Bluebonnet Petroleum, Inc. v. Kolkhorst Petroleum Company, Inc. ( 2008 )

Appellant=s Motion for Rehearing En Banc is Overruled as Moot; Opinion of July 15, 2008, Withdrawn; Affirmed and Substitute Memorandum Opinion on Rehearing filed October 9, 2008

Appellant=s Motion for Rehearing En Banc is Overruled as Moot; Opinion of July 15, 2008, Withdrawn; Affirmed and Substitute Memorandum Opinion on Rehearing filed October 9, 2008.

In The

Fourteenth Court of Appeals

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NO. 14-07-00380-CV

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BLUEBONNET PETROLEUM, INC., Appellant

V.

KOLKHORST PETROLEUM COMPANY, INC., Appellee

On Appeal from the 335th District Court

Washington County, Texas

Trial Court Cause No. 33783

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

Appellant=s motion for rehearing en banc is overruled as moot. The memorandum opinion issued on July 15, 2008 is withdrawn. This memorandum opinion is substituted in its place.

Appellant, Bluebonnet Petroleum, Inc., challenges a summary judgment in favor of appellee, Kolkhorst Petroleum Company, Inc., on the grounds that: (1) the trial court considered inadmissible summary judgment evidence, (2) Kolkhorst did not establish entitlement to summary judgment as a matter of law, and (3) there are genuine issues of material fact precluding summary judgment for Kolkhorst.  Bluebonnet also appeals from the denial of its motion for partial summary judgment on the grounds that: (1) Ray Robinson was an employee and officer of Bluebonnet and owed Bluebonnet a fiduciary duty, and (2) Kolkhorst knowingly acted in combination with Ray Robinson and received the benefits of Robinson=s breach of fiduciary duty to Bluebonnet by contracting with Circle G Truck Stop, Inc.  We affirm.            

Factual and Procedural Background

In August of 2001, Ray Robinson went to work with his sister, Kathy Smith, at Bluebonnet Petroleum.  Smith was president of Bluebonnet at the time.  Robinson began as an employee of the company and, according to him, requested to be re-categorized as a consultant one year later.  (This is one of the areas of contention between the parties, with Bluebonnet contending that Robinson was an employee and an officer of the corporation and Robinson contending he was merely an employee at the inception and nothing more than a consultant at the end.)  Throughout his time with the company, Robinson sought to increase Bluebonnet=s gasoline-sales volume by acquiring new accounts.  He never signedCor was asked to signCan employment agreement, a non-compete agreement, or any form of confidentiality agreement. 

In January of 2005, Kolkhorst, a competitor of Bluebonnet, created a new marketing position and offered it to Robinson.  On January 19, Robinson accepted the offer.  At that time, however, Robinson was in contact with a number of convenience stores on behalf of Bluebonnet, attempting to gain their fuel-supply business.  Circle G in Gonzales was one of the stores.  Although Robinson had already accepted the job offer from Kolkhorst, he still represented Bluebonnet on January 21 when he met with Circle G in a previously scheduled meeting to present a fuel agreement from Bluebonnet.  During that meeting, Robinson tendered the agreement, but also informed Circle G he would not be personally handling the account because he was leaving Bluebonnet to work for Kolkhorst.  Robinson told Cody Fry, a representative of Circle G, that Bluebonnet would do a good job.  Robinson did not discourage Circle G from executing the contract with Bluebonnet. Nevertheless, Circle G did not sign the contract with Bluebonnet at that time.

Later that same day, Robinson gave Bluebonnet notice that he was quitting, and offered to continue working for two weeks.  Bluebonnet declined the offer and their business affiliation ceased immediately.  Bluebonnet continued to pursue Circle G.  But after hearing subsequent presentations from both Bluebonnet and Kolkhorst, Circle G decided to contract with Kolkhorst.  Robinson was not involved in the subsequent presentations. 

Bluebonnet sued Robinson and Kolkhorst alleging: (1) theft of trade secrets and confidential information, (2) breach of fiduciary duties, (3) interference with prospective business relationships, and (4) civil conspiracy.  On August 25, 2006, the trial court granted Kolkhorst and Robinson summary judgment on Bluebonnet=s claims for theft of trade secrets and confidential information and civil conspiracy.  The trial court also granted summary judgment to Kolkhorst alone on Bluebonnet=s breach-of-fiduciary-duty and inducement-to-breach-of-fiduciary-duty claims.  The trial court simultaneously denied Bluebonnet=s motion for partial summary judgment, in which Bluebonnet asserted that it was entitled as a matter of law to findings that: (1) Robinson was a corporate officer of Bluebonnet and owed it a fiduciary duty to act in its best interest; (2) Robinson was an employee of Bluebonnet and owed it a duty to not use proprietary information acquired during his employment to Bluebonnet=s detriment; (3) Robinson breached one or more of his legal obligations to Bluebonnet; and (4) Kolkhorst participated in Robinson=s breach of one or more of his duties and benefitted therefrom. 

Bluebonnet filed a motion to reconsider, and on February 23, 2007, the trial court reaffirmed the summary judgment and supplemented its order of August 25, 2006, granting summary judgment to Kolkhorst on Bluebonnet=s last remaining claim against itCtortious interference with prospective business relationships.  On March 7, 2007, the trial court granted Kolkhorst=s motion for severance.  This appeal followed.

                                                       Standard of Review

Kolhorst moved for both a traditional summary judgment and a no-evidence summary judgment.  A trial court may grant traditional summary judgment if the motion and summary-judgment evidence show that, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing a summary judgment, we take as true all evidence favorable to the non-movant and we indulge every reasonable inference, and resolve any doubts, in the non-movant=s favor.  Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006). 

A trial court must grant a no‑evidence motion for summary judgment if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary-judgment evidence raising a genuine issue of material fact on those elements.  See Tex. R. Civ. P. 166a(i). In reviewing a no‑evidence motion for summary judgment, we view all of the summary-judgment evidence in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the movant. City of Keller v. Wilson, 168 S.W.3d 802, 824B25 (Tex. 2005).

When, as here, the trial court does not specify on which grounds the summary judgment is based, the appealing party must show that it is error to base it on any ground asserted in the motion.  Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1996); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).  Further, appellant must assign error to each independent ground asserted in the summary judgment or the summary judgment is affirmed as to that issue.  Star-Telegram, Inc., 915 S.W.2d at 473; De Laurentis v. United Servs. Auto. Ass=n, 162 S.W.3d 714, 726 (Tex. App.CHouston [14th Dist.] 2005, pet. denied); Sudan v. Sudan, 145 S.W.3d 280, 289B90 (Tex. App.CHouston [14th Dist.] 2004), rev=d on other grounds, 100 S.W.3d 291 (Tex. 2006).

To preserve an issue for appeal, the non-movant must expressly present to the trial court, by written answer or response, any issues defeating the movant=s entitlement to judgment.  McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993); Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.CHouston [14th Dist.] 2007, no pet.) (A[W]e may not consider grounds for reversal of a summary judgment that were not expressly presented to the trial court by written response to the motion.@); see also Rodriquez v. Gulf Coast & Builders Supply, Inc., No.  14-05-00930-CV, 2006 WL 3797722, at *2 (Tex. App.CHouston [14th Dist.] Dec. 28, 2006, no pet.)  (mem.  op.) (AAs a general rule, a complaint is preserved for appellate review only if the record establishes the complaint was made known to the trial court in a timely manner, and the trial court ruled on the complaint.@).  In a similar vein, an issue not supported by authority is waived. Trenholm v Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983); In re E.L.T., 93 S.W.3d 372, 375 (Tex. App.CHouston [14th Dist.] 2002, no pet.); Casteel-Diebolt v. Diebolt, 912 S.W.2d 302, 304B05 (Tex. App.CHouston [14th Dist.] 1995, no writ). When both parties move for summary judgment on the same issues and the trial court grants one motion and denies the other, the reviewing court considers the summary-judgment evidence presented by both sides, determines all questions presented, and renders the judgment the trial court should have rendered.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

Analysis

A.        Kolkhorst=s Motion for Summary Judgment

1.         Objections to Summary-Judgment Evidence

Bluebonnet contends that the trial court erred in granting summary judgment to Kolkhorst in part because it considered inadmissible summary-judgment evidence.  We disagree.   

The evidence offered in support of a motion for summary judgment must be admissible.  Tex. R. Civ. P. 166(a)(f).  We review a trial court=s decision to admit or exclude evidence under an abuse-of-discretion standard.  Nat=l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527B28 (Tex. 2000).  Under this standard, we may not overrule the trial court=s decision unless the trial court acted unreasonably or arbitrarily, and without reference to guiding rules or principles.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).  

In one of its objections, Bluebonnet claims that the following two sentences in Robinson=s affidavit are hearsay:   AI did not give copies of any of the materials in my files at Bluebonnet Petroleum to Kolkhorst Petroleum.  I was never requested to [do] this by Kolkhorst Petroleum.@  We disagree.  Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.  See Tex. R. Evid. 801(d).  The objected-to statements by Robinson are not hearsay and the trial court did not err in overruling the objection.  See id.  801(a), (d).

Aside from the two non-hearsay sentences in Robinson=s affidavit, we affirm Kolkhorst=s summary judgment on the strength of undisputed summary-judgment evidence to which Bluebonnet did not object.  There is no harm, therefore, even if the trial court=s rulings on Bluebonnet=s other objections constitute an abuse of discretion. Accordingly, we do not address the propriety of Bluebonnet=s remaining objections or the trial court=s failure to sustain them.

2.         The Merits

The trial court granted summary judgment on the four claims Bluebonnet asserted against Kolkhorst.  Bluebonnet contends that Kolkhorst did not show that it was entitled to summary judgment as a matter of law and that Bluebonnet set forth genuine issues of material fact on each claim.  We disagree. 

a.         Theft of trade secrets and confidential information

Bluebonnet=s first claim is for the theft of trade secrets and confidential information.  An employee may use general skills and knowledge obtained through previous employment to compete with the former employer.  Sharma v. Vinmar Intern., Ltd., 231 S.W.3d 405, 424 (Tex. App.CHouston [14th Dist.] 2007, pet.  dism=d).  However, the conduct of a former employee in competing with his former employer is not unlimited.  A former employee may not use confidential or proprietary information acquired during the employment relationship in a manner adverse to his former employer. T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 22 (Tex. App.CHouston [1st Dist.] 1998, no pet.).  Further, a former employee may not: A(1) appropriate the company=s trade secrets; (2) solicit his employer=s customers while still working for his employer; (3) solicit the departure of other employees while still working for his employer[;] or (4) carry away confidential information, such as customer lists.@  Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 512 (Tex. App.CHouston [14th Dist.] 2003, no pet.).

A trade secret is any formula, pattern, or compilation of data used in one=s business which presents an opportunity to obtain an advantage over a competitor who does not know or use it.  In re Bass, 113 S.W.3d 735, 739 (Tex. 2003).  To determine whether information shall be considered a trade secret, we analyze the following six factors:

(1) the extent to which the information is known outside the claimant=s business;

(2) the extent to which the information is known by employees and others involved in the claimant=s business;

(3) the extent of the measures taken by the claimant to guard the secrecy of the information;

(4) the value of the information to the claimant and to its competitors;

(5) the amount of effort or money expended by claimant in developing the information; and

(6) the ease or difficulty with which the information could be properly acquired or duplicated by others. 

Id.      

The burden of proving secrecy status falls on the party claiming secrecy status.  Stewart & Stevenson Servs., Inc. v. Serv-Tech., 879 S.W.2d 89, 99 (Tex. App.CHouston [14th Dist.] 1994, writ denied). There is no cause of action for misappropriation of information that is not either secret, or at least substantially secret.  SP Midtown, Ltd. v. Urban Storage, L.P., No. 14-07-00717-CV, 2008 WL 1991747, at *5 n. 5 (Tex. App._Houston [14th Dist.] May 8, 2008, pet. denied) (mem. op.) (citing Stewart & Stevenson Servs., Inc., 879 S.W.2d at 99).            

Bluebonnet claims that the evidence shows that Robinson possessed trade secrets and confidential information belonging to Bluebonnet and revealed them to Kolkhorst.  We disagree.  In his position at Bluebonnet, Robinson sought out potential customers and attempted to negotiate contracts for the benefit of Bluebonnet.  At the time Robinson left Bluebonnet, he was working on several potential accounts.  Although he gave the names of some potential customers to Kolkhorst, we see no evidence that he revealed additional information regarding these accounts, such as feasibility studies, notes, or preferences of the customer.  The issue, therefore, is whether the mere identity of the potential accounts with which Robinson was working when he left Bluebonnet is a trade secret, or even merely proprietary information accorded similar protection.  To decide whether the information qualifies as a trade secret we must consult the six factors listed above.

Consistent with the first factor, to qualify as a trade secret in Texas, the information must truly be Asecret.@  Zoecon Indus. v. American Stockman Tag, 713 F.2d 1174, 1179 (5th Cir. 1983).  A trade secret is information not Agenerally known by others in the same business nor readily ascertainable by an independent investigation.@  Id.  Kathy Smith specified in her affidavit that she and Robinson did not make customer information known to others outside their business, except to develop the potential customer as an account for Bluebonnet.  However, the summary-judgment evidence does not show that this information was not known by others outside of Bluebonnet from a source other than Smith or Robinson.  Although Kolkhorst admitted he was not aware that Circle G was in the market for a new fuel contract before Robinson mentioned Circle G, we see no evidence that this information was not common knowledge to others in the business or in the community.  By contrast, there was testimony from Circle G=s Cody Fry that Aeverybody@ in Gonzales knew about the project. Similarly, regarding the second factor, we see no evidence that this information was known only to Robinson and Smith and not other employees of Bluebonnet. 

To trigger the third factor, the Aowner of the secret must do something to protect himself.  He will lose his secret by its disclosure unless it is done in some manner by which he creates a duty and places it on the other party not to further disclose or use it in violation of that duty.@  Am. Precision Vibrator Co. v. Nat=l Air Vibrator Co., 764 S.W.2d 274, 276 (Tex. App.CHouston[1st Dist.] 1988, no writ.). Bluebonnet did not require Robinson to sign a non-compete agreement or a confidentiality agreement.  Smith claims that if she had known about Robinson=s intentions to work for Kolkhorst, she would not have allowed him to meet with Circle G to discuss finalizing the contract.  However, what she would have done is different from actually acting to protect the information.  Bluebonnet has produced no evidence of any steps taken to protect its potential-client information.

Concerning the fourth and fifth factors, although the information had a potentially high value to Bluebonnet and competitors if they were to obtain a contract with the prospective customer, the summary-judgment evidence does not show that Bluebonnet expended a substantial amount of effort or money in procuring the information.  Kathy Smith says in her affidavit that Robinson spent a lot of time developing the Circle G account.  However, we have no evidence that Robinson spent much time identifying potential accounts.

Finally, regarding the sixth factor, there is no evidence that the names of the people Robinson contacted on behalf of Bluebonnet were not readily ascertainable by the public or someone with Robinson=s general knowledge, experience, and skills.  For example, although Kolkhorst admits it had no knowledge of Circle G before Robinson, that is no indication that the name of this account was not readily ascertainable.  Again, according to Cody Fry, Aeverybody@ in Gonzales knew about the Circle G project. Thus, this information is not a trade secret.

Even if the information does not amount to a trade secret, Bluebonnet seems to contend that Kolkhorst used improper means to obtain its Aconfidential information@ through Robinson. However, the summary-judgment evidence does not support the argument that such information was either secret or at least substantially secret.  The information must not be publicly available or readily ascertainable by independent investigation.  See Sautter v. Comp Solutions Network, Inc., No.  14-98-00555-CV, 1998 WL 802481, at *4 (Tex. App.CHouston [14th Dist.] November 19, 1998, no pet.)  (not designated for publication); see also Allan J. Richardson & Assoc., Inc., 718 S.W.2d at 837 (citing SCM Corp. v. Triplett Co., 399 S.W.2d 583, 586 (Tex. Civ. App._San Antonio 1966, no writ)).  This court has previously held that when a customer list is not considered to be a trade secret and its contents are readily ascertainable from sources other than the employer=s records, the former employee may legitimately compete with his former employer for those customers. Sautter, 1998 WL 802481, at *4; see also Gaal v.  BASF Wyandotte Corp., 533 S.W.2d 152, 155 (Tex.  Civ.  App._Houston [14th Dist.] 1976, no writ). Bluebonnet has not met the burden to show that the data compilations in question constitute sufficiently secret information to qualify for protection.  See Stewart & Stevenson Servs., Inc., 879 S.W.2d at 99.

In its motion for rehearing, Bluebonnet asserts that our prior opinion in this case conflicts with this Court=s recent opinion in  SP Midtown, Ltd. v. Urban Storage, L.P., 2008 WL 1991747.  Specifically, Bluebonnet asserts that the standard for reviewing summary-judgment evidence applied by this Court in our prior opinion is inconsistent with the standard applied in SP Midtown.  In that case, we reversed a trial court=s no-evidence summary judgment on the basis that more than a scintilla of evidence was produced demonstrating that a competitor had misappropriated the plaintiff=s trade secrets in order to lure business away from the plaintiff.  Id.  at *5B6.  We disagree with Bluebonnet=s assertion that these opinions conflict.  A review of both cases demonstrates a disparity in the summary-judgment evidence provided to the trial court in each case.

SP Midtown involved a suit by the owner of a self-storage facility against a former employee and their new employer based on multiple theories of recovery, including misappropriation and/or misuse of trade secrets, tortious interference with prospective business relationships, and conspiracy.  Id.  at *3.  Specifically, Urban Storage alleged that, after accepting a position with SP Midtown but prior to resigning from Urban Storage, employee Welch had faxed daily rental logs of Urban Storage=s tenants to SP Midtown.   Included within this information was the following: (1) names of tenants; (2) dates of contracts for storage; (3) the terms and obligations of each contract; (4) the number and size of storage units leased; and (5) the contact persons for each tenant.  Id.  at *5.  Urban Storage further alleged that Welch and SP Midtown then used this information to directly solicit Urban Storage=s tenants whose leases were up for renewal.  Id. at 2B3.  A significant portion of our opinion in SP Midtown was devoted to an analysis of Urban Storage=s summary-judgment evidence offered to prove that the information conveyed to SP Midtown contained trade secrets.  Id.  at 5B6. 

Applying the six-factor analysis from In re Bass in that case, we noted that Urban Storage presented the following: (1) affidavit testimony that the tenant information conveyed was not known to any party outside of Urban Storage; (2) affidavit testimony that the tenant information was not accessible to the general public; (3) documentary evidence that Welch had been asked to sign a confidentiality agreement as a condition of employment with Urban Storage; and (4) documentary evidence and affidavit testimony that Urban Storage had made efforts to keep the information secret.  Id.  Because this evidence supported four of the six factors, we held that Urban Storage had produced more than a scintilla of evidence to create a genuine issue of material fact as to whether  the information conveyed was a trade secret.  Id.  at *6.  By contrast, in the present case, as previously discussed, the summary-judgment evidence supports, at best, only one element_that the information was valuable to Bluebonnet.  While Urban Storage successfully produced evidence sufficient to qualify as more than a scintilla, Bluebonnet has failed to do so.

Not only has Bluebonnet failed to meet its burden of proving that this information should be considered a trade secret or confidential information, it has also not proven that Kolkhorst acted improperly in obtaining the information.  Kolkhorst=s chief executive testified that: he did not ask Robinson about the identity of the accounts he was working on at Bluebonnet; he did not ask for material or files from Bluebonnet; and, he never asked or encouraged Robinson to solicit the customers of Bluebonnet for Kolkhorst.  Further, the summary-judgment evidence presents no basis for concluding that Robinson shared any information with Kolkhorst beyond the names of potential accounts.  Robinson testified in his deposition that he did not deliver to Kolkhorst any materials, studies, reports, or other information regarding Bluebonnet=s accounts.  Rather, he returned such files to Bluebonnet upon the termination of their business relationship. Although Kathy Smith=s affidavit refers to phone calls made between Robinson and Kolkhorst on the day of the meeting with Circle G, we see no evidence about the content of the phone calls or that such phone calls were improper behavior on the part of Kolkhorst.  Therefore, the trial court did not err in granting summary judgment in favor of Kolkhorst for the theft-of-trade-secrets-and-confidential-information claim.        

b.         Inducement to breach fiduciary duty

Regarding the inducement-to-breach-fiduciary-duty claim, Bluebonnet correctly states that Awhere a third party knowingly participates in the breach of duty of a fiduciary, such third party becomes a joint tortfeasor with the fiduciary and is liable as such.@  Baty v. ProTech Ins. Agency, 63 S.W.3d 841, 864 (Tex. App._Houston [14th Dist.] 2001, pet. denied) (citations omitted). However, Baty also provides that A[t]his rule . . . does not apply where the third party is doing that which he has a legal right to do.@  Id.

The summary-judgment evidence does not show that Kolkhorst was doing anything other than what it was legally entitled to do.  Kolkhorst had a right to place phone calls to and receive phone calls from Robinson.  Kolkhorst had a right to contact Circle G, in response to Circle G=s request.  Kolkhorst subsequently made a presentation to Circle G, also at Circle G=s request.  Robinson was not involved in this presentation. Bluebonnet also made a presentation to Circle G after Robinson=s departure, but Circle G chose to contract with Kolkhorst.  Even if Robinson owed and breached a fiduciary duty to Bluebonnet, Bluebonnet has presented no evidence that Kolkhorst encouraged, induced, or participated in any such breach.

In its motion for rehearing, Bluebonnet again asserts that this Court inconsistently applied the relevant standard on this issue in our prior opinion.  In SP Midtown, this Court held that evidence showing SP Midtown had faxed vacancy reports from its storage facilities to Welch_while she was still employed by Urban Storage, and about the same time that Welch was faxing trade secrets to Midtown_could create a reasonable inference that Midtown was attempting to elicit Urban Storage=s trade secrets.  Id.  at *6. Bluebonnet=s reliance upon SP Midtown in this regard is misplaced for two reasons.  First, the relevant summary-judgment evidence in SP Midtown revealed the content of the communications by both parties to the alleged misappropriation.  Summary-judgment evidence demonstrated that SP Midtown was faxing vacancy reports to Welch, who in turn faxed daily rental logs containing detailed tenant information to SP Midtown.  Id.  at *6.  Based on this evidence, we held that it was a reasonable inference that SP Midtown was eliciting Welch to send them customer information.  Id.  Further evidence demonstrated that SP Midtown=s vacancy reports could help Welch determine Awhether SP Midtown could accommodate the needs of [Urban Storage=s] current and prospective customers,@ as well as allowing SP Midtown to directly market to Urban Storage=s tenants.  Id.  

In the present case, Bluebonnet presented evidence that Robinson had knowledge about Circle G; that Robinson told Kolkhorst about Circle G=s interest in Kolkhorst; that Robinson and Kolkhorst exchanged phone calls; and, that Kolhorst made a presentation to Circle G which resulted in a contract for Circle G=s business.  Any possible inference that Kolkhorst elicited Robinson for information about Circle G is overcome by the undisputed fact that Circle G specifically requested contact by, and a proposal from, Kolkhorst.  Second, and perhaps more importantly, any such inducement of Robinson would be actionable only if related to the transfer of trade secrets or confidential information, which, as stated previously, is not supported by the evidence in this case.

The trial court did not err in granting summary judgment on this issue for Kolkhorst.

c.         Tortious interference with prospective business relations

This court has previously outlined the apparent requirements to succeed on a claim for tortious interference with a prospective business relationship:

(1) a reasonable probability that the plaintiff would have entered into a business relationship;

(2) an independently tortious or unlawful act by the defendant that prevented the relationship from occurring;

(3) the defendant did such act with a conscious desire to prevent the relationship from occurring or the defendant knew the interference was certain or substantially certain to occur as a result of the conduct; and

(4) the plaintiff suffered actual harm or damages as a result of the defendant=s interference. 

Baty, 63 S.W.3d 841 at 860.

To satisfy the second requirement, Bluebonnet must prove that it was harmed by Kolkhorst and that Kolkhorst=s conduct Awas either independently tortious or unlawful.@  Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 713 (Tex. 2001).  Bluebonnet alleges that Kolkhorst hired Robinson away from Bluebonnet to deliver customers to Kolkhorst, and that Kolkhorst acted Ain cooperation with@ and Aconspired with@ Robinson to participate in his breach of fiduciary duty.  Specifically, Bluebonnet claims that AKolkhorst=s illegal or unethical or immoral use of a corporate fiduciary to convert confidential business information of a competitor that it would not otherwise have possessed and its own actions in acquiring the customer satisfy the independently tortious element.@ 

There is no evidence that Kolkhorst acted illegally or that the behavior of Kolkhorst qualifies as independently tortious.  We see no evidence that Kolkhorst solicited confidential information from Robinson, or encouraged Robinson to solicit customers of Bluebonnet for Kolkhorst.  Although Robinson told Circle G that he would be unable to handle the account should they sign a contract with Bluebonnet, no evidence is presented that such action was tortious or that Kolkhorst encouraged or solicited it.  As discussed above, there is no evidence that Robinson shared confidential information such as feasibility studies, personal notes and drawings, or any other information from his Bluebonnet files with Kolkhorst.  Rather, Robinson asserts, and Bluebonnet does not contest, that he returned such documents to Bluebonnet upon termination of his employment. 

Bluebonnet also alleges that Kolkhorst acted with Robinson to usurp a corporate business opportunity.  But both Kolkhorst and Bluebonnet made subsequent presentations to Circle G, without any involvement by Robinson.  Following those presentations, Circle G chose to contract with Kolkhorst.  The business opportunity was not usurped. Instead, each company was given a fair opportunity to persuade Circle G to contract with it; Kolkhorst just happens to have prevailed. 

Bluebonnet makes no other accusations of tortious or unlawful activity by Kolkhorst.  Therefore, Bluebonnet has not presented evidence of an essential element necessary to support the claim.  The trial court did not err in granting summary judgment for Kolkhorst on the claim for tortious interference with prospective contract relations.  See Tex. R.  Civ. P.  166a(i).

d.         Civil conspiracy

To establish civil conspiracy, Bluebonnet must show that Robinson and Kolkhorst had a meeting of the minds on an object or course of action, and that one of the members committed an unlawful, overt act in furtherance of the object or course of action.  Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005).  As evidence of the alleged conspiracy, Bluebonnet points to phone calls between Robinson and Kolkhorst and the fact that Kolkhorst eventually signed a contract with Circle G.  But this amounts to no evidence of either a meeting of the minds or of any unlawful act by either Robinson or Kolkhorst.  Although proof of a civil conspiracy may be, and usually must be, made by circumstantial evidence, vital facts may not be proved by unreasonable inferences from other facts and circumstances. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968); SP Midtown, Ltd., 2008 WL 1991747, at *9.  In its motion for rehearing Bluebonnet argues that the evidence of phone calls between Robinson and Kolkhorst qualifies as sufficient circumstantial evidence to establish a civil conspiracy.  But Bluebonet offers no evidence of the content of these phone calls.  Consequently, the application of such evidence relies upon speculation rather than reasonable inference.  The trial court did not err in granting summary judgment on Bluebonnet=s civil conspiracy claim.

In conclusion, summary judgment was proper as to Bluebonnet=s claims against Kolkhorst for theft of trade secrets or confidential information, inducement to breach of fiduciary duty, tortious interference with prospective business relations, and conspiracy. 

B.        Bluebonnet=s Motion for Partial Summary Judgment

In its cross-motion for partial summary judgment, Bluebonnet contended that as a matter of law (1) Ray Robinson was an employee and officer of Bluebonnet and owed Bluebonnet a fiduciary duty, and (2) Kolkhorst knowingly acted in combination with Ray Robinson and received the benefits of his breach of fiduciary duty to Bluebonnet by contracting with Circle G. 

1. Robinson=s Status as an Employee and Officer

Bluebonnet alleges that the trial court erred in denying its motion for partial summary judgment because the evidence established as a matter of law that Robinson was an employee and officer of Bluebonnet.  Although Bluebonnet presented summary-judgment evidence that Robinson was a corporate officer, Robinson and Kolkhorst submitted conflicting evidence sufficient to raise a fact issue.  In his affidavit, Robinson attests that he never served or agreed to serve as a corporate officer of Bluebonnet.  Further, he asserts that Bluebonnet=s bylaws contain no reference to a Avice president of marketing,@ the position Bluebonnet contends he held.  Robinson also alleges that he never attended nor was invited to attend any shareholders= or directors= meetings.  Robinson=s business cards refer to him as AMarketing Manager@ and not as a vice president. Pay stubs referring to his compensation as Aconsult@ support Robinson=s contention that he was a consultant, and at least one tax filing submitted by Bluebonnet does not list Robinson as an officer.  Taking as true, as we must,  all evidence favorable to Kolkhorst, a demonstrated question of fact remains as to Robinson=s status as an employee and officer of Bluebonnet.  Therefore, we conclude that this evidence is sufficient to preclude summary judgment.  See Sudan, 199 S.W.3d at 292. 

2. Kolkhorst=s Benefit from Robinson=s Breach of Fiduciary Duty

Regarding the second issue, Bluebonnet alleges that the trial court erred in denying its motion for partial summary judgment because Bluebonnet established as a matter of law that, by contracting with Circle G, Kolkhorst knowingly acted in combination with Robinson and received the benefit of his fiduciary breach.  We disagree.  As discussed previously, there was no evidence that the information Kolkhorst obtained from Robinson qualified as a trade secret; that Kolkhorst induced Robinson to breach a fiduciary duty; that Kolkhorst tortiously interfered with Bluebonnet=s prospective contract relations; or that Kolkhorst conspired with Robinson. Stated more simply, because Bluebonnet has not established any breach of fiduciary duty as a matter of law, it cannot demonstrate that Kolkhorst has enjoyed the benefits of such a breach as a matter of law.  Because Bluebonnet has failed to establish its claim as a matter of law, the trial court properly denied Bluebonnet=s motion for partial summary judgment.  See Tex. R. Civ. P. 166a(c).

For the foregoing reasons, we affirm the judgment of the trial court.

/s/         Jeff Brown

Justice

Judgment rendered and Substitute Memorandum Opinion on Rehearing filed October 9, 2008.

Panel consists of Chief Justice Hedges, and Justices Brown and Boyce.