
	OSCN Found Document:PROLINE PRODUCTS, L.L.C. v. McBRIDE

	
				

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PROLINE PRODUCTS, L.L.C. v. McBRIDE2014 OK CIV APP 34324 P.3d 430Case Number: 111590Decided: 03/17/2014Mandate Issued: 04/10/2014DIVISION IIITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION IIICite as: 2014 OK CIV APP 34, 324 P.3d 430
PROLINE PRODUCTS, L.L.C., Plaintiff/Appellee,v.TIM 
McBRIDE AND CAMERON McBRIDE, Defendants/Appellants.

APPEAL FROM THE DISTRICT COURT OFLOGAN COUNTY, OKLAHOMA
HONORABLE LOUIS A. DUEL, TRIAL JUDGE

AFFIRMED

Ryan S. Wilson, Derek B. Ensminger, HARTZOG, CONGER, CASON & NEVILLE, 
Oklahoma City, Oklahoma, for Plaintiffs/Appellee,Phillip L. Free, Blake 
Lawrence, HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C., Oklahoma 
City, Oklahoma, for Defendants/Appellants.


BRIAN JACK GOREE, Judge:
¶1 Defendant/Appellants, Tim McBride and Cameron McBride, seek review of the 
trial court's order granting the motion of Plaintiff/Appellee, ProLine Products, 
L.L.C. (ProLine), for a temporary injunction preventing them from using any 
portion of the ProLine formulas to create an asphalt cold-patch additive. We 
hold the trial court's fact findings are not clearly against the weight of the 
evidence, and it did not abuse its discretion in determining there is a 
likelihood of success on the merits of ProLine's claim for misappropriation of a 
trade secret.
¶2 Tim and Cameron are the son and grandson, respectively, of ProLine's owner 
and president, Don McBride. ProLine sued Tim and Cameron, alleging they had 
misappropriated ProLine's formulas in violation of Oklahoma's Uniform Trade 
Secrets Act (Act), 78 O.S. 2011 §§85-94, causing damage and irreparable harm to 
ProLine. ProLine sought to recover damages and to enjoin Tim and Cameron from 
using the ProLine formulas for any purpose. It moved for a temporary injunction, 
asserting that Tim and Cameron's continued misappropriation of the formulas was 
causing irreparable harm.
¶3 After an evidentiary hearing, the trial court granted the motion, finding 
that (1) ProLine owned two confidential formulas used to make asphalt products 
called ProLine Cold Patch and ProLine Bunker Material, (2) the formulas derived 
independent economic value from not being generally known or readily 
ascertainable, (3) the formulas are subject to reasonable efforts to maintain 
their secrecy, (4) the formulas are trade secrets, and (5) Defendants were privy 
to the formulas when they were employees of an affiliated company. The trial 
court ruled that (1) ProLine was likely to succeed on the merits, (2) 
irreparable harm to ProLine would result if the Defendants were not enjoined 
from misappropriating the formulas, (3) the effect of injunction on the 
Defendants is slight but failure to grant an injunction would have a substantial 
effect on ProLine, and (4) public policy weighs in favor of granting injunctive 
relief. The trial court enjoined Tim and Cameron from using the formulas in any 
manner and from disclosing them to third parties. It stated:


This injunction is intended to encompass any attempt by Defendants to use 
    any portion of the ProLine Formulas, even with independent improvements or 
    modifications, to sell or create a cold patch additive for use in the 
    asphalt industry or bunker material if any such additive or the process used 
    to create it is substantially derived from the ProLine 
  Formulas.
Tim and Cameron appeal from this order pursuant to 12 O.S. 2011 §952(b)(2), contesting 
the sufficiency of the evidence.
¶4 In reviewing a trial court's order granting or denying injunctive relief, 
we will examine and weigh the evidence, but we will not disturb the trial 
court's judgment unless the trial court has abused its discretion or the 
decision is clearly against the weight of the evidence. Sharp v. 251st Street 
Landfill, Inc., 1996 OK 109, 
¶4, 925 P.2d 546, 549. The grounds 
for issuing a temporary injunction in Oklahoma are: (1) the likelihood of 
success on the merits, (2) irreparable harm to the party seeking injunctive 
relief if relief is denied, (3) relative effect on the other interested parties, 
and (4) public policy concerns arising out of the issuance of injunctive relief. 
Daffin v. State ex rel. Oklahoma Dep't of Mines, 2011 OK 22, ¶7, 251 P.3d 741, 745. In contesting 
the sufficiency of the evidence, Tim and Cameron appear to be challenging the 
trial court's determination of the first factor, likelihood of success on the 
merits.
¶5 Tim and Cameron first argue that ProLine failed to prove the existence of 
a trade secret. Pursuant to the Uniform Trade Secrets Act, 78 O.S. 2011 §86(4), a trade secret 
means:


[I]nformation, including a formula, pattern, compilation, program, 
    device, method, technique or process, that:a. derives independent 
    economic value, actual or potential, from not being generally known to, and 
    not being readily ascertainable by proper means by, other persons who can 
    obtain economic value from its disclosure or use, andb. is the subject 
    of efforts that are reasonable under the circumstances to maintain its 
    secrecy.
¶6 Don McBride testified that he and a chemist spent four years working on a 
formula for cold-patch formula, sending materials to each other and testing 
them. He said they found a special ingredient (Ingredient) that made the 
cold-patch asphalt workable in all seasons. Don said that Ingredient was the 
reason that his cold-patch product was better than and preferred over his 
competitors' products.
¶7 Don testified that if the ProLine formula became "unsecret," it would 
"kill the asset value of it." He said that Tim did the blending of the 
components pursuant to the recipe provided and therefore knew the formula. Don 
said he had many discussions with Tim regarding the secret nature of the formula 
and Tim assured him the secret was safe. After a falling-out and reconciliation 
in 2011, Don had Tim and other family members and employees sign non-disclosure 
agreements to protect the formula.
¶8 Don's testimony is clear and convincing evidence establishing prima facie 
that the ProLine formula is a trade secret. The evidence that Tim and Cameron 
offered to controvert the existence of a trade secret was published material of 
a third party which discussed asphalt additives in the context of hot-mix 
applications. This evidence does not negate ProLine's trade secret claim because 
it does not demonstrate that use of Ingredient in cold-patch applications is 
generally known. Furthermore, Tim agreed that ProLine was better than competing 
products because of its unique formulation containing Ingredient. Based on this 
record, the trial court's finding the formula is a trade secret is not clearly 
against the weight of the evidence.
¶9 Tim and Cameron's second contention is that ProLine failed to prove they 
had misappropriated any trade secret. Under the Act, 78 O.S. 2011 §86(2)(b)(2)(b), 
misappropriation includes "use of a trade secret of another without express or 
implied consent by a person who ... at the time of disclosure or use, knew or 
had reason to know that his knowledge of the trade secret was ... acquired under 
circumstances giving rise to a duty to maintain its secrecy or limit its 
use...." A trade secret is "used" if a product or process is substantially 
derived from the trade secret, even if it is with independent improvements or 
modifications. MTG Guarnieri Mfg., Inc. v. Clouatre, 2010 OK CIV APP 71, ¶17, 239 P.3d 202, 211. Tim asserts he 
did not use ProLine's trade secret and that his cold-patch product uses 
different ingredients from ProLine's product.
¶10 Don testified that during their 2011 falling out, Tim told him, "I'll 
manufacture ProLine because I own it as much as you do." He said he then learned 
that Tim had set up accounts to order the same materials used to manufacture 
ProLine Cold-Patch. Don said he also learned that Tim was having discussions 
with a ProLine distributor in Texas to cut him out and sell them the ProLine 
additive that he was manufacturing. He testified he then sent a cease-and-desist 
letter. After he and Tim reconciled, Don purchased from Tim the materials that 
Tim had ordered and used them to manufacture ProLine.
¶11 Don testified that in 2012, Tim and Cameron left the family company 
again. At the same time, the Texas distributor stopped ordering supplies from 
ProLine. Tim testified that he and Cameron spent four to five months on research 
and development of a new cold-patch product. He said he did not use the ProLine 
formula. However, Tim acknowledged that he looked for an ingredient with the 
same characteristics as Ingredient. He also acknowledged that the Texas 
distributor bought his product and was paying his attorney fees in the present 
case.
¶12 This record provides clear and convincing evidence that Tim developed his 
formulation based on his knowledge of the characteristics of Ingredient and 
therefore his product was substantially derived from ProLine's trade secret. The 
trial court's finding is not clearly against the weight of the evidence.
¶13 For the foregoing reasons, we hold the trial court did not abuse its 
discretion in determining there is a likelihood of success on the merits on 
ProLine's claim for misappropriation of a trade secret. Its order granting a 
temporary injunction is AFFIRMED.

BELL, P.J., and MITCHELL, J., concur.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Court of Civil Appeals Cases CiteNameLevel 2010 OK CIV APP 71, 239 P.3d 202, MTG GUARNIERI MANUFACTURING, INC. v. CLOUATREDiscussedOklahoma Supreme Court Cases CiteNameLevel 1996 OK 109, 925 P.2d 546, 67 OBJ        2930, Sharp v. 251st Street Landfill, Inc.Discussed 2011 OK 22, 251 P.3d 741, DAFFIN v. STATE ex rel. OKLAHOMA DEPT. OF MINESDiscussedTitle 12. Civil Procedure CiteNameLevel 12 O.S. 952, Jurisdiction of Supreme CourtCitedTitle 78. Trade Marks and Labels CiteNameLevel 78 O.S. 86, DefinitionsDiscussed










