                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                              NO. 2-07-244-CV


KIMBERLY NORWOOD A/K/A                                             APPELLANTS
KIMBERLY ELLIOTT AND
EXECUTIVE CATERING, INC.

                                       V.

TRACY NORWOOD AND                                                    APPELLEES
NOR DUBOIS, INC.

                                   ------------

          FROM THE 393RD DISTRICT COURT OF DENTON COUNTY

                                   ------------

                        MEMORANDUM OPINION 1

                                   ------------

     This appeal involves a divorce that included litigation between not only

the husband and wife but also a closely-held corporation owned solely by the

husband and wife and a competing corporation for which the wife went to work

after the divorce proceedings began.        In a single issue consisting of three




     1
         … See Tex. R. App. P. 47.4.
distinct complaints or subissues, appellant Kimberly Norwood a/k/a Kimberly

Elliott2 challenges the trial court’s granting of appellees Tracy Norwood and Nor

Dubois, Inc.’s motion for sanctions and the entry of a directed verdict in Nor

Dubois’s favor on its claims for breach of fiduciary duty, conspiracy to breach

fiduciary duty, and tortious interference with contracts. We affirm.

                      Factual and Procedural Background

      Before marrying, Tracy and Kimberly formed Nor Dubois in March 2001

as a closely-held corporation for the purpose of operating a catering business

for corporate aircraft. Tracy owned sixty percent of the shares of Nor Dubois

and Kimberly owned forty percent.          Each was an officer, director, and

employee. The couple married in February 2002.

      Tracy filed for divorce in June 2004. Although the couple continued to

operate Nor Dubois’s business, they began negotiating with third parties to sell

the business during the summer and fall of 2004; Kimberly was involved in the

negotiation process and remained as an employee throughout 2004. She filed

a counterpetition for divorce in September 2004. The trial court entered an




      2
       … Although the notice of appeal was filed on behalf of both Kimberly and
Executive Catering, Inc. and both were listed as parties on the docket sheet,
Executive Catering is not listed as a party in the only appellant’s brief, which
does not request any relief on behalf of Executive Catering. We also note that
appellees elected not to file a brief.

                                       2
Agreed Mutual Injunction later that month, which included a provision

prohibiting the parties from “harming or reducing the value of the property of

one or both of the parties.”

      According to Tracy, on January 14, 2005, he was in a hangar near the

offices of Catering Art, a Nor Dubois competitor with whom Kimberly had

previously talked “about some sort of a business arrangement.” He saw Nor

Dubois “vehicles pull up in front . . . and start unloading everything from

products, lobster tail, packaging, coffee makers, . . . [and] everything that’s in

a catering kitchen from A to Z.” When he went inside the building, he saw a

room full of similar items, and one of the drivers told him “they had been doing

this for three days.” He called the police and had the activity stopped.

      On January 19, 2005, Kimberly resigned as a Nor Dubois director and

employee. In her resignation letter, she said that Tracy asked her not to come

back to work on January 14 and refused her admittance to Nor Dubois’s

offices.   Kimberly went to work for Executive Catering,3 a business she

incorporated with Tony Caterine, who also owned Catering Art.

      On January 31, 2005, Tracy moved to enforce the parties’ agreed

injunction by contempt based on the January 14 incident. Tracy alleged that


      3
       … The evidence at trial showed that Executive Catering had been
incorporated on January 12, 2005, with Kimberly listed as a director.

                                        3
Kimberly had interfered with the contractual and business relations between Nor

Dubois and its employees and customers. He further alleged that she had made

harassing phone calls to his cell phone and changed the passwords on his

private email accounts without authorization,       making    those   accounts

temporarily unavailable to him. Kimberly responded with her own motion for

enforcement by contempt, alleging that Tracy had withdrawn $2,500 from an

account of Aircraft Outfitters, a business owned solely by Kimberly, and had

removed kitchen equipment and other assets belonging to Nor Dubois. The

record does not show whether the trial court ruled on these motions.

      On March 18, 2005, Kimberly brought a motion to compel discovery and

for sanctions, asking the court to order Tracy to respond to requests for

production and disclosure that she had served on him in November 2004.

Tracy then filed his own motion to compel and for sanctions on March 21,

2005, asking the trial court to order Kimberly to respond to requests for

production and disclosure that he had likewise propounded in November 2004.

The record does not show whether the trial court ruled on these initial

discovery-related motions.

      In February 2006, Tracy’s lawyer filed a subpoena to compel production

of numerous documents related to Executive Catering. Tracy then filed another

motion for sanctions, complaining of Kimberly’s failure to produce documents

                                      4
in response to a second set of requests for production and her failure to appear

for a deposition. He also filed a motion to compel production of documents

from Executive Catering, which had responded to the subpoena with objections

and responses but no documents. After a hearing on March 21, 2006, the trial

court sustained Tracy’s motions and ordered the following: that Executive

Catering produce the documents described in the motion to compel; that

Kimberly appear for a deposition no later than April 11, 2006; and that Kimberly

pay Tracy’s attorney sanctions of $500.

      Nor Dubois filed a petition in intervention on April 12, 2006.     In the

petition, Nor Dubois alleged (1) that Kimberly misappropriated tangible personal

property from Nor Dubois and transferred it to Executive Catering, (2) that

Kimberly breached a fiduciary duty to Nor Dubois and tortiously interfered with

actual or prospective contracts between Nor Dubois and its customers to

persuade them to transfer their business to Executive Catering, and (3) that

Executive Catering is the alter ego of Tony and Linda Caterine, both directors

of Executive Catering along with Kimberly. It named Executive Catering as a

defendant, in addition to Kimberly.

      Tracy filed a second motion for sanctions on May 4, 2006, contending

that Kimberly had failed to pay the $500 as previously ordered in March. He

also stated that the case was ready for mediation but only if the trial court

                                       5
ordered one of the Caterines to attend. Although the record shows that the

trial court set the motion for a hearing on June 6, 2006, it does not show

whether the trial court ruled on the motion.

      Tracy filed a third motion to compel on January 19, 2007, alleging that

at Kimberly’s deposition, she “refused to provide an address or a phone number

for Tony Caterine and gave vague, if not inconsistent, testimony about his

residence address.”     Kimberly had previously responded to a request for

disclosure and an interrogatory with Tony’s business address only; according

to Tracy, attempts to serve Tony at that address were unsuccessful. Tracy

also alleged that he asked Kimberly’s counsel again for the information, but he

refused. The trial court ordered Executive Catering to provide all residence

addresses and phone numbers for Tony and imposed discovery sanctions of

$1,500 on Executive Catering, payable to Tracy’s counsel.

      Appellees joined in a motion for sanctions filed February 22, 2007, six

days before trial.    In it, they alleged that Kimberly’s November 8, 2006

responses to September 27, 2006 requests for disclosure and interrogatories

were deficient. Specifically, appellees claimed that the responses (a) were not

timely, (b) failed to state any legal theories or the factual bases for Kimberly’s

claims or defenses, and (c) failed to provide a brief statement of each identified

person’s connection with the case. They further claimed that they had notified

                                        6
Kimberly’s counsel of the deficiencies, but he had failed to respond. A review

of Kimberly’s responses shows that she identified a list of around thirty persons

with “personal knowledge of the relationship” but failed to include a brief

statement about each of those witnesses’ connection with the case. She also

failed completely to answer the questions regarding the legal theories and

factual bases of her claims or defenses and the amount and method of

calculating economic damages.       Appellees asked the trial court to prohibit

Kimberly from calling any witnesses at trial on Nor Dubois’s claims and from

offering evidence of any defenses. They also noted that Executive Catering had

failed to pay the $1500 sanctions and asked for additional monetary sanctions. 4

      The trial court heard argument on the sanctions motion before beginning

a bench trial on February 28, 2007 5 and decided that the motion should be

granted.   Accordingly, the trial court prohibited appellants from calling any

witnesses at trial on, or offering evidence of any defenses to, Nor Dubois’s

breach of fiduciary duty, conspiracy, and tortious interference claims. After




      4
      … Executive Catering paid these sanctions on the afternoon of February
22, 2007, after appellees had filed their motion.
      5
      … On the back page of the motion is a “Notice of Hearing” stating that
the motion was set for hearing “just prior to the inception of trial of this cause.”


                                         7
appellees rested, the trial court granted Nor Dubois a directed verdict “[o]n all

the issues contained in . . . the amended [petition in] intervention.”

      On April 10, 2007, the trial court signed a decree granting the divorce

and dividing the marital estate. The decree also ordered appellants, jointly and

severally, to pay Nor Dubois damages of $235,000. The trial court did not

specify which of Nor Dubois’s claims supported the damage award. Appellants

filed a motion for new trial, alleging that the sanctions imposed by the trial

court were excessive, that the directed verdict was improper, and that there is

no evidence supporting an award of damages to Nor Dubois, the same

complaints Kimberly raises on appeal. The motion was overruled by operation

of law.

                                Issue on Appeal

      Kimberly claims that the directed verdict in Nor Dubois’s favor was

improper because the trial court’s sanctions order prohibiting appellants from

offering witnesses and evidence in defense of Nor Dubois’s claims, upon which

the directed verdict was based, was improper; and even if the sanctions order

was proper, Nor Dubois’s evidence was legally insufficient to support the trial

court’s judgment in Nor Dubois’s favor on both liability and damages.




                                       8
                             Standards of Review

      An appellate court reviews a trial court’s ruling on a motion for sanctions

for an abuse of discretion. Cire v. Cummings, 134 S.W .3d 835, 838 (Tex.

2004); Richmond Condominiums v. Skipworth Commercial Plumbing, Inc., 245

S.W.3d 646, 660 (Tex. App.—Fort Worth 2008, pet. denied); VingCard A.S.

v. Merrimac Hospitality Sys., 59 S.W.3d 847, 855 (Tex. App.—Fort Worth

2001, pet. denied). The abuse of discretion standard requires us to determine

whether the trial court acted without reference to any guiding rules or

principles; in other words, whether the act was arbitrary and unreasonable.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985),

cert. denied, 476 U.S. 1159 (1986). Merely because an appellate court would

in a similar circumstance decide the matter differently does not demonstrate

that an abuse of discretion has occurred. Id.

      A directed verdict is proper only under limited circumstances: (1) when

the evidence conclusively establishes the right of the movant to judgment or

negates the right of the opponent or (2) when the evidence is insufficient to

raise a material fact issue. See Prudential Ins. Co. v. Fin. Review Servs., Inc.,

29 S.W.3d 74, 77 (Tex. 2000); Ray v. McFarland, 97 S.W.3d 728, 730 (Tex.

App.—Fort Worth 2003, no pet.). In reviewing a directed verdict, we must

credit favorable evidence if reasonable jurors could and disregard contrary

                                       9
evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168

S.W.3d 802, 827 (Tex. 2005).

       We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (4) the evidence establishes conclusively the opposite

of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334

(Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No

Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361,

362–63 (1960). In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

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

finding unless a reasonable factfinder could not. City of Keller, 168 S.W.3d at

827.

                         Propriety of Sanctions Order

       Texas Rule of Civil Procedure 215.2 allows a trial court to sanction a

party for failure to comply with a discovery order or request and lists the

sanctions a court may impose. Tex. R. Civ. P. 215.2; Cire, 134 S.W.3d at

839. These sanctions include refusing to allow the disobedient party to support

                                       10
or oppose designated claims or defenses or prohibiting designated evidence

from being introduced into evidence. Tex. R. Civ. P. 215.2(b)(4); Cire, 134

S.W.3d at 839; see also Tex. R. Civ. P. 193.6(a) (providing that party who fails

to make, amend, or supplement discovery response in timely manner may not

introduce the untimely disclosed material into evidence and may not offer the

testimony of an untimely identified witness unless the trial court finds good

cause or absence of unfair surprise or prejudice).

      A trial court’s ability to sanction is limited by the requirement that the

sanctions be just. See Tex. R. Civ. P. 215.2(b); Cire, 134 S.W.3d at 839;

Fethkenher v. Kroger Co., 139 S.W.3d 24, 35 (Tex. App.—Fort Worth 2004,

no pet.). To determine whether discovery sanctions are just, we engage in a

two-part inquiry. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583

(Tex. 2006); Fethkenher, 139 S.W.3d at 35. First, a direct relationship must

exist between the complained-of conduct and the sanctions imposed; in other

words, just sanctions must be directed against the abuse and toward remedying

the prejudice caused the innocent party. Am. Flood Research, 192 S.W.3d at

583; Cire, 134 S.W.3d at 839; Fethkenher, 139 S.W.3d at 35. Second, the

sanctions must not be excessive; in other words, “[t]he punishment should fit

the crime,” and the trial court must consider the availability of less stringent

sanctions and whether any available lesser sanctions would fully promote

                                      11
compliance. Am. Flood Research, 192 S.W.3d at 583; Cire, 134 S.W.3d at

839; Fethkenher, 139 S.W.3d at 35. A trial court may not impose a sanction

that is more severe than necessary to satisfy its legitimate purpose. Cire, 134

S.W.3d at 839; Hamill v. Level, 917 S.W.2d 15, 16 (Tex. 1996).                In

considering whether sanctions are just, we review the entire record, including

the evidence, arguments of counsel, written discovery on file, and the

circumstances surrounding the parties' discovery abuse.       Fethkenher, 139

S.W.3d at 35; Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex.

App.—Houston [1st Dist.] 1998, pet. denied) (op. on reh’g).

       Death penalty, or case-determinative sanctions, should be imposed only

in exceptional circumstances in which they are clearly justified and it is fully

apparent that no lesser sanction would promote compliance with the rules.

Cire, 134 S.W.3d at 840–41; Johnson ex rel. Johnson v. Chesnutt, 225

S.W.3d 737, 743 (Tex. App.—Dallas 2007, pet. denied). An exceptional case

exists when a party’s hindrance of the discovery process justifies a presumption

that its claims lack merit. Cire, 134 S.W.3d at 841; Johnson, 225 S.W.3d at

743.




                                      12
      Applicable Facts

      Appellees served interrogatories and requests for disclosure on appellants

in late September 2006, to which each responded on November 8, 2006.

Neither Kimberly nor Executive Catering responded to the question asking for

“the legal theories and, in general, the factual bases of the responding party’s

claims or defenses.” In addition, each responded to a question inquiring about

“the name, address, and telephone number of persons having knowledge of

relevant facts, and a brief statement of each identified person’s connection with

the case,” with a list of the same thirty persons’ names, addresses, and some

phone numbers and the summary, “All of the above witnesses have personal

knowledge of the relationship.”

      Appellees’ counsel sent appellants’ counsel a letter on December 11,

2006, noting that appellants had failed to state any legal theories or factual

bases for their claims or defenses and that the summary provided about the

witnesses’ knowledge of the case was “so vague and overbroad that it is

virtually meaningless.” Accordingly, counsel asked appellants to correct the

problems and send amended responses before December 27, 2006. Because

appellants did not do so, counsel filed the motion for sanctions in February one

week before trial.




                                       13
      At the sanctions hearing, which the trial court held immediately before

trial began, appellants did not offer any explanation as to why they had failed

to answer the question regarding claims and defenses other than to say that

Kimberly’s defense to the divorce was self-evident because she had filed a

counter-petition for divorce. As to the production of the names and addresses

of thirty witnesses who “had personal knowledge of the relationship between

the parties,” Kimberly’s counsel argued that appellants were going to call only

two witnesses: “the two women that were involved and aware and worked

with and around both people involved.”      Counsel stated,    “We don’t have

nothing more.   We’re not talking about corporations of individuals.     We’re

talking about the relationship between the parties, the parties being” Tracy and

Kimberly. He also explained that Executive Catering was late paying the $1500

due to a communication problem. As to Kimberly’s counterpetition for divorce,

counsel stated that “[t]he defensive posture . . . is they both want a divorce,

they both complain of the action and that’s self-apparent by the file that you

have before you.”

      Counsel for Executive Catering argued that the discovery answers were

merely incomplete and that the trial court could not exclude evidence,

witnesses, or both unless it found unfair surprise or prejudice. According to




                                      14
counsel, “[t]here is nothing in the responses that is new. There is nothing that

they aren’t already aware of.”

      Appellees’ counsel responded that appellants’ discovery answers were

still insufficient because there were two corporations involved in the case as

well as Tracy and Kimberly and that Kimberly’s relationship with Executive

Catering was not related just to the divorce but also to Nor Dubois’s claims of

breach of fiduciary duty and tortious interference. Thus, he still could not tell

if appellants had defenses, or were going to call witnesses with respect to, Nor

Dubois’s claims in intervention. He also stated that he had not been provided

with a witness or exhibit list as required by the local rules for Denton County.

      In its order granting appellees’ motion and prohibiting appellants from

calling any witnesses at trial or from offering any evidence of defenses to Nor

Dubois’s claims, the trial court noted that it had taken judicial notice of the file

in the case, “specifically, the prior orders of sanctions imposed on . . .

Kimberly . . . and . . . Executive Catering.” 6

      Analysis


      6
       … These prior orders are (i) the March 21, 2006 order compelling
Executive Catering to produce documents, ordering Kimberly to attend a
deposition, and ordering Kimberly to pay Tracy’s attorney $500 and (ii) the
January 30, 2007 order compelling Executive Catering to produce Tony
Caterine’s address and telephone number and ordering Executive Catering to
pay Nor Dubois’s counsel $1500.

                                        15
      Kimberly claims that the trial court abused its discretion by imposing

sanctions prohibiting her from calling any witnesses or offering any evidence at

trial on Nor Dubois’s claims. Kimberly initially complains that appellees waived

their right to seek sanctions by filing their motion too late. She also points out

that the motion for sanctions was the first motion related to this particular set

of discovery.

      Only a failure to obtain a ruling before trial actually begins will waive the

right to complain about the failure to answer discovery. Remington Arms Co.

v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993); Trahan v. Lone Star Title Co.

of El Paso, Inc., 247 S.W .3d 269, 282–83 (Tex. App.—El Paso 2007, pet.

denied); Adkins Servs., Inc. v. Tisdale Co., 56 S.W.3d 842, 844–45 (Tex.

App.—Texarkana      2001,    no   pet.).        Likewise,   rule   215.2   specifically

contemplates that a motion to compel need not be filed before a motion for

sanctions. Tex. R. Civ. P. 215.2(b); Adkins, 56 S.W.3d at 844. Thus, we

conclude and hold that appellees did not waive their right to sanctions.




                                           16
      Kimberly also claims that the sanctions were excessive. 7 The trial court

indicated in its order that it had taken judicial notice of the file, specifically the

prior sanctions orders, and it was aware of the past discovery abuses for which

it had sanctioned appellants.      Specifically, the record shows a pattern of

Kimberly’s recalcitrance in providing information about Executive Catering (a

corporation for which she served as an initial director) and Tony Caterine, in

addition to a pattern of both Kimberly and Executive Catering paying monetary

sanctions imposed by the trial court only after Tracy and Nor Dubois had filed

additional sanctions motions.      Neither counsel for Kimberly nor counsel for

Executive Catering told the trial court that appellants would be asserting any

defenses to Nor Dubois’s claims at the sanctions hearing; Kimberly’s counsel

told the trial court only that, as to the divorce, Kimberly wanted one as well as

Tracy. Out of thirty potential witnesses identified in the discovery, Kimberly’s

counsel stated that he planned to call only two, but he never explained

specifically what he thought those two would testify to other than Tracy and

Kimberly’s “relationship.” Additionally, even though Kimberly and Executive


      7
       … An order prohibiting a party from presenting evidence on, or calling
witnesses as to, claims or defenses for which the party failed to answer or
supplement discovery is limited to the direct consequences of the offensive
conduct; thus, the first TransAmerican prong is satisifed. Jackson v. Jackson,
No. 01-05-00194-CV, 2006 WL 3438703, at *9 (Tex. App.—Houston [1st
Dist.] Nov. 30, 2006, no pet.) (mem. op.).

                                         17
Catering both failed to respond in any way to the discovery asking about the

legal theories and factual bases of any claims or defenses, they continued to

maintain to the trial court that they had only provided incomplete answers to

the discovery. Thus, in addition to considering their past behavior hindering

discovery, the trial court could have also concluded that lesser sanctions would

not have been adequate based on appellants’ refusal to acknowledge that they

had failed to adequately answer the discovery.8 Based on the foregoing, we

conclude and hold that the sanctions were not excessive and that the trial court

did not abuse its discretion by imposing sanctions under rule 215.2(b). See

Tex. R. Civ. P. 215.2(b); Cire, 134 S.W.3d at 840; Johnson, 225 S.W.3d at

743–44; Jackson, 2006 WL 3438703, at *9; see also Tex. R. Civ. P. 193.6.




      8
       … Included in Kimberly’s complaint about the sanctions is the allegation
that she did nothing wrong and that the trial court improperly imputed
Executive Catering’s discovery abuses to her. However, our review of the
record shows that the sanctioned behavior was not attributable solely to
Executive Catering. Moreover, Kimberly was not only an employee of Executive
Catering but also a director.

                                      18
Sufficiency of the Evidence




            19
      Kimberly also challenges the legal sufficiency of the evidence to support

the $235,000 damage award under either a breach of fiduciary duty or tortious

interference theory. 9

      Breach of Fiduciary Duty

      The elements of a breach of fiduciary duty claim are as follows: (1) the

existence of a fiduciary relationship between the plaintiff and defendant; (2)

defendant’s breach of the duty imposed by the relationship; and (3) a resulting

injury to the plaintiff or benefit to the defendant. See Jones v. Blume, 196

S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied); Punts v. Wilson, 137

S.W.3d 889, 891 (Tex. App.— Texarkana 2004, no pet.). Based on Tracy’s

testimony that Nor Dubois obtained its prospective customers from a list

compiled by the National Business Aviation Association that is available to all

members of the Association, Kimberly contends that there is no evidence of

breach because she did not improperly use or share with Executive Catering any

confidential or proprietary information.10 Nor Dubois claimed that Kimberly took



      9
      … Kimberly’s brief appears to contain a challenge to the award of
damages based on conspiracy to breach fiduciary duty; however, this complaint
was not preserved because it is inadequately briefed. See Tex. R. App. P.
38.1; McClure v. Denham, 162 S.W.3d 346, 349 (Tex. App.—Fort Worth
2005, no pet.).
      10
        … Kimberly also states in the “Summary of the Argument” part of her
brief that “there is some question if [she] owed a fiduciary duty to Nor Dubois

                                      20
not only its personal property with her to Executive Catering but also its pricing

structure, menu, chef, and customer list.

       A former employee may use the general knowledge, skills, and experience

acquired in an employment relationship, even when competing with a former

employer. Sands v. Estate of Buys, 160 S.W.3d 684, 687 (Tex. App.—Fort

Worth 2005, no pet.); Am. Derringer Corp. v. Bond, 924 S.W.2d 773, 777

(Tex. App.—Waco 1996, no writ).          But a former employee may not use

confidential or proprietary information or trade secrets the employee learned in

the course of employment for the employee’s own advantage and to the

detriment of the employer. Fox v. Tropical Warehouses, Inc., 121 S.W.3d 853,

858 (Tex. App.—Fort Worth 2003, no pet.); Rugen v. Interactive Bus. Sys.,

Inc., 864 S.W.2d 548, 551 (Tex. App.—Dallas 1993, no writ).           To warrant

protection, the information must have a substantial element of secrecy and give

the employer a competitive advantage. Tom James of Dallas, Inc. v. Cobb, 109

S.W.3d 877, 888 (Tex. App.—Dallas 2003, no pet.); Rugen, 864 S.W.2d at

552.    Secrecy implies the information is not generally known or readily

ascertainable. Tom James of Dallas, 109 S.W.3d at 888.




at all.” But she failed to brief this challenge; thus, it is waived. See Tex. R.
App. P. 38.1; McClure, 162 S.W.3d at 349.

                                       21
      Tracy testified that when Nor Dubois began doing business, he went to

potential customers individually, including those for whom he had performed

maintenance work, brought them samples, and held marketing parties. As the

business grew, Nor Dubois took advice from its customers as to its services.

The customer list was password protected and kept in a QuickBooks database;

Tracy claimed that before Kimberly resigned, she changed the password so that

he could not access the list, among other items. Additionally, the evidence

shows that one of the offers to purchase Nor Dubois specifically set the

purchase price for the customer list at $100,000, and the other included

“current and future client base” as part of the business assets to be purchased

for $225,000. According to Tracy, Executive Catering’s client list included

sixty of Nor Dubois’s former customers.

      On cross-examination, Tracy testified that Nor Dubois and its four

competitors in the Dallas area were trying to reach at least one hundred

customers with about $5 million in sales. When asked whether a list of these

potential customers exists, Tracy answered that a member of the National

Business Aviation Association can obtain the list. However, Tracy made it clear

that this list is a “target” list and was not Nor Dubois’s client list.

      We conclude and hold that there is legally sufficient evidence to show

that Kimberly and Executive Catering used proprietary information belonging to

                                        22
Nor Dubois. The evidence shows that Nor Dubois developed its own client list,

that it was kept in a password-protected database available to Tracy, Kim, and

the office manager, and that at least two companies had specifically assigned

a part of the purchase price offered to Nor Dubois to obtaining its client list.

Accordingly, we address Kimberly’s next complaint that there is no evidence to

support the damage award to Nor Dubois.

      Kimberly contends that the damage award is not supported by legally

sufficient evidence because it is based solely on the diminution in value of Nor

Dubois as a result of appellants’ actions. According to Kimberly, a plaintiff may

recover only out-of-pocket losses or lost profits for a breach of fiduciary duty.

She cites Texas Instruments Inc. v. Teletron Energy Mgmt., 877 S.W.2d 276

(Tex. 1994), and Duncan v. Lichtenberger, 671 S.W.2d 948 (Tex. App.—Fort

Worth 1984, writ ref’d n.r.e.), to support her argument. But these cases do

not stand for the proposition that these measures of damages are the exclusive

remedies for breach of fiduciary duty.

      In Texas Instruments, the issue was whether the plaintiff proved lost

profits stemming from breach of express warranties and DTPA violations with

the required level of reasonable certainty. 877 S.W.2d at 277–80. And in

Duncan, this court held that the evidence was sufficient to support an out-of-

pocket expense damage award for breach of fiduciary duty as “the remedy

                                       23
chosen by the appellees” in that case.        671 S.W.2d at 953.       This court

supported its conclusion in part on the jury’s finding that the appellant’s breach

was a proximate cause of damage to the appellees. Id. Nothing in either of

these cases restricts the types of damages that can be awarded on a breach of

fiduciary duty claim. See Horton v. Robinson, 776 S.W.2d 260, 266 (Tex.

App.—El Paso 1989, no pet.) (reviewing propriety of damage award for breach

of fiduciary duty and civil conspiracy and noting that “[w]here the law furnishes

no legal measure of damages and they are unliquidated, the amount to be

awarded rests largely in the discretion of the jury.”); cf. Swank v. Sverdlin, 121

S.W.3d 785, 797–98 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)

(holding that damages model based on diminution in value of corporation as a

result of breach of fiduciary duty was based on sound calculation but reversing

because no evidence supported jury’s award splitting total diminution in value

into four parts and attributing one quarter of the total to each tortfeasor), cert.

denied, 544 U.S. 1033 (2005).

      Here, Tracy testified that after Kimberly left Nor Dubois—taking

customers, supplies, and all of the employees, including the chef, with her—he

was unable to continue operating the business on his own.11 Although he was


      11
        … He could not access the Nor Dubois client list and supplier list for
three days after Kimberly left because the password to the computer on which

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able to sell the remaining equipment for $60,000 about a month after she left,

he had to use that money to pay off the company’s debts. A certified public

accountant, John Graves, testified that Nor Dubois was worth $236,773 as of

December 31, 2004 but $0 after Kimberly resigned in January 2005. A report

he drafted, which was entered into evidence, noted that, “[i]n summary, [he]

would value the business at $235,000, allowing for small fluctuations.” We

hold that this evidence is sufficient to support the $235,000 damage award to

Nor Dubois.12 See Goodin v. Joliff, 257 S.W.3d 341, 346 (Tex. App.—Fort

Worth 2008, no pet.).

      Because we conclude that none of Kimberly’s subissues have merit, we

overrule her sole issue on appeal.




                                     Conclusion




these were stored had been changed.
      12
       … Because we have determined that the award is supportable based on
Nor Dubois’s claims alleging Kimberly’s breach of fiduciary duty, we need not
address her complaint regarding whether the award is supportable based on Nor
Dubois’s claim for tortious interference. See Tex. R. App. P. 47.1; Horsley-
Layman v. Adventist Health Sys./Sunbelt, Inc., 221 S.W.3d 802, 809 (Tex.
App.—Fort Worth 2007, pet. denied).

                                        25
     Having determined that the trial court did not err by imposing sanctions

against appellants and that the damage award to Nor Dubois is supported by

the evidence, we overrule Kimberly’s sole issue and affirm the trial court’s

judgment.




                                               TERRIE LIVINGSTON
                                               JUSTICE


PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.

DELIVERED: November 13, 2008




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