Exploration Marketing Corporation v. M.D. Mark, Inc., and Marilyn E. Davies ( 2002 )

Opinion issued April 4, 2002

In The

Court of Appeals

For The

First District of Texas

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NO. 01-00-00620-CV

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EXPLORATION MARKETING CORP., Appellant

V.

MARILYN E. DAVIES & M.D. MARK, INC., Appellees

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On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 9910679

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O P I N I O N

Exploration Marketing Corporation (EMC) appeals the trial court's order granting Marilyn Davies and M.D. Mark, Inc.'s (MDM) motion for partial summary judgment and the final judgment denying EMC's request for attorney's fees under the Texas Declaratory Judgment Act. We affirm.

Facts

EMC is in the business of gathering seismic data and licensing its use to other companies engaged in oil and gas exploration. In November 1986, EMC licensed the use of certain seismic data to Professional Geophysics Incorporated (PGI). PGI also obtained and marketed seismic data to other companies. In March 1990, EMC and PGI entered into an agreement dissolving their business relationship. The agreement provided that EMC retained ownership of the seismic data disclosed to PGI.

Davies, an officer of PGI, made copies of the seismic data and kept the data after EMC and PGI ceased doing business. Davies then formed MDM and began selling the data without a license from EMC. In April 1998, when EMC attempted to market and sell the same data, it learned Davies and MDM sold the same data. In March 1999, EMC filed its original petition and application for temporary restraining order against Davies and MDM asserting, among other things, causes of action for conversion, declaratory relief, and attorney's fees. Davies and MDM answered and asserted counterclaims for conversion, defamation, business disparagement, and tortious interference with contract. They also sought declaratory judgment that they own the data. Davies and MDM moved for partial summary judgment on EMC's conversion claims, and the trial court granted the motion. At trial, the jury considered the remaining claims and determined Davies was not defamed, MDM was not disparaged, and EMC owned all of the data.

Motion for Partial Summary Judgment

In its first point of error, EMC claims the trial court erred by granting Davies's and MDM's motion for partial summary judgment on the grounds that EMC's conversion claims were barred by the two-year statute of limitations. Specifically, EMC contends that, although its suit was otherwise untimely, the discovery rule tolled the statute of limitations. In the alternative, EMC contends the equitable doctrine of fraudulent concealment should preclude Davies's and MDM's statute of limitations defense.

For this Court to determine whether the granting of Davies and MDM's motion was proper, we must examine the complete summary judgment record. Davis v. Med. Evaluation Specialists, Inc., 31 S.W.3d 788, 795 (Tex. App.--Houston [1st Dist.] 2000, no pet.). EMC's motion for partial summary judgment is not part of the appellate record. ⁽¹⁾

We overrule EMC's first point of error.

Attorney's Fees

In EMC's second point of error, it argues the trial court erred by refusing to award it reasonable and necessary attorney's fees. At trial, EMC defeated appellees's counterclaims and prevailed on its declaratory judgment claim that it owned the seismic data. EMC argues that the trial court's denial of attorney's fees constituted an abuse of discretion.

The Uniform Declaratory Judgment Act provides that "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Tex. Civ. Prac. & Rem. Code Ann. §37.009 (Vernon 1997) (emphasis added). The statute, therefore, affords the trial court discretion in determining whether to award attorney's fees. Bocquet v. Herring, 972, S.W.2d 19, 20 (Tex. 1998). We will not reverse a trial court's decision to grant or deny an award of attorney's fees absent a clear showing of an abuse of discretion. Id. at 21.

At trial, both parties stipulated to fees they considered both reasonable and necessary. Therefore, we consider only whether the trial court's decision denying the award of attorney's fees was equitable and just. The issue of whether fees are equitable and just is a matter of law to be determined by the trial court. Id.

EMC argues two aspects of Davies's and MDM's conduct make the denial of an award of attorney's fees inequitable and unjust. First, Davies and MDM copied and sold unlicensed data to third parties. Second, Davies and MDM took deliberate steps to conceal sales of data to third parties by entering into licensing agreements whose terms prohibited those third parties from disclosing any information about their agreements to EMC. Davies and MDM contend the trial court's denial of attorney's fees was proper because they had a legitimate business interest in litigating title to the data, and they incurred significant attorney's fees defending EMC's claims. They also contend the denial of attorney's fees was proper because EMC did not recover any damages from Davies and MDM on their defamation and business disparagement claims. We conclude, given the facts of this case, the trial court did not abuse its discretion in denying EMC's request for attorney's fees. See Bocquet, 972 S.W.2d at 21 (holding trial court may conclude reasonable and necessary attorney's fees are not equitable or just).

We overrule EMC's second point of error.

Conclusion

We affirm the judgment of the trial court.

Davie L. Wilson

Justice

Panel consists of Justices Cohen, Nuchia, and Wilson. ⁽²⁾

Do not publish. Tex. R. App. P. 47.4.

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