                                                                                                           ACCEPTED
                                                                                                       03-16-00611-CV
                                                                                                             12717534
                                                                                            THIRD COURT OF APPEALS
                                                                                                       AUSTIN, TEXAS
                                                                                                 9/15/2016 11:12:01 AM
                                                                                                     JEFFREY D. KYLE
                                                                                                                CLERK
                                                   03-16-00611-CV

BRUCE CRAIG, TYLER CRAIG, §                                    IN THE COURT OF  APPEALS
                                                                             FILED IN
                                                                               3rd COURT OF APPEALS
AND TEJAS VENDING, LP,    §                                                         AUSTIN, TEXAS
   Appellants             §                                                    9/15/2016 11:12:01 AM
                          §                                         FOR THE   THIRD     JUDICIAL
                                                                                   JEFFREY  D. KYLE
v.                        §                                                             Clerk
                          §
TEJAS PROMOTIONS, LLC,    §                                             DISTRICT OF TEXAS
   Appellee               §

       APPELLANTS’ SUPPLEMENT TO APPELLANTS’ EMERGENCY
            MOTION TO STAY TRIAL COURT PROCEEDINGS

          COME NOW Appellants Bruce Craig, Tyler Craig, and Tejas Vending, LP,

and file this Supplement to their Emergency Motion to Stay Trial Court

Proceedings that are to be held on Friday, September 16, 2016, during the

pendency of this interlocutory appeal, and would request that the Court enforce the

statutory stay in Civil Practice and Remedies Code Section 51.014(b) for

interlocutory appeals allowed under Civil Practice and Remedies Code Section

51.014(a)(12).

                                       I.
        Appellants Objected To Hearing; Trial Court Plans To Go Forward

          1.        Appellants filed their Objection to Court’s Consideration of Plaintiff’s

Motion for Leave to Supplement Record on September 15, 2016. See Exhibit A.

Appellants’ counsel notified the court’s staff attorney of the filing of the Objection.




Appellants’ Emergency Motion to Stay Proceedings
                                                         1
          2.        The court’s staff attorney then notified counsel that the court “is going

forward with the hearing tomorrow at 11:00 absent a ruling from the Third Court

of Appeals saying that she should not do so.” See Exhibit B.

                                                    IV.
                                                   Prayer

           WHEREFORE, PREMISES CONSIDERED, this Court should advance

consideration of the emergency motion, order a stay of the trial court hearing

currently scheduled for Friday, September 16, 2016, and enter any further

appropriate orders to enforce the statutory stay in Civil Practice and Remedies

Code Section 51.014(b) for interlocutory appeals allowed under Civil Practice and

Remedies Code Section 51.014(a)(12).




Appellants’ Emergency Motion to Stay Proceedings
                                                     2
                                                        Respectfully submitted,

                                                        The Weichert Law Firm
                                                        3821 Juniper Trace, Suite 106
                                                        Austin, Texas 78738
                                                        (512) 263-2666
                                                        (512) 263-2698 - Facsimile


                                                   By:__________/s/ Darryl W. Pruett
                                                             Darryl W. Pruett
                                                             Texas State Bar No. 00784795
                                                             darryl@weichertlaw.com
                                                             George V. Basham, III
                                                             Texas State Bar No. 01868000
                                                             george@weichertlaw.com
                                                             Glenn K. Weichert
                                                             State Bar No. 21076500
                                                             glenn@weichertlaw.com

                                                        ATTORNEYS FOR APPELLANTS




Appellants’ Emergency Motion to Stay Proceedings
                                                           3
                                        CERTIFICATE OF SERVICE

      This is to certify that a true and correct copy of this motion has been sent in
accordance with the Texas Rules of Civil Procedure, as noted below, on this 13th
day of September, 2016, to:

          Matthew R. Beatty
          Beatty Bangle Strama PC
          400 West 15th Street, Suite 1450
          Austin, Texas 78701
          Telephone: (512) 879-5050
          Telecopier: (512) 879-5040

  Hand Delivery in Person or by Agent
x Electronic Service
  Email Service
  Courier Receipted Delivery
  Telephonic Document Transfer
  Certified Mail, Return Receipt Requested No.______________



                                                               /s/ Darryl W. Pruett
                                                         Darryl W. Pruett




Appellants’ Emergency Motion to Stay Proceedings
                                                   4
                                                                                 9/15/2016 9:50:26 AM
                                                                                                     Velva L. Price
                                                                                                    District Clerk
                                      Cause No. D-1-GN-16-001959                                    Travis County
                                                                                                 D-1-GN-16-001959
 TEJAS PROMOTIONS, LLC,                            §                        IN   THE 261st JUDICIAL
                                                                                                 Jonathan Sanders
      Plaintiff,                                   §
                                                   §
 v.                                                §                         DISTRICT COURT OF
                                                   §
 BRUCE CRAIG, TYLER CRAIG, AND                     §
 TEJAS VENDING, LP                                 §
      Defendants.                                  §                    TRAVIS COUNTY, TEXAS


 OBJECTION TO COURT’S CONSIDERATION OF PLAINTIFF’S MOTION FOR LEAVE
        TO SUPPLEMENT RECORD AND MODIFY ORDER OF DISMISSAL

       COME NOW Bruce Craig (“B Craig”), Tyler Craig (“T Craig”), and Tejas Vending, LP

(“Tejas Vending”), Defendants in the above-referenced cause, and files this their Objection to Court’s

Consideration of Plaintiff’s Motion for Leave to Supplement Record (the “Motion to Supplement and

Modify”), and would show the following:

                                                   I.

       1.      Plaintiff sued Defendants on May 6, 2016.        The causes of action were breach of

contract, misappropriation of trade secrets, and conspiracy to misappropriate trade secrets. Plaintiff

also requested certain declaratory and injunctive relief. The conspiracy to misappropriate trade secrets

centered on Bruce Craig’s alleged violation of a nondisclosure agreement (the “NDA”) by providing a

list of Plaintiff’s purported customers (which it claimed was a “trade secret”) to the other Defendants.

Plaintiff alleged that Bruce Craig, “[i]n direct violation of the NDA, . . .disclosed the information

regarding Tejas Promotions assets and business structure to his son, and defendant in this action, Tyler

Craig.” Plaintiff alleged that Bruce Craig “further disclosed that information to an entity he created

with a deceptively similar name, Tejas Vending LP.”

       2.      Plaintiff further alleged that Defendants, based on the disclosure, then “pursued a course

of action designed to use Tejas Promotions’ Confidential Information to steal Tejas Promotions

business.”

Defendants’ Objection To Consideration of Motion                                                   Page 1
        3.      Plaintiff alleged that the “Confidential Information” at issue pursuant to the NDA was a

trade secret.

        4.      Plaintiff also sued for conspiracy, alleging that “Defendants to this action conspired to

misappropriate Plaintiff’s trade secrets. . .”

        5.      The action that is the basis of the conspiracy claim is Bruce Craig’s purported

disclosure (or “communication”) of Plaintiff’s alleged trade secrets to Tyler Craig and Tejas Vending,

LP.

        6.      Plaintiff’s claim of conspiracy was a textbook example of something that is based on,

related to, or is in response to the Defendants’ exercise of the right of association. The “exercise of the

right of association” means “a communication between individuals who join together to collectively

express, promote, pursue, or defend common interests.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(2).

That is exactly what Plaintiff contended Defendants were doing. A “communication” includes “the

making or submitting of a statement or document in any form or medium, including oral, visual,

written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(1). This would, of

course, include the customer list that Plaintiff alleged was communicated by Bruce Craig to Tyler

Craig and Tejas Vending, LP.

        7.      Plaintiff sued all of the Defendants for conspiracy based on, relating to, or in response

to, Bruce Craig’s communication of the alleged trade secrets to Tyler Craig and Tejas Vending, LP.

8.      The conspiracy to misappropriate trade secrets claim was frivolous. Claims of conspiracy to

misappropriate trade secrets are pre-empted by the Texas Uniform Trade Secrets Act.

9.      On June 29, 2016, Defendants filed a Motion to Dismiss pursuant to Chapter 27, Civil Practice

& Remedies Code.

        10.     In response, and presumably recognizing the frivolous nature of the conspiracy claim,

Plaintiff abandoned the frivolous, pre-empted conspiracy claim and some of the declaratory relief


Defendants’ Objection To Consideration of Motion                                                    Page 2
claims and substituted other declaratory relief claims. A hearing on the Motion to Dismiss was held on

August 4, 2016. No evidence was presented either by affidavit or live testimony regarding Plaintiff’s

attorney’s fees.

       11.     The Honorable Rhonda Hurley transmitted her letter ruling dated August 24, 2016,

stating her ruling denying the Motion to Dismiss and Defendants’ Plea to the Jurisdiction. She did not

award Plaintiff any attorney’s fees nor did she reserve the issue for any further consideration.

       12.     Because Plaintiff’s counsel had not prepared and circulated any proposed order by

September 1, 2016, Defendants’ counsel proposed a simple form of order that corresponded with Judge

Hurley’s letter ruling.

       13.     Plaintiff’s counsel disagreed with the form of order, and proposed one awarding

Plaintiff attorney fees even though no evidence of Plaintiff’s attorney fees had been presented at the

hearing on the Motion to Dismiss and even though Judge Hurley’s letter ruling did not mention

attorney’s fees.

       14.     Judge Hurley signed the Order denying the Motion to Dismiss on September 1, 2016.

Judge Hurley’s staff attorney stated to both counsel that Judge Hurley was “willing to entertain

attorney’s fees, but would need evidence,” thereby acknowledging that there had been no evidence

presented at the hearing on the Motion to Dismiss to support any attorney’s fees for Plaintiff.

       15.     Defendants filed their notice of appeal with the trial court clerk the same day. On that

same day, Defendants also requested that the trial court issue findings of fact and conclusions of law.

       16.     The thirty-day deadline for the trial court to rule on the Motion to Dismiss expired on

September 3, 2016.

       17.     On September 6, 2016, Judge Hurley’s staff attorney solicited legal authority from

counsel on the question of whether the trial court could conduct a hearing on attorney’s fees given that

the appeal had already been filed.


Defendants’ Objection To Consideration of Motion                                                   Page 3
       18.     On that same day, Defendants’ counsel provided the court with caselaw and

Defendants’ legal argument based on the statutory stay of “all proceedings” in an interlocutory appeal

of an order denying a Chapter 27 Motion to Dismiss. Plaintiff’s counsel responded on September 7,

2016, asserting that Defendants’ counsel’s “procedural maneuvering” (presumably the mere act of

filing the appeal) did not prevent the trial court from modifying the order being appealed, citing to

Rule of Appellate Procedure 27.3, without ever addressing the statutory stay and the general rule that a

statute would override any conflicting Rule of Appellate Procedure.

       19.       On September 9, 2016, Plaintiff filed a “Motion for Leave to Supplement Record and

Modify Order of Dismissal [sic]” (the “Motion to Supplement and Modify”).              In its Motion to

Supplement and Modify, Plaintiff requested an additional, evidentiary, hearing and that the trial court

modify the order that is currently being appealed “and award attorneys’ fees to Plaintiff consistent with

the evidence presented at the hearing.”

       20.     The trial court’s staff attorney emailed counsel on the morning of September 13, 2016,

informing the parties that Judge Hurley intended to conduct a hearing on the Motion to Supplement

and Modify on September 16, 2016, at 11:00 a.m.

       21.     Interlocutory appeals of orders denying a motion to dismiss brought under Chapter 27,

Civil Practice and Remedies Code are specifically allowed pursuant to Civil Practice and Remedies

Code Section 51.014(a)(12)(“(a) A person may appeal from an interlocutory order of a district court,

county court at law, statutory probate court, or county court that: . . .(12) denies a motion to dismiss

filed under Section 27.003;. . .”). Pursuant to Civil Practice and Remedies Code Section 51.014(b), an

appeal pursuant to Section 51.014(a)(12) “stays the commencement of a trial in the trial court pending

resolution of the appeal. . .[AND] also stays all other proceedings in the trial court pending resolution

of that appeal.” Civil Practice and Remedies Code Sec. 51.014(b).




Defendants’ Objection To Consideration of Motion                                                  Page 4
       22.     Civil Practice and Remedies Code Sec. 51.014(b) is clear—an interlocutory appeal of

an order denying a Chapter 27 Motion to Dismiss stays not only the commencement of trial but “also

stays all other proceedings in the trial court pending resolution of that appeal.”

       23.     Defendants object to the trial court conducting any hearing on the Motion to

Supplement and Modify.

                                                     V.
                                                   PRAYER

       WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court observe the

statutory stay and stay all proceedings during the pendency of the interlocutory appeal. Defendants

pray that the Court not consider or conduct any hearing on the Motion to Supplement and Modify.

Defendants pray for such other and further relief to which Defendants may be justly entitled.

                                               Respectfully submitted,

                                               The Weichert Law Firm
                                               3821 Juniper Trace, Suite 106
                                               Austin, Texas 78738
                                               (512) 263-2666
                                               (512) 263-2698 - Facsimile


                                       By:            /s/ Darryl W. Pruett
                                                      Darryl W. Pruett
                                                      Texas State Bar No. 00784795
                                                      darryl@weichertlaw.com

                                                      George V. Basham, III
                                                      Texas State Bar No. 01868000
                                                      george@weichertlaw.com

                                                      Glenn K. Weichert
                                                      State Bar No. 21076500
                                                      glenn@weichertlaw.com

                                               ATTORNEYS FOR DEFENDANTS




Defendants’ Objection To Consideration of Motion                                                Page 5
                                     CERTIFICATE OF SERVICE

       This is to certify that a true and correct copy of the foregoing has been sent in accordance with
the Texas Rules of Civil Procedure, as noted below, on this 15th day of September, 2016, to:

       Matthew R. Beatty
       Beatty Bangle Strama PC
       400 West 15th Street, Suite 1450
       Austin, Texas 78701
       Telephone: (512) 879-5050
       Telecopier: (512) 879-5040

        Hand Delivery in Person or by Agent  Courier Receipted Delivery  Telephonic
       Document Transfer  Electronic Filing and Service  Certified Mail, Return Receipt
       Requested No.



                                                     /s/ Darryl W. Pruett
                                                     Darryl W. Pruett




Defendants’ Objection To Consideration of Motion                                                   Page 6
The Weichert Law Firm Mail - RE: {EXTERNAL} Tejas Promotions v. C...                              https://mail.google.com/mail/u/0/?ui=2&ik=217d40dcc2&view=pt&searc...




                                                                                                                                            Darryl Pruett <darryl@weichertlaw.com>



         RE: {EXTERNAL} Tejas Promotions v. Craig et al.; Cause No. D-1-GN-16-001959
         1 message

         Michelle Roche <Michelle.Roche@traviscountytx.gov>                                                                                            Thu, Sep 15, 2016 at 10:34 AM
         To: Darryl Pruett <darryl@weichertlaw.com>
         Cc: "Matthew R. Beatty" <mbeatty@bbsfirm.com>


          Mr. BeaƩy and Mr. PrueƩ,

          Judge Hurley asked me to let you know that she is going forward with the hearing tomorrow at 11:00 absent a ruling from the Third Court of Appeals saying that
          she should not do so. She also asked me to let you know that Mr. BeaƩy can present his aƩorney’s fees evidence by way of aﬃdavit and Mr. PrueƩ will be given an
          opportunity to cross examine.



          Thank you.




          Michelle Roche

          Staﬀ AƩorney for the Honorable Rhonda Hurley

          98th District Court



          Heman Marion SweaƩ

          Travis County Courthouse

          1000 Guadalupe St., Room 327

          AusƟn, Texas 78701

          Phone: (512) 854-7839

          Facsimile: (512) 854- 9338




          From: Darryl Pruett [mailto:darryl@weichertlaw.com]
          Sent: Thursday, September 15, 2016 10:07 AM
          To: Michelle Roche
          Cc: Matthew R. Beatty
          Subject: {EXTERNAL} Tejas Promotions v. Craig et al.; Cause No. D-1-GN-16-001959



          Ms. Roche:

          We have sent for electronic filing this morning the attached objection to the trial court considering the Motion to Supplement and Modify.

          Darryl W. Pruett

          The Weichert Law Firm

          3821 Juniper Trace, Suite 106

          Austin, Texas 78738
          (512) 263-2666

          (512) 263-2698 - Facsimile




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