                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-12-00512-CV


HEAT SHRINK INNOVATIONS,                                              APPELLANTS
LLC; KEVIN WOLFE; AND
DEBORAH WOLFE

                                      V.

MEDICAL EXTRUSION                                                       APPELLEE
TECHNOLOGIES-TEXAS, INC., A
TEXAS CORPORATION


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          FROM THE 367TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 2011-50408-367

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                       MEMORANDUM OPINION 1

                                   ----------

      Appellants Heat Shrink Innovations, LLC, Kevin Wolfe, and Deborah Wolfe

appeal the trial court’s judgment against them and in favor of appellee Medical

Extrusion   Technologies-Texas,   Inc.,    a    Texas   corporation    (METT)   for

      1
      See Tex. R. App. P. 47.4.
misappropriation of trade secrets, breach of fiduciary duty, and conspiracy. We

modify the trial court’s judgment and affirm the judgment as modified.

                               Background Facts

      Tom Bauer operated a company called Medical Extrusion Technologies,

Inc. in California that manufactured tubing used in medical devices such as

catheters. The tubing is made of fluorinated ethylene propylene (FEP) resin that

goes through a two-step process using two machines:          an extruder and an

expander. In very simple terms, the FEP is first melted and “extruded” through

the extrusion equipment to create the tubing, and then the tubing is “expanded”

using a heat process in the expansion equipment.

      Bauer met Kevin Wolfe 2 in 2002 or 2003 when Wolfe sold machine parts

for extrusion equipment. Sometime in 2004 or 2005, Wolfe suggested that he

and Bauer create a tubing manufacturing company in Texas.                The exact

agreement between Wolfe and Bauer is unclear, but it is undisputed that Bauer

and his wife, Rikki, formed the corporation, METT, in 2006 and purchased a

building in Lewisville to house the operation. Bauer and Rikki were the sole

officers and shareholders of METT. Wolfe worked as METT’s manager. Wolfe

did not supply any capital, but Bauer testified that Wolfe “would have a vested

interest after several years of working at the business that could only be realized

at the time we would sell the business.” Wolfe testified that he believed he was

      2
        For clarity and convenience, we will refer to Kevin Wolfe as “Wolfe” and
his wife, Deborah Wolfe, as “Deborah.”

                                        2
supposed to receive a 10% ownership interest after three years, another 10%

after four years, and after five years, he was to have a 30% interest in the

company.

      Bauer also hired Deborah as an office manager.           Neither Wolfe nor

Deborah signed a noncompete or nondisclosure agreement. METT provided an

employee handbook that stated that it was “not an employment contract and

[was] not intended to create contractual obligations of any kind.” The handbook

contained a nondisclosure section listing various types of confidential information

including customer lists, financial information, proprietary production processes,

technological prototypes, and tooling design concepts. The handbook stated,

“Employees or former employees of [METT] may be subject to legal action for

disclosing of confidential and/or proprietary information including but not limited

to the above examples.”

      Wolfe and a consultant named Scott Steele created the concept for

METT’s expander machine based upon similar principles used in the expanders

in Bauer’s California company and Wolfe’s former employer, Parker TexLoc.

Wolfe testified that he designed the concept and provided instruction to Steele,

who manufactured the machine. Steele made two more expanders for METT

based off of the original design.

      Wolfe was concerned that he did not have some form of a written contract

with METT, and he spoke with Bauer about his concern in 2005.               Bauer

consulted with a law firm about an agreement, but he did not draft one at that

                                        3
time. It was not until December 2010, after Bauer heard of an incident in which

Wolfe had “an outburst” in front of a new employee over dinner regarding his lack

of a written agreement, that Bauer drafted a contract and offered it to Wolfe.

Wolfe told Bauer he would not accept the contract as written. The two had no

further conversations about a written agreement.

      Beginning in early 2010, while still employed at METT, Wolfe started

seeking investors to start a company to compete against METT. Wolfe’s friend

Terry Upchurch agreed to supply the initial capital for Wolfe’s company. Wolfe

contacted METT’s customer Creganna-Tactx Medical and asked if it would be

interested in changing suppliers. Creganna’s representative, Brent Anderson,

agreed and supplied a letter stating that Creganna would transfer its business to

Wolfe’s company. Anderson also agreed to invest in Wolfe’s company.

      In late 2010, Wolfe hired a mechanical engineer named Robert Terzini to

design expander machines for his new company and Allen Meyer to fabricate the

machines.   Without Bauer’s knowledge, Wolfe brought Terzini and Meyer to

METT’s Lewisville facility to look at METT’s expanders as examples of machines

that Wolfe wanted to build.

      Wolfe incorporated Heat Shrink in February 2011. In April 2011, Wolfe

and Deborah resigned from METT. Heat Shrink’s first expander was completed

in September 2011, and the company began filling customer purchase orders in

October 2011. Heat Shrink used the same type of FEP resin that METT used.

There was a limited amount of resin product available to purchase, and when the

                                       4
manufacturer could not fill METT’s purchase requests, Bauer blamed Heat

Shrink.

      METT sued the Wolfes and Heat Shrink for misappropriation of trade

secrets, breach of fiduciary duty, violations of the Texas Theft Liability Act, unfair

competition, unjust enrichment, tortious interference with business relationships,

civil conspiracy, and conversion. 3 Bauer also sought a temporary restraining

order and temporary and permanent injunctive relief.

      A jury found that Heat Shrink and Wolfe had misappropriated METT’s

trade secrets, that Wolfe had breached his fiduciary duty to METT, that Heat

Shrink had knowingly participated in Wolfe’s breach of fiduciary duty, and that

Wolfe, Deborah, and Heat Shrink had conspired to damage METT.                   They

awarded METT $15,000 in damages for misappropriation of trade secrets,

$600,000 in past lost profits and $94,000 for the cost of the expander machines

for breach of fiduciary duty, and $1,000 in exemplary damages. On April 10,

2012, the trial court entered a final judgment on the jury’s verdict stating that

Heat Shrink and the Wolfes were jointly and severally liable to METT for

$694,000 in damages, that Heat Shrink was solely liable for $15,000 in damages,

and that Wolfe was liable for $1,000 in exemplary damages. The judgment also


      3
        Bauer also sued the Wolfes for an unrelated loan of $7,400, which the
Wolfes admitted they owed and from which they do not appeal. The Wolfes filed
counterclaims against METT for fraud, promissory estoppel, and breach of oral
contract. The trial court’s final judgment ordered that the Wolfes take nothing on
their counterclaims, and the Wolfes do not appeal that part of the judgment

                                          5
permanently enjoined Wolfe and Heat Shrink from “soliciting FEP heat shrink

tubing business from, or providing FEP heat shrink tubing to” a list of METT’s

customers.

      Heat Shrink filed motions for new trial and to modify the judgment, which

sought to lift the permanent injunction. After a hearing on the motions, the trial

court granted Heat Shrink’s motion for new trial.      It then amended its order,

stating, “The Court’s grant of a new trial extends solely to the damage question

6(a) of the Charge as answered by the Jury; the remainder of the Judgment

entered April 10, 2012 is unaffected.” Question 6(a) of the jury charge asked

what amount of past lost profits METT had sustained.

      METT filed a motion to enter an amended final judgment, seeking a

judgment awarding it all of the other damages the jury had awarded (excluding

the past lost profits for which the trial court had granted a new trial) and the

permanent injunctive relief. It also filed a motion to sever the issue of lost profit

damages from the case. The trial court filed an order vacating its orders for new

trial and reinstating the original final judgment of April 10, 2012. Heat Shrink and

the Wolfes then filed this appeal.

                                     Discussion

I. Complete record

      Before we address the appellants’ issues, we must first address METT’s

contention that the appellants did not provide this court with a complete record



                                         6
and therefore “all of [the a]ppellants’ issues should not be considered and should

be denied.”

      During the trial, METT presented testimony from Brent Anderson, manager

of Creganna, in the form of a videotaped deposition. The court reporter asked

whether any party requested that she make a contemporaneous record of the

testimony, and Heat Shrink and METT both waived the making of the record. 4

METT did not state on the record what sections of the deposition it showed the

jury. Heat Shrink also read portions of Anderson’s testimony and stated that it

would “provide this part in writing also to the court reporter.” There is no copy of

Anderson’s testimony in the record.

      In November 2013, Heat Shrink sent a letter to the court reporter asking

that a supplemental reporter’s record be made containing the “omitted” Anderson

testimony.    The letter contained a copy of the deposition with 787 lines

highlighted that Heat Shrink stated were played or read to the jury. METT filed a

motion to strike the supplemental record, which we denied as moot because no

supplemental record had been filed at the time.

      In December 2013, Heat Shrink filed in the trial court a document entitled

“Deposition Transcript of Brent Anderson Presented to the Jury on December 14,

2011.” It again contained, as an exhibit, excerpts from Anderson’s deposition



      4
      Neither Wolfe nor Deborah made a statement on the record regarding the
making of the record, but neither objected that a record was not made.

                                         7
that Heat Shrink claims were shown to the jury. METT filed a motion to strike this

supplemental record, which we granted.

       METT argues that because Anderson’s testimony does not appear in the

record, we must presume that the testimony supports the judgment. See Prather

v. McNally, 757 S.W.2d 124, 125 (Tex. App.—Dallas 1988, no writ) (addressing

former rule of appellate procedure 53(d)); see also Tex. R. App. P. 34.6(c), cmt.

(stating that former rules 53(b), (d), and (e) were merged into rule 34.6(c)).

Current rule 34.6(c) applies when the appellant requests a partial reporter’s

record. See Tex. R. App. P. 34.6(c)(1) (explaining the effect of requesting a

partial record on the appellant’s issues on appeal). Heat Shrink requested and

received the complete reporter’s record in this case. Rule 34.6(c) is therefore

inapplicable. See W&F Transp. Inc. v. Wilheim, 208 S.W.3d 32, 39–40 (Tex.

App.—Houston [14th Dist.] 2006, no pet.) (“The omitted material simply did not

exist to be included in the record because the trial court had dismissed the court

reporter. This situation differs markedly from that contemplated by Rule 34.6(c),

in which one party designates and submits only certain portions of an existing

reporter’s record . . . .”).

       Heat Shrink has attempted a number of ways to get the testimony into the

record after the fact. But nothing in our rules allows for the creation of a new trial

court record. See Gerdes v. Marion State Bank, 774 S.W.2d 63, 65 (Tex. App.—

San Antonio 1989, writ denied) (“[A]fter an appeal has been perfected, the trial

court may not change the record that existed at the time the judgment was

                                          8
granted.”); see also Richards v. Comm’n for Lawyer Discipline, 35 S.W.3d 243,

251 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (“To allow supplementation

at this late date would create a new trial court record.”). The parties failed to note

on the record what portions of the testimony were heard by the jury.

       Parties are not required to have a contemporaneous record made every

time deposition testimony is submitted into evidence.           See Tex. R. App. P.

13.1(a) (stating that a court reporter does not have to make a record of a

proceeding when excused by agreement of the parties). However, parties must

exercise diligence in ensuring that a sufficient record is before the court on

appeal. See Piotrowski v. Minns, 873 S.W.2d 368, 370 (Tex. 1993) (“At every

stage of the proceedings in the trial court, litigants must exercise some diligence

to ensure that a record of any error will be available in the event that an appeal

will   be   necessary.”).   In   this   case,   the   parties   agreed   to   forego   a

contemporaneous record with the apparent intention of providing the court

reporter with the deposition transcript of the sections presented to the jury. Their

failure to see that the transcripts made it into the record leaves this court with a

complete yet insufficient record to review. See Michiana Easy Livin’ Country, Inc.

v. Holten, 168 S.W.3d 777, 783 (Tex. 2005) (“If . . . an evidentiary hearing took

place in open court, then a complaining party must present a record of that

hearing to establish harmful error.”).

       The missing Anderson testimony does not destroy the appellants’ ability to

appeal as METT suggests. However, with an insufficient record of the evidence

                                            9
presented at trial, we are not in a position to evaluate the appellants’ challenges

to the sufficiency of the evidence, and we must overrule those parts of the

appellants’ issues. See Travelers Indem. Co. of Rhode Island v. Starkey, 157

S.W.3d 899, 904–05 (Tex. App.—Dallas 2005, pet. denied) (overruling

appellant’s sufficiency challenges when an exhibit on which the trial court relied

was not included in the appellate record). We will review those arguments that

do not involve evidentiary evaluations.

II. Past lost profits

      In their first issue, the appellants argue that the trial court erred by

awarding METT damages for past lost profits. They argue that METT failed to

disclose its damages calculation. Prior to trial, Heat Shrink filed a motion in

limine seeking to prohibit METT from bringing before the jury “[a]ny calculation of

[its] alleged damages or attorneys’ fees, because the same has not been

disclosed to Defendants as required by Tex. R. Civ. P. 194.2(d).” See Tex. R.

Civ. P. 194.2(d) (“A party may request disclosure of . . . the amount and any

method of calculating economic damages.”). Heat Shrink attached to its motion

METT’s fourth supplemental response to its request for disclosures under rule

194.2(d). METT’s response stated,

              Plaintiff anticipates that its damages model will include
      amounts for lost profits in the past and in the future, as well as
      attorneys’ fees on some causes of action and exemplary damages
      on other causes of action. Plaintiff has lost approximately two-thirds
      of its business from its biggest customer, Creganna-Tactx, as well as
      significant work from other customers, and the value of the company
      is considerably less than it was before Defendants’ actions. Plaintiff

                                          10
      also seeks to recover damages for the expenses incurred by it in
      creating innovations to its expansion machines, which have been
      copied by Defendants or at the Defendants’ behest by non-
      parties . . . .

      At the hearing on the motion in limine, Heat Shrink again argued that

METT had not disclosed its damages calculation and pointed out that “the only

thing they’ve disclosed is cost approximating in excess of $150,000 for creating

[i]nnovations to its expansion machines.” The trial court asked METT, “To the

extent that 194.2(d) requests specifically the amount, even assuming that the

method of calculating economic damages, if that’s in there, I’ll say, or the

explanation of economic damages is kind of how it reads, other than that

$150,000 figure, where is the amount?” METT’s counsel responded, “I don’t

think there’s an amount in there other than the $150,000.”     METT’s counsel

noted that in Bauer’s deposition, he “talk[ed] about the gross sales being 5.5

million, but I—I don’t think that gets to the calculation of actual damages that

we’re seeking.” The trial court first granted the motion as to economic damages,

but then after a discussion on attorneys’ fees, stated that the portion of the

motion pertaining to economic damages was denied and that the parties must

approach the bench before “any testimony as to matters not set forth in the

request for disclosures or the supplemental responses to the request for

disclosure[s].”

      During trial, METT tried to elicit testimony from Bauer regarding how much

profit METT had lost from former customers, and Heat Shrink objected. The trial


                                      11
court held another hearing outside the presence of the jury regarding what

testimony on damages could be elicited. METT again pointed to the gross sales

amount of $5.5 million and to Bauer’s deposition in which he stated that his profit

margin was fifty percent. At the end of the hearing, the trial judge said,

             All right. I’m not sure how clear this will be, but my intention is
      to allow the Plaintiff to elicit responses limited solely to the response
      made under 194.2(d) of the fourth supplemental response to
      Defendant’s request for disclosure. Also, under 193.5, allowing
      supplementation by methods not solely by way of disclosure, only
      those statements made in the deposition.

             For example, there not being any calculation, any method at
      all regarding, I’ll say, net lost profits—maybe profits itself assumes
      net—that which was not provided, supplemented, or responded to,
      or the answer was no[t] in the deposition, and further not
      supplemented by way of the fourth amended request for disclosure
      will not be permitted.

Later during trial, Bauer testified that he had not made any calculation of lost

profits. When asked what damages METT sought against Heat Shrink and the

Wolfes, Bauer said, “It would be the diminished sales of Creganna-Tactx.”

      The amount of lost profits must be shown by competent evidence with

reasonable certainty. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84

(Tex. 1992). “What constitutes reasonably certain evidence of lost profits is a

fact intensive determination. At a minimum, opinions or estimates of lost profits

must be based on objective facts, figures, or data from which the amount of lost

profits can be ascertained.”    Id.   “The plaintiff bears the burden of providing

evidence supporting a single complete calculation of lost profits, which may often



                                         12
require certain credits and expenses.” ERI Consulting Eng’rs, Inc. v. Swinnea,

318 S.W.3d 867, 878 (Tex. 2010). Further,

             A party who fails to make, amend, or supplement a discovery
      response in a timely manner may not introduce in evidence the
      material or information that was not timely disclosed . . . , unless the
      court finds that: (1) there was good cause for the failure to timely
      make, amend, or supplement the discovery response; or (2) the
      failure to timely make, amend, or supplement the discovery
      response will not unfairly surprise or unfairly prejudice the other
      parties.

Tex. R. Civ. P. 193.6(a).

      METT did not provide the appellants with a “single complete calculation of

lost profits.” It only provided evidence of lost sales, which is not the same thing.

See Holt Atherton, 835 S.W.2d at 84 (“[L]ost income is not the correct measure

of damages.”); Kellmann v. Workstation Integrations, Inc., 332 S.W.3d 679, 685

(Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that evidence of gross

revenue or gross profits, rather than net revenue, did not establish lost profits).

During trial, it pointed to two separate sections of Bauer’s deposition and

suggested that Heat Shrink was responsible for putting the two answers together

and concluding that they formed METT’s damage model.               It was not the

appellants’ burden, but METT’s. See ERI Consulting, 318 S.W.3d at 878. METT

did not show why its failure to provide the calculation was not unfair surprise or

prejudice to the appellants. See Tex. R. Civ. P. 193.6(a); Miller v. Kennedy &

Minshew, Prof’l Corp., 142 S.W.3d 325, 348 (Tex. App.—Fort Worth 2003, pet.

denied) (“The burden of establishing good cause or lack of unfair prejudice or


                                        13
surprise is on the party seeking to call the witness, and the trial court’s finding of

good cause or lack of prejudice or surprise must be supported by the record.”).

Because METT did not provide a single complete calculation of lost profits as

Heat Shrink had requested, it was prohibited from introducing evidence on lost

profits.   See Tex. R. Civ. P. 193.6(a).      Because any evidence of lost profits

admitted was in error, 5 the award of lost profits predicated on such evidence was

likewise in error. We therefore sustain the appellants’ first issue.

III. Standing

       In their second issue, the appellants argue that METT lacked standing to

recover damages for the costs of the expansion machine because Medical

Extrusion Technologies, Inc. (the California company) paid for the machine. To

have standing, a plaintiff must be personally aggrieved, and his alleged injury

must be concrete and particularized, actual or imminent, and not hypothetical.

DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304–05 (Tex. 2008). Jury

question 6 asked what sum of money would fairly and reasonably compensate

METT for damages it suffered from Wolfe’s breach of his fiduciary duty to METT.

Subsection (c) asked for the amount of damages METT suffered for the “[o]riginal

cost to [METT] of the expansion machine(s) that [Heat Shrink] owns and that

were based on [METT’s] design, if any.” The appellants argue that METT was

       5
        METT argues that the appellants did not object to some of Bauer’s
testimony on lost profits. The testimony to which METT points regards METT’s
lost sales, which we have already noted is not a proper calculation of lost profits.
See Kellmann, 332 S.W.3d at 685.

                                         14
not personally aggrieved because it did not pay for the development or

manufacture of the machines.

      A party may be personally aggrieved if it has a legal or equitable interest in

the controversy. See Goswami v. Metro. Sav. & Loan Ass’n, 751 S.W.2d 487,

489 (Tex. 1988) (holding that plaintiff had standing to contest sale of property in

which he had an equitable interest); $574.37 U.S. Coin & Currency v. State, No.

02-06-00434-CV, 2008 WL 623793, at *6 (Tex. App.—Fort Worth Mar. 6, 2008,

no pet.) (mem. op.) (holding that although vehicle was owned by another person,

plaintiff had equitable interest in truck to confer standing to contest forfeiture);

First Nat. Bank of El Campo, TX v. Buss, 143 S.W.3d 915, 922 (Tex. App.—

Corpus Christi 2004, pet. denied) (noting that a person in possession of a vehicle

who is the intended owner of the vehicle has an equitable possessory right in the

vehicle even if that person is not named on the vehicle’s title). The appellants do

not challenge that the machines are in METT’s possession for its exclusive use

and thus have not challenged whether METT has an equitable interest in them

such that it would confer standing. Because METT has a legal or equitable

interest in the expander machines, it has standing to pursue its claim against the

appellants. We overrule the appellants’ second issue.

IV. Trade secrets

      In their third issue, the appellants argue that METT failed to prove that it

owned any trade secrets. As this issue concerns the sufficiency of the evidence



                                        15
and because we cannot evaluate all of the evidence introduced at trial, we must

overrule this issue. See Starkey, 157 S.W.3d at 904–05.

V. Knowing participation

      In their fourth issue, the appellants argue that the trial court erred by

finding that Heat Shrink was jointly and severally liable for damages from Wolfe’s

breach of fiduciary duty through its knowing participation in Wolfe’s breach. They

contend that chapter 33 of the civil practice and remedies code requires the

factfinder to determine the proportionate responsibility of all defendants for tort

claims. See Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001–.003 (West 2008).

      Knowing participation or aiding and abetting, while a distinct cause of

action, is not actionable unless a third party commits a tort.           See W. Fork

Advisors, LLC v. SunGard Consulting Servs., LLC, 487 S.W.3d 917, 921 (Tex.

App.—Dallas Aug. 5, 2014, no. pet. h.) (“[T]he supreme court has specifically

dealt with aiding and abetting—as it has dealt with conspiracy—as a ‘dependent’

claim, which is ‘premised on’ an underlying tort. Thus, when an underlying tort

fails, there can be [no] aiding and abetting claim related to that failed tort.”) (citing

Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 582–83 (Tex.

2001)). In this case, the pleadings alleged and the jury found that Heat Shrink’s

liability for knowing participation was wholly dependent upon and wholly derived

from Wolfe’s breach of his fiduciary duty to METT. See Kastner v. Jenkens &

Gilchrist, P.C., 231 S.W.3d 571, 580 (Tex. App.—Dallas 2007, no pet.) (“When a

third party knowingly participates in the breach of a fiduciary duty, the third party

                                           16
becomes a joint tortfeasor and is liable as such.”) (citing Kinzbach Tool Co. v.

Corbett–Wallace Corp., 138 Tex. 565, 574, 160 S.W.2d 509, 513–14 (Tex.

1942)). It is unnecessary to submit a question to the jury to apportion liability;

Heat Shrink’s liability is Wolfe’s liability. Cf. Rosell v. Ctr. W. Motor Stages, 89

S.W.3d 643, 656–57 (Tex. App.—Dallas 2002, pet. denied) (noting in the

negligent entrustment and negligent hiring context that “the owner/employer is

liable for the acts of the driver, and the degree of negligence of the

owner/employer is of no consequence”). We therefore cannot say that the trial

court erred by failing to apportion liability.

       The remainder of the appellants’ fourth issue challenges the sufficiency of

the evidence, and thus, we do not address it. See Starkey, 157 S.W.3d at 904–

05. We therefore overrule the appellants’ fourth issue.

VI. Permanent injunction

       In their fifth issue, the appellants argue that the trial court erred by granting

a permanent injunction. Specifically, they argue that METT had an adequate

remedy at law, that the permanent injunction is too vague, and that it is an

impermissible prior restraint on speech.

       To be entitled to a permanent injunction, the party seeking the injunction

must plead and prove (1) a wrongful act, (2) imminent harm, (3) irreparable

injury, and (4) absence of an adequate remedy at law. See Indian Beach Prop.

Owners Ass’n v. Linden, 222 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.]

2007, no pet.). A remedy is “adequate,” for purposes of determining entitlement

                                            17
to an injunction, when it is complete, practical, and efficient to the prompt

administration of justice. Matagorda Cnty. Hosp. Dist. v. City of Palacios, 47

S.W.3d 96, 103 (Tex. App.—Corpus Christi 2001, no pet.). An injunction must be

as definite, clear, and precise as possible and, when practicable, it should inform

the defendant of the acts he is restrained from doing without calling on him for

inferences or conclusions about which persons might well differ and without

leaving anything for further trial. Webb v. Glenbrook Owners Ass’n, Inc., 298

S.W.3d 374, 384 (Tex. App. —Dallas 2009, no pet.); see Tex. R. Civ. P. 683. An

injunction should be broad enough to prevent a repetition of the “evil” sought to

be corrected, but not so broad as to enjoin a defendant from lawful activities.

Webb, 298 S.W.3d at 384. A trial court abuses its discretion by granting an

injunction when it misapplies the law to established facts or when the evidence

does not reasonably support the determination or the existence of a probable

right of recovery or probable injury.        See Marketshare Telecom, L.L.C. v.

Ericsson, Inc., 198 S.W.3d 908, 916 (Tex. App. —Dallas 2006, no pet.).

      “As a general rule, in the absence of an enforceable agreement not to

compete, an employer is not entitled to an injunction preventing a former

employee from soliciting the employer’s clients.” Rugen v. Interactive Bus. Sys.,

Inc., 864 S.W.2d 548, 551 (Tex. App.—Dallas 1993, no writ); see also Gonzales

v. Zamora, 791 S.W.2d 258, 268 (Tex. App.—Corpus Christi 1990, no writ) (“An

employer is not entitled to an injunction preventing a former employee from

soliciting employer’s clientele as it existed on the day of employee’s termination

                                        18
of employment, where there is no agreement not to compete.”). However, a

former employee, even without a written contract, cannot use the former

employer’s confidential information or trade secrets for his own advantage to the

detriment of his former employer. Rugen, 864 S.W.2d at 551.

      The injunction in this case does not bar Wolfe and Heat Shrink from using

METT’s confidential information; it permanently enjoins Wolfe and Heat Shrink

from “soliciting FEP heat shrink tubing business from, or providing FEP heat

shrink tubing to” a list of METT’s customers. The injunction in this case therefore

enjoins a far broader range of activity than is proper or necessary to protect

METT’s interests and infringes on Wolfe’s and Heat Shrink’s right to compete.

See Miller Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 602 (Tex. App.—

Amarillo 1995, no writ) (noting as important when upholding injunction that it

allowed appellants to compete with former employer and only prohibited their use

of employer’s confidential information).

      But even assuming that the injunction was proper under the circumstances

of this case, the terms of the injunction are too vague to be enforceable. The

injunction prohibits sales to a list of names, but provides no other identifying

information. Some names appear to be companies, but others are names of

individual persons. For example, the injunction enjoins sales to “Julie McCreary”

and “Richard Wolf.” The list also includes “Farm” and “Calypso” with no further

clues to their identities. That cannot be said to be “as definite, clear, and precise

as possible.” See Computek Computer & Office Supplies, Inc. v. Walton, 156

                                           19
S.W.3d 217, 222–23 (Tex. App.—Dallas 2005, no pet.) (holding that injunction

lacked specificity when it did not list clients that Computek could not contact and

stating that the lack of specificity could not be cured “by any knowledge

Computek may have outside the permanent injunction”).             The injunction is

therefore impermissibly vague. We sustain the appellants’ fifth issue.

VII. Double recovery

      In their sixth issue, the appellants argue that the trial court’s final judgment

resulted in an improper double recovery for METT. A double recovery exists

when a plaintiff obtains more than one recovery for the same injury. See Stewart

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 7 (Tex. 1991).

      The trial court awarded METT $15,000 for misappropriation of its trade

secrets and $94,000 for the cost of the expansion machines for breach of

fiduciary duty. 6 The appellants argue that the same course of conduct forms the

basis for all of METT’s causes of action against them—that is, that Wolfe and

Heat Shrink used METT’s confidential and proprietary information to METT’s

financial detriment. However, the appellants do not explain how both causes of

action address the same financial injury. In its petition, METT identified its trade

secrets and confidential and proprietary information as including “computer

programs and raw material/labor planning requirements, customer lists, financial

information, pending projects and proposals, proprietary production processes,

      6
       The trial court also awarded $600,000 in lost profits for breach of fiduciary
duty, which we have already held to be in error.

                                         20
production log information, technological data, technological prototypes, internal

business payroll and employee contact information.” The award of $94,000 was

clearly for the injury resulting from using METT’s confidential or proprietary

information relating to the expander design. But the $15,000 award could have

been for any other financial loss that METT suffered from the loss of any other of

its trade secrets. We have stated that we cannot evaluate all of the evidence

introduced at trial to determine what, if any, trade secrets METT proved it owned.

We therefore overrule this issue. See Starkey, 157 S.W.3d at 904–05.

VIII. Motion to withdraw

      In their seventh issue, the appellants argue that the trial court erred by

granting the Wolfes’ attorney’s motion to withdraw and by denying a continuance.

      The Wolfes’ trial counsel filed a motion to withdraw on November 3, 2011.

The trial court heard the motion on December 1, 2011. At the same hearing, the

court heard METT’s motion for continuance.       METT argued that it had been

unable to take the defendants’ depositions. 7 Heat Shrink opposed the motion for

continuance on a number of grounds. It argued that it did not receive proper

notice, that it violated the trial court’s standing orders, that the motion did not

meet the requirements of rule 252, and that this was METT’s second request for

a continuance. See Tex. R. Civ. P. 21, 252. The trial court granted the Wolfes’

counsel’s motion to withdraw, stating that counsel could withdraw after he filed a


      7
       METT’s motion for continuance does not appear in the record before us.

                                        21
response to METT’s pending motion for summary judgment and represented the

Wolfes at their upcoming depositions. It denied METT’s motion for continuance.

      On appeal, the Wolfes argue that they joined in METT’s motion for

continuance. The record shows only that the Wolfes stated that they did not

oppose the motion and that they would suffer no harm or prejudice if it were

granted. 8   To preserve a complaint for appellate review, a party must have

presented to the trial court a timely request, objection, or motion that states the

specific grounds for the desired ruling, if they are not apparent from the context

of the request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R.

Evid. 103(a)(1).   If a party fails to do this, error is not preserved, and the

complaint is waived. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on

reh’g).

      Not opposing a motion is not the same thing as joining the motion and

requesting relief. The Wolfes did not request a continuance in the trial court and

thus waived the issue. See Bushell, 803 S.W.2d at 712; Addicks v. Sickel, No.

02-03-00218-CV, 2005 WL 737419, at *3 (Tex. App.—Fort Worth Mar. 31, 2005,

no pet.) (mem. op.) (holding that appellant waived complaint that trial was set by

failing to seek a continuance or otherwise affording the trial court an opportunity

to grant relief). We overrule their seventh issue.

      8
       Regarding the motion to withdraw, Heat Shrink’s attorney stated at the
hearing, “My understanding is that the Wolfes oppose the motion. They’re here
today back in the back row (indicating). We don’t represent the Wolfes, but we
do know that they oppose the motion because they sought counsel.”

                                        22
IX. Breach of fiduciary duty

      In their eighth issue, the appellants argue that METT failed to prove that

Wolfe violated a fiduciary duty to it. The appellants argue that at-will employees

owe no fiduciary duty to their employers as a matter of law and that Wolfe, as an

at-will employee, was free to make preparations to compete with METT while still

employed by it.

      The issue is not whether an at-will employee may plan to compete with his

employer while still employed with it, as that is clear. See Abetter Trucking Co. v.

Arizpe, 113 S.W.3d 503, 510 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“An

at-will employee may properly plan to compete with his employer, and may take

active steps to do so while still employed.”).     The issue is what constitutes

“proper” planning and whether improper planning by an employee violates a

fiduciary duty to his employer. See Johnson v. Brewer & Pritchard, P.C., 73

S.W.3d 193, 202 (Tex. 2002) (noting that there are “certain limitations on the

conduct of an employee who plans to compete with his employer”) (quoting

Augat, Inc. v. Aegis, Inc., 409 Mass. 165, 565 N.E.2d 415, 419 (1991)). The

agency relationship between employer and employee creates certain fiduciary

duties. See id. at 201; Miller Paper, 901 S.W.2d at 600 (“Upon the formation of

an employment relationship certain duties arise apart from any written contract.”).

Those duties include the employee’s obligation not to use confidential or

proprietary information acquired during the relationship in a manner adverse to

the employer, even after the employment relationship ends.           See Cuidado

                                        23
Casero Home Health of El Paso, Inc. v. Ayuda Home Health Care Servs., LLC,

404 S.W.3d 737, 753 (Tex. App.—El Paso 2013, no pet.) (“[A] breach of fiduciary

duty can be based on an employee’s use of an employer’s confidential or

proprietary information in a manner adverse to the employer.”); RenewData

Corp. v. Strickler, No. 03-05-00273-CV, 2006 WL 504998, at *12 (Tex. App.—

Austin Mar. 3, 2006, no pet.) (mem. op.) (discussing employee’s “post-

termination fiduciary duty” not to use employer’s confidential information); Miller

Paper, 901 S.W.2d at 600 (noting that employee’s duty not to use confidential

information against employer “survives termination of employment”). This duty is

imposed upon employees even when there is no contractual obligation. Fox v.

Tropical Warehouses, Inc., 121 S.W.3d 853, 858 (Tex. App.—Fort Worth 2003,

no pet.) (“Even in the absence of an enforceable nondisclosure agreement, a

former employee may not use confidential information or trade secrets the

employee learned in the course of his employment for his own advantage and to

the detriment of his employer.”).

      Thus, if Wolfe used METT’s confidential and proprietary information in his

preparations for starting Heat Shrink, he went beyond the bounds of proper

planning to compete and breached his fiduciary duty to METT. See Cuidado

Casero, 404 S.W.3d at 753 (reversing summary judgment in favor of employee

on employer’s breach-of-fiduciary-duty claim based on employee’s use of

confidential or proprietary information); RenewData, 2006 WL 504998, at *12

(upholding jury’s finding that former employee breached his post-termination

                                        24
fiduciary duty to former employer by disclosing former employer’s confidential

information); Miller Paper, 901 S.W.2d at 602 (noting that former employee was

free to compete with former employer “but not with the material developed by or

on behalf of” former employer). Whether Wolfe did violate his fiduciary duty to

METT was a fact issue for the jury to decide. Abetter Trucking Co., 113 S.W.3d

at 508 (“At a trial on the merits, whether a party has breached a fiduciary duty is

not decided as a matter of law; it is, instead, a fact issue for the jury’s

determination.”). Because we cannot evaluate the sufficiency of the evidence

supporting the jury’s finding that Wolfe breached his fiduciary duty, we overrule

the appellants’ eighth issue. See Starkey, 157 S.W.3d at 904–05.

IX. Conspiracy

      In their ninth issue, the appellants argue that the trial court erred by finding

that Deborah and Heat Shrink were jointly and severally liable through

conspiracy for damages from Wolfe’s breach of fiduciary duty.

      The essential elements of a civil conspiracy are “(1) two or more persons;

(2) an object to be accomplished; (3) a meeting of the minds on the object or

course of action; (4) one or more unlawful, overt acts; and (5) damages as the

proximate result.” Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 701

(Tex. App.—Fort Worth 2006, pet. denied). Question No. 14 of the jury charge

asked,

      Was KEVIN WOLFE part of a conspiracy that damaged [METT]?



                                         25
            To be part of a conspiracy, KEVIN WOLFE and another
      person or persons or entity must have had knowledge of, agreed to,
      and intended a common objective or course of action that resulted in
      the damages to [METT]. One or more persons involved in the
      conspiracy must have performed some act or acts to further the
      conspiracy.

Question Nos. 15 and 16 asked the same question about Deborah and Heat

Shrink.   There was no separate question on damages resulting from the

conspiracy.

      In one of their arguments under this issue, the appellants claim that METT

failed to establish a finding that it suffered damages as a result of the conspiracy.

That is, damages “are not presumed from the existence of a conspiracy.” Hart v.

Moore, 952 S.W.2d 90, 98 (Tex. App.—Amarillo 1997, pet. denied); see Belz v.

Belz, 667 S.W.2d 240, 243 (Tex. App.—Dallas 1984, writ ref’d n.r.e.) (“[T]he

mere fact that the existence of a conspiracy is proved is not, in and of itself, a

recoverable harm.”).    The damages proximately resulting from the conspiracy

must be proven like any other element. See ERI Consulting, 318 S.W.3d at 881

(upholding take-nothing judgment on claim of conspiracy when the damages

awarded could not be the proximate result of a conspiracy).

      In this case, the appellants were found to be jointly and severally liable for

the damages resulting from Wolfe’s breach of fiduciary duty. However, “it does

not automatically follow that whatever damages were caused by the [underlying

tort] were also attributable to the ‘conspiracy’ the jury found.” THPD, Inc. v.

Continental Imports, Inc., 260 S.W.3d 593, 605 (Tex. App.—Austin 2008, no


                                         26
pet.). Without a finding on the amount of damages caused by the conspiracy,

METT failed to prove an essential element of its cause of action. See Belz, 667

S.W.2d at 243 (“[I]n order to recover a judgment for civil conspiracy there must

be a finding of damages resulting from that conspiracy.”).     Joint and several

liability for Wolfe’s breach of fiduciary duty cannot be predicated on the

conspiracy cause of action.

      However, as discussed above, the jury found in a separate question that

Heat Shrink knowingly participated in Wolfe’s breach of his fiduciary duty to

METT. Knowing participation is a separate ground supporting the imposition of

joint and several liability on Heat Shrink for the damages resulting from Wolfe’s

breach.       See Kastner, 231 S.W.3d at 580 (“When a third party knowingly

participates in the breach of a fiduciary duty, the third party becomes a joint

tortfeasor and is liable as such.”). So although we sustain the appellants’ ninth

issue, it does not affect our reasoning under the appellants’ fourth issue as to

Heat Shrink.

                                   Conclusion

      Having sustained the appellants’ first issue, we reverse the award of

$600,000 in lost profit damages and modify the trial court’s award of $694,000 to

$94,000. Having sustained the appellants’ fifth issue, we dissolve the permanent

injunction and modify the trial court’s final judgment to omit the permanent

injunction.    Having sustained the appellants’ ninth issue, we modify the trial

court’s judgment to omit Deborah Wolfe as liable for the $94,000 damage award.

                                        27
Having overruled the appellants’ second, third, fourth, sixth, seventh, and eighth

issues, we affirm the trial court’s judgment as modified.


                                                    /s/ Lee Gabriel

                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

MEIER, J., filed a concurring and dissenting opinion.

DELIVERED: October 16, 2014




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