            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                               FILED
                                                                           November 5, 2008

                                         No. 07-50609                    Charles R. Fulbruge III
                                                                                 Clerk

RAY MART INC doing business as, Tri-Supply Co; WELDON VYBIRAL

                                                     Plaintiffs-Counter Defendants-
                                                     Appellees
v.

STOCK BUILDING SUPPLY OF TEXAS LP

                                                     Defendant-Counter Plaintiff-
                                                     Appellant
v.

GLENN COVINGTON

                                                     Counter Defendant-Appellee



                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No. 6:06-cv-00063


Before SMITH and PRADO, Circuit Judges, and YEAKEL*, District Judge.
PER CURIAM:**




       *
           District Judge of the Western District of Texas, sitting by designation.
       **
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 07-50609

      This case primarily concerns the enforceability of noncompete covenants
under Texas law. The district court found the noncompete covenant between
Stock Building Supply of Texas, L.P. (“Stock”) and Weldon Vybiral (“Vybiral”)
to be unenforceable and ruled against Stock on all of its other claims against
Vybiral, Ray Mart, Inc., doing business as Tri-Supply Company (“Tri-Supply”),
and Glenn Covington (“Covington”). Because we hold that the district court
erred in concluding that the noncompete covenant was unenforceable, we vacate
in part, affirm in part, and remand the case to the district court.
                I. FACTUAL AND PROCEDURAL HISTORY
A.    Factual Background
      Stock provides building materials and construction services to
homebuilders.    In January 2003, Stock purchased the assets of Wenco
Distributors (“Wenco”), including Wenco’s door mill operation in Temple, Texas.
At the time of this purchase, Vybiral had been the general manager of the
Temple facility for over thirteen years. As part of the purchase agreement with
Wenco, Stock required that all branch managers of Wenco’s Texas locations
execute an employment agreement with Stock. Vybiral entered into such an
agreement (the “Employment Agreement”), which included (1) a defined term of
three years; (2) a statement that Stock was entitled to terminate Vybiral for
“good cause,” as defined in the agreement; (3) a noncompete covenant; (4) a
nonsolicitation of customers and employees covenant; and (5) a nondisclosure of
trade secrets covenant.
      Tri-Supply is a building supply company that operates door mills and
prehanging shops throughout Texas. Some time after Stock purchased the
Temple facility, Tri-Supply opened a door mill and prehanging shop in Temple.
In the ensuing months, Vybiral and Covington, an outside salesperson for Stock,
left Stock for Tri-Supply, and many Stock employees soon joined them. In total,
over a dozen Stock employees went to work for Tri-Supply.             Thereafter,


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                                  No. 07-50609

profitability at Stock’s Temple facility declined, and in February 2007, Stock
closed the facility.
      The parties dispute the reasons for the employees’ departure from Stock
and Stock’s subsequent downfall. Stock asserts that after it began operating in
Temple, Tri-Supply decided to open operations nearby and sought to poach Stock
employees. Stock further asserts that Tri-Supply colluded with Vybiral and
Covington to accomplish these goals, pointing to several encounters between Tri-
Supply representatives and Stock employees as evidence of improper solicitation.
Stock claims that the loss of its key employees led directly to declining
profitability and the eventual closing of its Temple facility.
      Tri-Supply, Vybiral, and Covington assert that almost immediately after
Stock’s acquisition of Wenco, the work environment at the Temple facility
changed for the worse. They contend that unhappy workers and unhappy
customers eventually left Stock of their own volition and turned to Tri-Supply.
Further, Tri-Supply, Vybiral, and Covington sharply contest Stock’s allegations
of improper solicitation of employees, characterizing all encounters between Tri-
Supply representatives and Stock employees as casual and harmless.
B.    Procedural History
      On December 5, 2005, Tri-Supply and Vybiral brought a petition for
declaratory judgment against Stock in Texas state court seeking a declaration
that the noncompete covenant in Vybiral’s Employment Agreement was void and
unenforceable. Stock removed the case to the Eastern District of Texas, which
later transferred the case to the Western District of Texas. On March 2, 2006,
Stock filed its counterclaims, applied for a preliminary and permanent
injunction, and moved for a temporary restraining order to enforce Vybiral’s
Employment Agreement.        The district court denied Stock’s motion for a
temporary restraining order, granted a preliminary injunction enjoining Vybiral



                                        3
                                  No. 07-50609

from soliciting Stock’s customers, and denied an injunction as to the noncompete
covenant.
      Following a bench trial, the district court issued findings of fact and
conclusions of law, ruling against Stock on all claims.        The district court
concluded that (1) the noncompete covenant was unenforceable, (2) the
nonsolicitation of customers covenant was unenforceable, (3) Vybiral did not
engage in conduct that violated the nonsolicitation of employees covenant,
(4) Vybiral and Covington had not breached a fiduciary duty or duty of loyalty
to Stock, (5) Tri-Supply did not tortiously interfere with Vybiral’s Employment
Agreement, (6) Tri-Supply did not tortiously interfere with Stock’s employment
relationships with its employees, and (7) there was no evidence of Stock’s
damages. This timely appeal followed.
                        II. STANDARD OF REVIEW
      In an appeal from a bench trial, we review findings of fact for clear error.
Bd. of Trustees New Orleans Employers Int’l Longshoremen’s Ass’n, AFL-CIO
Pension Fund v. Gabriel, Roeder, Smith & Co., 529 F.3d 506, 509 (5th Cir. 2008).
“A finding is clearly erroneous if it is without substantial evidence to support it,
the court misinterpreted the effect of the evidence, or this court is convinced that
the findings are against the preponderance of credible testimony.” Id. “Reversal
for clear error is warranted only if the court has a definite and firm conviction
that a mistake has been committed.” Id. (quotation omitted). Finally, we review
legal issues de novo. Id.
                               III. DISCUSSION
A.    Noncompete Covenant
      Stock first asserts that the district court erred in finding the noncompete
covenant unenforceable. The enforceability of a noncompete covenant is a
question of law. Light v. Centel Cellular Co. of Tex., 883 S.W.2d 642, 644 (Tex.
1994), abrogated in part on unrelated grounds by Alex Sheshunoff Mgmt. Servs.,

                                         4
                                  No. 07-50609

L.P. v. Johnson, 209 S.W.3d 644 (Tex. 2006). Under § 15.50 of the Texas
Business and Commerce Code, a noncompete covenant is enforceable if (1) “it is
ancillary to or part of an otherwise enforceable agreement at the time the
agreement is made,” and (2) “it contains limitations as to time, geographical
area, and scope of activity to be restrained that are reasonable and do not impose
a greater restraint than is necessary to protect the goodwill or other business
interest of the promisee.” TEX. BUS. & COM. CODE ANN. § 15.50(a).
      Determining whether a noncompete covenant is ancillary to an otherwise
enforceable agreement consists of two steps.        First, we must identify an
“otherwise enforceable agreement” between Vybiral and Stock. See Strickland
v. Medtronic, Inc., 97 S.W.3d 835, 838 (Tex. App.—Dallas 2003, pet. dism’d
w.o.j.). This requires setting aside the noncompete covenant and determining
whether any binding promises remain that would constitute an enforceable
agreement. 31-W Insulation Co. v. Dickey, 144 S.W.3d 153, 157 (Tex. App.—Fort
Worth 2004, pet. withdrawn).        Second, we must determine whether the
noncompete covenant is ancillary to this otherwise enforceable agreement.
Strickland, 97 S.W.3d at 839. In order to meet this “ancillary to” step, “‘(1) the
consideration given by the employer in the otherwise enforceable agreement
must give rise to the employer’s interest in restraining the employee from
competing; and (2) the covenant must be designed to enforce the employee’s
consideration or return promise in the otherwise enforceable agreement.’”
Sheshunoff, 209 S.W.3d at 649 (quoting Light, 883 S.W.2d at 647).
      1.    Otherwise Enforceable Agreement
      Disregarding the noncompete covenant, we find that an otherwise
enforceable agreement existed between Vybiral and Stock. Each party made
multiple enforceable promises in the Employment Agreement. Stock points, in
particular, to (1) Stock’s promise to employ Vybiral for three years, (2) Vybiral’s



                                        5
                                        No. 07-50609

promise to work for Stock for three years,1 and (3) Vybiral’s promise not to
disclose any trade secrets or other confidential information that he obtained
while working for Stock.2 We agree with Stock that these promises constitute
an otherwise enforceable agreement. Stock promised to employ Vybiral for a
term of three years, terminable only for good cause.3 In exchange, Vybiral
promised to work for Stock for three years and not to disclose any confidential
information that he obtained during his employment. These promises created
an employment relationship terminable only for good cause, which is an
otherwise enforceable agreement for the purposes of § 15.50. See C.S.C.S., Inc.
v. Carter, 129 S.W.3d 584, 591 (Tex. App.—Dallas 2003, no pet.).




       1
        Paragraph one of the Employment Agreement reads:
       Employment and Term. The Employer agrees to employ the Employee for a
       period of three years commencing on the date hereof and the Employee agrees
       to be employed by the Employer for such period.
       2
        Paragraph nine of the Employment Agreement reads:
       Covenant Against Disclosure of Trade Secrets. The Employee agrees that he
       shall always keep confidential any and all information obtained by him as an
       employee of the Employer regarding any trade secrets or conditions and
       methods of operation of the Employer which are not generally known
       throughout the industry.
       3
         Vybiral asserts that his employment was at will. Texas follows the general rule that,
“absent a specific agreement to the contrary, employment may be terminated by the employer
or the employee at will, for good cause, bad cause, or no cause at all.” Montgomery County
Hosp. Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. 1998). “In order to alter the employment at
will presumption, a writing which attempts to alter the presumption must, in a meaningful
and special way, limit the employer’s right to terminate the employment at will.” Evan’s World
Travel, Inc. v. Adams, 978 S.W.2d 225, 229 (Tex. App.—Texarkana 1998, no pet.) (quotation
omitted). In the present case, Stock has agreed to employ Vybiral for a fixed term, terminable
only for good cause. In so doing, Stock has placed meaningful limits on its ability to terminate
Vybiral’s employment. See C.S.C.S., Inc. v. Carter, 129 S.W.3d 584, 591 (Tex. App.—Dallas
2003, no pet.) (“A contract for a stated term of employment . . . limits the employer’s ability to
terminate at will if the parties negotiated the terms of employment and intended to directly
limit in a meaningful and special way the employee’s at-will status.” (quotation marks
omitted)). Thus, Vybiral’s employment was not at will.

                                                6
                                  No. 07-50609

      2.     Ancillary To
      For Vybiral’s noncompete covenant to be enforceable, it must be ancillary
to this otherwise enforceable agreement. As noted above, there are two elements
in the “ancillary to” inquiry: (1) the consideration given by the employer in the
otherwise enforceable agreement must give rise to the employer’s interest in
restraining the employee from competing, and (2) the covenant must be designed
to enforce the employee’s consideration or return promise in the otherwise
enforceable agreement.
      We have little trouble finding that the noncompete covenant is designed
to enforce Vybiral’s promise not to disclose any confidential information that he
obtained while working for Stock, satisfying the second element. See, e.g., Curtis
v. Ziff Energy Group, Ltd., 12 S.W.3d 114, 118 (Tex. App.—Houston [14th Dist.]
1999, no pet.) (finding a noncompete covenant ancillary to an otherwise
enforceable agreement where “the covenant not to compete [was] designed to
enforce [the employee’s] consideration not to disclose or use the confidential
information or trade secrets after employment”); Ireland v. Franklin, 950 S.W.2d
155, 158 (Tex. App.—San Antonio 1997, no writ) (finding a noncompete covenant
ancillary to an otherwise enforceable agreement where “the covenant not to
compete [was] designed to enforce [the employee’s] consideration not to disclose
or use . . . trade secrets”).
      Consequently, all that remains is finding consideration given by Stock in
the otherwise enforceable agreement that gives rise to Stock’s interest in
restraining Vybiral from competing.         Stock argues that the Employment
Agreement includes at least three bases for finding such an interest: (1) Stock’s
promise of term employment gave rise to an interest in protecting its goodwill,
(2) Stock’s promise of term employment gave rise to an interest in protecting
confidential information that Vybiral would obtain during his employment, and
(3) Stock’s actual provision of confidential information to Vybiral gave rise to an

                                        7
                                  No. 07-50609

interest in protecting that information.      We address only Stock’s second
argument.
      A noncompete covenant is not always ancillary to an agreement for term
employment, as the employer’s consideration—the promise of a fixed term of
employment terminable only for cause—does not necessarily give rise to an
interest in restraining an employee from competing. See, e.g., Light, 883 S.W.2d
at 646 n.10. Stock, however, asserts that its promise of term employment
implicitly but necessarily involved Stock providing Vybiral with confidential
information, giving rise to an interest in protecting this information from
disclosure.
      Under the circumstances of this case, we find this argument persuasive.
The Employment Agreement indicates that both Stock and Vybiral anticipated
that Vybiral would work at Stock for at least three years.         Although the
Employment Agreement did not explicitly set out Vybiral’s duties, the district
court found that Vybiral was told that his duties would not change from those
he had under Wenco. While working for both Wenco and Stock, Vybiral was the
general manger of the Temple facility, a job that would likely involve the use of
confidential information such as price lists, sales strategies, and customer
information. Further, the Employment Agreement itself contemplated that
Vybiral would be receiving confidential information, as evidenced by the
nondisclosure covenant. Finally, the district court found that Vybiral did in fact
have access to Stock’s confidential information, including sales strategies,
marketing strategies, pricing strategies, vendor arrangements, contractor
programs, and customer information.
      Together, these facts suggest that Vybiral’s three years of employment
would likely involve the use of confidential information and that Vybiral and
Stock were both aware of this when entering into the Employment Agreement.
While admittedly a close call, we hold that Stock’s promise to employ Vybiral for


                                        8
                                       No. 07-50609

three years, in light of the above facts, gave rise to an interest in protecting the
confidential information that Stock gave to Vybiral.4                 Such an interest is
precisely the kind that noncompete covenants are meant to protect. See, e.g.,
Sheshunoff, 209 S.W.3d at 649. Thus, we hold that the district court erred in
concluding that the noncompete covenant was not ancillary to an otherwise
enforceable agreement. We vacate the district court’s denial of Stock’s cause of
action for enforcement of the noncompete covenant or damages for its breach, as
well as the declaratory judgment that Vybiral is not bound by the noncompete
covenant.
       Stock has established that the noncompete covenant in this case satisfies
the first requirement of § 15.50.            Stock invites us to decide the second
requirement—that the noncompete covenant contains limitations as to time,
geographical area, and scope of activity to be restrained that are reasonable and
do not impose a greater restraint than is necessary to protect the goodwill or
other business interest of the employer. Because the district court did not reach
this question, we decline to address this issue. Also, if the noncompete covenant
is ultimately enforceable, the district court must determine the appropriate
relief for any violation thereof. We thus remand this issue to the district court.
B.     Nonsolicitation of Customers
       Stock asserts that the district court erred in finding the nonsolicitation of
customers covenant unenforceable. In addition to concluding that the covenant
was unenforceable for the same reasons as the noncompete covenant, the district



       4
          Unlike cases where courts have found that an employer’s consideration did not give
rise to an interest in restraining an employee from competing, Stock has articulated a coherent
theory explaining how its promise to Vybiral gives rise to an interest in restraining Vybiral
from competing. Cf. Olander v. Compass Bank, 172 F. Supp. 2d 846, 855 (S.D. Tex. 2001)
(finding no interest in restraining an employee from competing where the employer had “not
articulated any coherent theory explaining how” its promise of stock options gave rise to an
interest in restraining competition, but emphasizing that it was not ruling that stock options
could never give rise to such an interest), aff’d, 44 F. App’x 651 (5th Cir. 2002).

                                              9
                                      No. 07-50609

court also denied Stock’s claim for breach of the nonsolicitation of customers
covenant because it was not included in Stock’s first amended counterclaim.
Stock does not raise any argument as to why its failure to adequately plead this
issue should be excused and does not assert that the issue was tried by consent
of the parties under Federal Rule of Civil Procedure 15(b)(2). Therefore, Stock
could not raise this claim at trial and we will not consider it here.
C.     Factual Challenges
       In its third, fourth, and fifth arguments on appeal, Stock asserts that the
district court clearly erred in concluding (1) that Vybiral did not violate the
nonsolicitation of employees covenant, (2) that Vybiral and Covington did not
breach a fiduciary duty to Stock, and (3) that Tri-Supply did not tortiously
interfere with Vybiral’s Employment Agreement or Stock’s other employment
relationships. As Stock asserts only clear error, we treat these arguments as
challenges to the district court’s factual determinations regarding these claims.
       1.     Nonsolicitation of Employees
       Stock asserts that the district court erred in finding that Vybiral did not
engage in any conduct that violated the nonsolicitation of employees covenant.
Assuming that the nonsolicitation covenant is enforceable,5 the district court’s
determination of whether Vybiral engaged in conduct that violated the covenant
is a factual issue that we review for clear error. Cf. Navigant Consulting, Inc.
v. Wilkinson, 508 F.3d 277, 287-88 (5th Cir. 2007) (noting that there was
sufficient evidence for a jury to find that employees’ conduct “rose to the level of
solicitation”).


       5
           The parties dispute the standard for determining the enforceability of the
nonsolicitation of employees covenant. We need not decide this issue. It appears that the
district court found—or at least assumed—that the nonsolicitation of employees covenant was
enforceable. It then went on to find that Vybiral did not engage in any conduct that violated
the covenant. Because we hold that the district court’s factual determination was not clearly
erroneous, we assume only for the sake of argument that the nonsolicitation of employees
covenant is enforceable.

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                                  No. 07-50609

      Stock focuses primarily on the encounters between Vybiral, other Stock
employees, and Tri-Supply representatives as instances establishing Vybiral’s
solicitation of Stock employees on behalf of Tri-Supply. These encounters might
appear suspicious if removed entirely from any context, especially considering
that all of the Stock employees involved eventually left to work for Tri-Supply.
However, Stock has little to point to besides suspicion, and Vybiral presented
sufficient testimony for the district court to conclude that none of the encounters
in question violated Vybiral’s nonsolicitation of employees covenant. Thus, Stock
has failed to establish that the district court clearly erred in concluding that
Vybiral did not engage in any conduct that violated the nonsolicitation of
employees covenant, and we affirm the district court’s conclusion on this issue.
      2.    Fiduciary Duty and Duty of Loyalty
      Stock asserts that the district court erred in concluding that Vybiral and
Covington did not breach a fiduciary duty or duty of loyalty to Stock. As an
agent of the employer, an employee generally “has a duty to act primarily for the
benefit of the employer in matters connected with his agency.” Abetter Trucking
Co. v. Arizpe, 113 S.W.3d 503, 510 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
Employees can, however, properly plan to compete with their employer while
still employed. See id.; RESTATEMENT (THIRD) OF AGENCY § 8.04 (2006). Whether
an employee’s acts constitute a breach of fiduciary duty or permissible
preparation to compete is a factual issue that we review for clear error. Cf.
Navigant Consulting, 508 F.3d at 288 (noting that there was sufficient evidence
for a jury to conclude that employees’ behavior breached their fiduciary duty to
their employer); Abetter Trucking, 113 S.W.3d at 513 (noting that “[t]he jury
could reasonably have concluded that [an employee’s] acts did not rise to the
level of solicitation, that he acted in [the employer’s] best interests while
functioning as its agent, that the information he disclosed was sufficient, and
that his acts were permissible preparation to compete.”).

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                                  No. 07-50609

      Stock asserts that Vybiral and Covington each breached their fiduciary
duties to Stock by (1) acting on behalf of a competitor—Tri-Supply—in soliciting
Stock employees while they were still employees of Stock, (2) competing with
Stock on matters relating to their agency by soliciting Stock employees on behalf
of Tri-Supply while still employed by Stock, and (3) not dealing fairly with Stock
by failing to inform Stock that Tri-Supply was opening a facility in Temple, that
they had accepted employment with a competitor, and that the competitor had
offered employment to numerous Stock employees.
      As discussed in the previous section, the district court did not clearly err
in concluding that Vybiral did not solicit or otherwise interfere with the
employment relationships of Stock employees. As for Covington, the only
evidence that Stock points to is Covington’s leaving a Tri-Supply form on the
desks of one or two other Stock employees. Yet Covington testified that he did
not contact anyone about interviewing for prospective employment with Tri-
Supply while he was still employed by Stock. Thus, the district court could very
reasonably have found that Covington did not solicit any Stock employees while
still working for Stock. As to the allegations that Vybiral and Covington
breached their fiduciary duties to Stock by not disclosing that Tri-Supply was
opening a facility in Temple, that Vybiral and Covington intended to leave, or
that others were leaving, the district court very reasonably could have found this
behavior to be permissible preparation for competition. See Abetter Trucking,
113 S.W.3d at 510 (“The employee has no general duty to disclose his plans and
may secretly join with other employees in the endeavor without violating any
duty to the employer.”).
      Stock has not presented sufficient evidence to convince us that the district
court’s conclusions regarding breach of fiduciary duty were clearly erroneous.
Thus, we affirm the district court’s determination that neither Vybiral nor
Covington breached his fiduciary duty to Stock.


                                       12
                                  No. 07-50609

      3.    Tortious Interference
      Stock asserts that the district court erred in finding that Tri-Supply did
not tortiously interfere with Vybiral’s Employment Agreement or Stock’s other
employment relationships. “The elements of a cause of action for tortious
interference with a contract are: (1) the existence of a contract subject to
interference, (2) the occurrence of an act of interference that was willful and
intentional, (3) the act was a proximate cause of the plaintiff’s damage, and
(4) actual damage or loss occurred.” Holloway v. Skinner, 898 S.W.2d 793, 795-
96 (Tex. 1995).
      Stock asserts that Tri-Supply tortiously interfered with Vybiral’s
Employment Agreement by (1) recruiting and hiring Vybiral while aware of his
noncompete covenant, and (2) encouraging Vybiral’s aggressive solicitation and
recruitment of Stock’s top employees while aware of his nonsolicitation of
employees covenant. It is unclear on what basis the district court found no
tortious interference with Vybiral’s Employment Agreement. As Stock suggests,
the district court’s judgment might have been predicated on its earlier conclusion
that the noncompete covenant was unenforceable. Because we hold that the
district court erred in its evaluation of the noncompete covenant, we also vacate
its conclusion as to Tri-Supply’s tortious interference with Vybiral’s employment
agreement and remand this issue to the district court.
      Stock further asserts that Tri-Supply interfered with Stock’s employment
relationships through Vybiral and Covington. Stock essentially argues that
Vybiral and Covington were acting on behalf of Tri-Supply when allegedly
soliciting and recruiting Stock employees, thus willfully and intentionally
interfering with Stock’s employment relationships. As discussed above, however,
the district court did not clearly err in concluding that Vybiral and Covington did
not improperly solicit Stock employees. With no improper solicitation, Vybiral
and Covington’s actions could not be the basis of a tortious-interference claim.

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                                     No. 07-50609

Thus, the district court did not clearly err in concluding that Tri-Supply did not
tortiously interfere with Stock’s employment relationships with its employees.
D.    Damages
      Finally, Stock raises two arguments regarding damages. First, Stock
asserts that the district court erred in excluding Stock’s expert witness, her
report, and her exhibits. Tri-Supply, Vybiral, and Covington moved to exclude
Stock’s expert on the grounds that Stock was late in designating her and
providing her report. We review the district court’s decision to exclude an expert
witness for abuse of discretion. See Campbell v. Keystone Aerial Surveys, Inc.,
138 F.3d 996, 1000 (5th Cir. 1998).
      In determining whether to allow a late-designated expert to testify, a
district court should consider “(1) the importance of the witness’s testimony;
(2) the prejudice to the opposing party if the witness is allowed to testify; (3) the
possibility that a continuance would cure potential prejudice; and (4) the
explanation given for the failure to identify the witness.” Id. On appeal, the
parties rehash the arguments made before the district court regarding the
motion to exclude. Stock focuses in particular on whether Tri-Supply is to blame
for Stock’s late provision of the expert report, arguing that Tri-Supply never
provided Stock with material necessary for the expert to complete her report.
Tri-Supply contests that it did provide the material, noting that it was available
for Stock to inspect at a Tri-Supply location. The district court never made any
findings regarding the motion to exclude, simply granting the motion without
elaboration at the beginning of the trial. As Stock has provided insufficient
evidence to disturb this conclusion,6 we hold that the district court did not abuse
its discretion in excluding Stock’s expert witness.

      6
        Indeed, as Tri-Supply did not mention in its motion to exclude that it had made all
necessary materials available to Stock at a Tri-Supply location, it is quite reasonable to
assume that the district court was especially unpersuaded by Stock’s explanation for its
tardiness.

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                                 No. 07-50609

      Second, Stock asserts that the district court erred in concluding that there
was no evidence of Stock’s damages. As we are vacating the district court’s
judgment in part and remanding for a potential determination of liability, we
also vacate the district court’s conclusion regarding damages. If the district
court finds that either Vybiral or Tri-Supply is liable to Stock on any of the
remanded issues, it should then determine the damages, if any, to which Stock
is entitled.
                             IV. CONCLUSION
      In sum, we VACATE the district court’s judgment insofar as it was
predicated on the district court’s conclusion that the noncompete covenant was
unenforceable, including Stock’s claim against Tri-Supply for tortious
interference with Vybiral’s Employment Agreement, and REMAND that portion
of the case for further proceedings not inconsistent with this opinion. We
AFFIRM the remainder of the district court’s judgment.
      VACATED and REMANDED in part, AFFIRMED in part.




                                       15
