disclosure Non
                                                         Non Circumvention
                                                              Circumvention
      Agreement.



                                         30
      XII. The court erred as a matter of law in failing to find, or in its lack
                       Defendant’s failure to turn over the profits, benefits and
      of finding, that Defendant's
      proceeds of its commercial relationship with EL Hollingsworth does not
      constitute breach
                 breach of
                         of fiduciary
                             fiduciaryduty. [Additional no. 6]
                                      duty. [Additional

                 court erred
      XIII. The court    erred as
                               as a matter
                                    matter of law in its conclusion
                                                         conclusion of law no. 2
      that there
      that there is
                  is no
                      no language
                          language in
                                    inthe
                                       theNon-Disclosure
                                            Non-Disclosure Non
                                                             NonCircumvention
                                                                  Circumvention
      Agreement reflecting
      Agreement    reflecting an
                              an intent
                                  intent that
                                         that services
                                              services not related to nor arising
                                                       not related         arising
      from the
      from  the conversion
                 conversion process
                              process constitute
                                       constitute trade secrets
                                                         secrets or
                                                                  or confidential
                                                                      confidential
      financial and business information.

                  court erred
      XIV. The court    erred as
                              as a matter
                                   matter of law in its conclusion
                                                        conclusion of
                                                                    of law no. 3
      that the terms of the Non-Disclosure Non Circumvention Agreement did
      not prohibit Defendant from entering into a business
                                                     business relationship with
      E.L. Hollingsworth
      E.L.  Hollingsworth to   provide mechanical
                            to provide  mechanical services
                                                     services unrelated
                                                              unrelated to   the
                                                                          to the
      conversion process.

                 court erred
      XV. The court    erred as
                             as a matter
                                   matter of law in its conclusion
                                                         conclusion of law no. 4
            Defendant did not utilize
      that Defendant           utilize Plaintiffs'
                                       Plaintiffs’ trade
                                                   trade secrets
                                                          secrets or
                                                                  or confidential
                                                                      confidential
      financial and
      financial        business information
                 and business    information inin entering
                                                     entering into
                                                                into aa business
                                                                         business
      relationship with E.L. Hollingsworth to provide mechanical services.

                 court erred
      XVI. The court    erred as
                              as a matter
                                   matter of law in its conclusion
                                                        conclusion of law no. 5
      that Plaintiff's
      that  Plaintiff’s claim
                         claimforfor breach
                                     breach of   contract fails
                                              of contract    fails for  lack of
                                                                   for lack  of
      consideration.

      The legal
      The legal conclusions
                conclusions of
                            of the trial court
                               the trial court are not
                                                   not binding
                                                       binding on
                                                               on the
                                                                   the appellate
                                                                        appellate

court; appellate
court; appellate courts
                 courts are
                        are free
                            free to draw
                                    draw their
                                          their own
                                                own legal
                                                     legal conclusions
                                                            conclusions and
                                                                        and review
                                                                            review

those conclusions
those conclusions de  novo.
                  de novo.        Hydrocarbon
                                  Hydrocarbon Management,
                                              Management,Inc.
                                                          Inc. v.  Tracker
                                                               v. Tracker

Exploration, Inc., 861 S.W.2d 427, 431 (Tex. App.—Amarillo 1993, no writ); see

also Austin Hardwoods, Inc. v. Vanden Berghe, 917 S.W.2d 320, 322 (Tex. App.—

        1995, writ denied).
El Paso 1995,      denied). When
                            When aaparty
                                    party requests
                                           requests findings
                                                     findings and
                                                              and the
                                                                  the court
                                                                      court files
                                                                            files

them, the court of appeals can presume that omitted findings support the judgment


                                       31
only when (1) an element of the ground of recovery was included in the findings of

fact, (2) the
fact,      the omitted
               omitted element
                       element was
                               was not
                                   not properly
                                        properly requested,
                                                 requested, and
                                                            and (3) the
                                                                     the omitted
                                                                          omitted

finding is supported
           supported by
                     by the
                        the evidence. Tex. R. Civ. Proc. 299; American Nat’l
                            evidence. Tex.                             Nat'l Ins.

Co. v. Paul, 927 S.W.2d 239, 245 (Tex. App.—Austin 1996, writ denied.

Conclusions Nos. 1-5 (and Lack of Finding as to Breach of fiduciary Duty)

      In its Conclusion of Law No. 1, the trial court found:

      Defendant
      Defendant did  not breach
                 did not breach the
                                 the Non-Disclosure
                                      Non-Disclosure Non
                                                     Non Circumvention
                                                          Circumvention
      Agreement.

(CR II,
(CR II, 6). For
             Forthe
                  thereasons,
                       reasons,and
                                andbased
                                    based on
                                           onthe
                                              theevidence,
                                                  evidence, set
                                                             set forth
                                                                  forth above
                                                                         above (in
                                                                               (in

Appellant’s argument
Appellant's argument related
                     related to
                             to the
                                the court’s findings of fact), i.e., a review of the
                                    court's findings

provisions of the Agreement,
provisions        Agreement, it is clear
                                   clear Pro-Tech
                                         Pro-Tech breached the non-use and non-

circumvention terms
circumvention  terms of     Agreement when
                     of the Agreement when it began
                                              began doing
                                                    doing non-project
                                                          non-project related
                                                                      related

business with EL Hollingsworth. As aa matter
                 Hollingsworth. As    matter of
                                             of law,
                                                law, harmonizing
                                                     harmonizing the terms of the

Agreement, itit is readily
Agreement,         readily apparent
                           apparent the Agreement
                                        Agreement protected
                                                  protected the disclosure of EJ
                                                            the disclosure

Madison’s confidential
Madison's confidential information
                       information (here, its relationship
                                              relationship with EL
                                                                EL Hollingsworth)
                                                                   Hollingsworth)

against unauthorized
against unauthorized use
                     use and/or
                         and/or circumvention
                                circumventionby
                                              by Pro-Tech. When Pro-Tech
                                                 Pro-Tech. When  Pro-Tech

began doing business with EL Hollingsworth without EJ Madison’s authorization,
                                                      Madison's authorization,

                            non-circumvention provisions
it breached the non-use and non-circumvention provisionsof
                                                         of the
                                                             the Agreement.
                                                                 Agreement. As

such, Pro-Tech is liable for breach of contract.

      The trial
      The trial court's
                court’s Conclusion
                        Conclusion of
                                   of Law
                                      Law No.    finding no
                                          No. 1 finding  no breach
                                                            breach does
                                                                   does not
                                                                        not

specifically address
specifically  addressAppellant’s
                     Appellant'sbreach
                                 breachofof fiduciary
                                            fiduciary duty
                                                      duty cause     action.
                                                           cause of action.
                                          32
However, after
However,  after the  trial court
                 the trial court filed
                                  filed its
                                         its findings,
                                              findings, Appellant
                                                        Appellant timely
                                                                  timely filed
                                                                         filed its
                                                                               its

“Plaintiff’s Request
"Plaintiff's Request for Amended Findings
                     for Amended Findings of Fact and
                                          of Fact and Conclusions
                                                      Conclusions of Law”
                                                                  of Law"

wherein it requested an additional conclusion of law as follows:

      [Additional] 6.
      [Additional]   6. Defendant’s
                         Defendant's failure
                                      failure to
                                               to turn      the profits,
                                                  turn over the profits, benefits
                                                                         benefits and
                                                                                  and
      proceeds of its
      proceeds      its commercial
                         commercial relationship
                                     relationship with       Hollingsworth does
                                                    with EL Hollingsworth   does not
      constitute breach of fiduciary duty.

(CR II, 8-11). Thus,
               Thus, Appellant
                     Appellant can
                               can challenge
                                   challenge lack of this finding. See e.g., Vickery

   Commission for Lawyer
v. Commission     Lawyer Discipline,   S.W.3d 241,
                         Discipline, 5 S.W.3d 241, 254
                                                    254 (Tex.App.—Houston
                                                         (Tex.App.—Houston

[14th Dist.] 1999,
             1999, pet.
                   pet. denied).  Thesame
                        denied). The  samefacts
                                           factsand
                                                 andreasoning
                                                     reasoning which
                                                               which evidence
                                                                     evidence and

                                                 Pro-Tech’ss failure to turn over the
support breach of contract likewise support that Pro-Tech'

proceeds constitutes breach of its fiduciary duty.

      In its Conclusion of Law No. 2, the trial court found:

            There is no language in the Non-Disclosure Non Circumvention
      Agreement reflecting an intent that services not related to nor arising
                conversion process constitute trade secrets
      from the conversion                            secrets or
                                                              or confidential
                                                                 confidential
      financial and business information.

(CR II, 6).

      In its Conclusion of Law No. 3, the trial court found:

             The   terms ofofthethe
             The terms               Non-Disclosure Non
                                  Non-Disclosure       NonCircumvention
                                                              Circumvention
      Agreement did
      Agreement                     Defendant from entering
                  did not prohibit Defendant        entering into a business
                                                                    business
      relationship
      relationship with E.L. Hollingsworth to provide
                                                provide mechanical
                                                        mechanical services
                                                                     services
      unrelated to the conversion process.

(CR II, 6).

      In its Conclusion of Law No. 4, the trial court found:


                                         33
      Defendant
      Defendant did    not utilize
                  did not  utilize Plaintiffs'
                                    Plaintiffs’ trade
                                                 trade secrets
                                                        secrets or
                                                                 or confidential
                                                                     confidential
      financial and
      financial       business information
                 and business    information in      entering into
                                                  in entering  into aa business
                                                                        business
      relationship with E.L. Hollingsworth to provide mechanical services.

(CR II, 7).

      In its Conclusion of Law No. 5, the trial court found:

      Plaintiff’s
      Plaintiff's claim for breach of contract fails for lack of consideration.

(CR II, 7).

      Furthermore, the
      Furthermore,  the Agreement
                        Agreementdoes
                                  does not
                                       not address
                                           address nor
                                                   nor purport
                                                       purport to restrict, or
                                                               to restrict,

                                     Pro-Tech’ss non-project
classify as protected trade secrets, Pro-Tech'   non-project related
                                                             related services
                                                                     services so as to

somehow act
somehow act as a "non-competition"
                 “non-competition” clause. Conclusions of law Nos. 2-4 which
                                   clause. Conclusions

                                                     Pro-Tech’ss “competition”
are premised on a non-existent provision prohibiting Pro-Tech'   "competition" are

manifestly wrong as a matter of law and should be reversed.

      Finally, for
      Finally, for the reasons
                       reasons forth
                               forth in the argument
                                            argument related
                                                     related to the finding of fact

           trial court's
no. 8, the trial court’s conclusion
                         conclusion of law no. 5 that
                                                 that EJ
                                                      EJ Madison's
                                                         Madison’s claim
                                                                   claim fails for

lack of consideration is without basis as a matter of law and should be reversed.

      XVII. The court erred as a matter of law in its conclusion of law no. 6
               alleged trade
      that the alleged trade secret
                             secret information
                                     information was readily
                                                      readily ascertainable
                                                               ascertainable by
      proper means, such as availability in trade journals, reference books, or
      published materials.

      XVIII.        The court erred
                               erred as a matter of law in its
                                                           its conclusion
                                                               conclusion of law
      no. 77 that
              that the
                    thealleged
                        allegedproprietary
                                proprietary information
                                             information was
                                                          was not
                                                                not substantially
                                                                     substantially
      secret.




                                          34
            The alleged trade secret information was readily ascertainable
         proper means,
      by proper  means, such
                         such as
                              as availability
                                  availability in
                                                in trade
                                                    trade journals,
                                                           journals, reference
                                                                      reference
      books, or published materials.

             The alleged proprietary
             The alleged  proprietary information
                                       information was not
                                                        not substantially
                                                             substantially
      secret.

(CR II, 7). First,
            First, there
                    there is
                          is no
                             no evidence in the record to support
                                                          support these
                                                                  these conclusions.
                                                                        conclusions. In

fact, as noted above, Rivera admitted he did not know of EL Hollingsworth prior to

the introduction
the introduction by
                  by Warren. (RR III,
                     Warren. (RR  III, 124).
                                        124). Moreover,
                                               Moreover,such
                                                         suchinformation
                                                              information fits
                                                                          fits

squarely into the definition
squarely          definition of what constitutes
                                     constitutes a protected trade secret under the

           Tex. Civ. Prac.
TUTSA. See Tex.      Prac. & Rem.
                             Rem. Code
                                  Code § 134A.002(6).
                                         134A.002(6). These
                                                      These findings
                                                            findings are

unsupported as a matter of law and should be reversed.

            The court
      XIX. The   court erred as a matter
                                      matter of law in its
                                                       its conclusion
                                                           conclusion of law no. 8
      that Plaintiff is not entitled to any damages, actual or punitive.

   In its Conclusions of Law No. 8, the trial court found:

             Plaintiff is not entitled to any damages, actual or punitive.

(CR II, 7). The
            The trial
                 trial court's
                       court’sconclusion
                               conclusionin
                                          in this
                                              this regard
                                                    regard is
                                                            is necessarily
                                                               necessarily premised on its

factual findings
        findings of
                 of no breach
                       breach and no misappropriation
                                     misappropriation of
                                                      of trade
                                                          trade secrets. Appellant
                                                                secrets. Appellant

would submit the court’s factual findings on the elements of breach of contract and
                 court's factual

fiduciary duty,
fiduciary duty, as well as
                as well as misappropriation
                           misappropriation of trade secrets,
                                            of trade secrets, are legally
                                                                   legally and
                                                                           and

factually sufficient such that they should be reversed and, alternatively, remanded.

      Additionally, EJ
      Additionally, EJ Madison
                       Madison proved
                               proved itit was
                                           was damaged
                                               damaged pursuant
                                                       pursuant to
                                                                to the terms of

the Agreement in the amount of the proceeds it provided that Pro-Tech had a duty


                                           35
    turnover in
to turnover     the event
             in the event of
                          of aabreach.
                                breach. Pro-Tech'
                                          Pro-Tech’s owninvoicing
                                                  s own  invoicing records
                                                                    records for
                                                                            for

maintenance provided
maintenance  providedtoto EL Hollingsworth, beginning
                          EL Hollingsworth, beginningJuly
                                                      July 21, 2014 and
                                                           21, 2014 and

extending through
extending through May
                  May 22,
                      22, 2015,
                          2015, reflect
                                reflect a total of
                                                of $212,290.09,
                                                   $212,290.09, for an
                                                                    an average
                                                                       average

monthly revenue
        revenue paid
                paid by
                     by EL
                        EL Hollingsworth
                           Hollingsworthof
                                         of$21,229.09.  (RR III,
                                            $21,229.09. (RR III, 83, 140-141);

        Plt.’ss Ex.
(RR IV, Plt.'   Ex. 5). This number
                    5). This  number isis consistent
                                           consistent with
                                                      with the
                                                            the amount
                                                                amount incurred
                                                                       incurred by EJ

Madison prior
Madison prior to
              to EL
                 EL Hollingsworth
                    Hollingsworthassuming
                                  assumingoperations.
                                           operations.(RR
                                                       (RRIII,
                                                           III,83,
                                                                83,141).
                                                                    141). EJ

Madison, at
Madison,        highest point,
         at its highest point, compromised
                                compromised 10     15 percent
                                            10 to 15   percent of
                                                                ofPro-Tech'
                                                                   Pro-Tech’ss

business or
business    approximately 2.5
         or approximately 2.5 million
                              million dollars
                                      dollarsin
                                              in annual
                                                 annual sales.  (RR III,
                                                         sales. (RR III, 141-143,
                                                                         141-143,

      Riveraacknowledged
163). Rivera acknowledged that
                           that Pro-Tech
                                Pro-Tech began
                                         began doing
                                               doing maintenance
                                                     maintenance work for EL

Hollingsworth on
Hollingsworth on or
                 or about
                    about August
                          August 1,
                                 1, 2014
                                    2014 and
                                         and continued
                                             continued to
                                                        to do
                                                           do so
                                                              so at the time of

        (RR III,
trial. (RR  III, 119).

                Pro-Tech’ss invoicing, the proceeds represent $212,290.09 through
       Based on Pro-Tech'

May 2015
May 2015 and
          and $21,229.09
               $21,229.09 each
                          each month
                               month thereafter
                                      thereafter through
                                                 through time
                                                          time of  trial
                                                               of trial

($504,498.16)6 and ongoing.
($504,498.16)6     ongoing. (RR
                             (RR 153).
                                 153). This
                                        Thisfinding
                                             findingshould
                                                     should be
                                                            be reversed
                                                                reversed and
                                                                         and the

issue remanded
issue remanded to
               to the trial court for
                                  for aa determination
                                          determination as to
                                                           to future
                                                               future damages,
                                                                      damages, i.e.,

beyond the date of trial.

       XX. The court erred erred as a matter of law in its conclusion
                                                           conclusion of law no. 9
       that Pursuant to §38.001 et seq., Tex. Civ. Prac. & Rem. Code, Plaintiff
       is not entitled to attorney’s
                          attorney's fees.

       In its Conclusions of Law No. 9, the trial court found:


       6
       6 $21,229.09 multiplied
        $21,229.09  multiplied by
                               by the number of months
                                  the number    months (24)
                                                        (24) beginning
                                                             beginning June
                                                                       June 2015
                                                                            2015 and
                                                                                 and
extending through May 2017.
                                         36
            Pursuant
            Pursuant to  to §38.001
                             §38.001 et   seq., Tex.
                                       et seq., Tex. Civ. Prac.
                                                          Prac. &
                                                                & Rem.
                                                                  Rem. Code,
                                                                       Code,
      Plaintiff is not entitled to attorney’s
                                   attorney's fees.

   (CR II, 7). The
               Therecord
                   record conclusively
                           conclusively proves
                                        proves the parties stipulated that attorney’s
                                                                           attorney's

fees would be addressed
              addressed in
                         in aa separate
                               separatehearing.
                                        hearing. (RR III, 103). As set
                                                          103). As set forth above, it

appears the
appears the trial
            trial court
                  court overlooked
                        overlooked the
                                    the stipulation
                                         stipulationof
                                                     ofthe
                                                        theparties
                                                            partiesininthis
                                                                        thisregard.
                                                                             regard. In

                                   conclusion is contrary the parties stipulation and
any event, as a matter of law this conclusion

should be reversed.

                                     PRAYER

      For these
      For  these reasons,
                  reasons, Appellant
                           Appellant respectfully
                                     respectfully requests
                                                   requeststhat
                                                            that the  trial court's
                                                                  the trial court’s

judgment be
judgment    reversed, alternatively,
         be reversed, alternatively, remanded
                                      remandedtotothe
                                                   the trial court for
                                                       trial court for further
                                                                        further

proceedings and that Appellant be awarded its costs of court.

                                        TROY C. BROWN
                                        Attorney at Law
                                        300 E. Main
                                        10th Floor, Suite 1000
                                        El Paso, Texas 79901
                                        Phone: (915)
                                                (915) 543-9669
                                                      543-9669
                                        Fax: (888)
                                              (888) 922-3353
                                                    922-3353
                                        E-mail: troy@tcblegal.com
                                                 troy@tcblegal.com

                                        /s/Troy
                                        IslTroy C. Brown________________
                                                   Brown
                                        TROY C. BROWN
                                        State Bar Number 00783735
                                        Attorney for Appellant




                                          37
                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument was
served on the 21st day of May
                            May 2018,
                                  2018, to:
                                         to: Mannie
                                             Mannie Kalman,
                                                      Kalman, 1214
                                                               1214 Montana
                                                                    Montana Avenue,
   Paso, Texas
El Paso,  Texas 79902,
                 79902, pursuant
                          pursuant to the
                                       the Court's
                                             Court’s Notice
                                                     Notice of
                                                             ofElectronic
                                                                Electronic Procedures
                                                                            Procedures
established
established     forforthethe El  El Paso
                                       Paso County
                                                 County Courts
                                                             Courts via via e-mail:
                                                                                e-mail:
mkalman@manniekalman.com.

                                        /s/Troy
                                        IslTroy C. Brown________________
                                                   Brown
                                        Troy C. Brown




                          CERTIFICATE OF COMPLIANCE

      I hereby certify that the foregoing Appellant’s
                                          Appellant's Brief contains 8,209 words.


                                        /s/Troy
                                        IslTroy C. Brown________________
                                                   Brown
                                        TROY C. BROWN




                                          38
                    IN THE COURT OF APPEALS
                    EIGHTH DISTRICT OF TEXAS
                          EL PASO, TEXAS
       _____________________________________________________

                               08-17-00229-CV
                           NO. 08-17-00229-CV


                           EJ MADISON, LLC.

                                      v.

                      PRO-TECH DIESEL, INC.
       _____________________________________________________
                                    TH
              Appealed from the 205
                                205TH  Judicial District Court
                        of El Paso County, Texas
       _____________________________________________________

                               APPENDIX
       _____________________________________________________

Judgment (August 3, 2017) (Ex. A)

Tex. Govt. Code §554.002 (Ex. B)

Excerpts from Tea.texas.gov (Ex. C)
El Paso County - 205th District Court                                                           Filed 8/11/2017 3:16 PM
                                                                                                        Norma Favela Barceleat
                                                                                                                   District Clerl,
                                                                                                                El Paso Count
                                                                                                                 2015DCV247E
                              IN THE DISTRICT COURT OF EL PASO COUNTY, TEXAS
                                           205TH JUDICIAL DISTRICT

             El MADISON, LLC., a Texas
             limited liability company,
             SOUTHWEST TRUCK LEASING,
             a Texas Limited liability company, and
             LIM LEASING, LLC, a Texas
             limited liability company
                    Plaintiffs,

             v.                                                   Cause No. 2015-DCV2479

             PRO-TECH DIESEL, INC.,
                  Defendant.

                                                    FINAL JUDGMENT

             On the date set forth below, came on to be heard the above entitled and numbered cause;

             Plaintiffs EJ MADISON, LLC, SOUTHWEST TRUCKING LEASING, and RIM LEASING,

             LLC, appeared through its attorney of record; Defendant PO-TECH DIESEL, INC., appeared

             through its attorney of record. All matters in controversy, legal and factual, were submitted to

             the court for its determination. The court heard the evidence and arguments of counsel and

             announced its decision for the Defendant.

             The court orally RENDERED judgment for Defendant on June 20, 2017. This written judgment

             memorializes that rendition.

             IT IS accordingly ORDERED, ADJUDGED AND DECREED that the Plaintiff take nothing by

             its suit.

             All relief not expressly granted herein is denied.


             Signed on this             3.-       day o             , 2017.




                                                                                                                           14
