Elite Auto Body LLC, D/B/A Precision Auto Body Rey R. Hernandez Yesica Diaz And David Damian v. Autocraft Body Works, Inc., Now Known as Wasson Road Ventures, Inc. D/B/A Autocraft Bodywerks ( 2015 )

ACCEPTED
03-15-00064-CV
4967054
THIRD COURT OF APPEALS
AUSTIN, TEXAS
4/21/2015 11:11:07 AM
JEFFREY D. KYLE
NO. 03-15-00064-CV CLERK
FILED IN
IN THE COURT OF APPEALS FOR THE3rd COURT OF APPEALS
THIRD DISTRICT OF TEXAS AUSTIN, TEXAS
AT AUSTIN, TEXAS 4/21/2015 11:11:07 AM
JEFFREY D. KYLE
Clerk
ELITE AUTO BODY LLC d/b/a PRECISION AUTO BODY, REY R.
HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN,
Appellants
v.
AUTOCRAFT BODYWERKS, INC.
Appellee
ON APPEAL FROM THE 345th JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. D-1-GN-14-004535
HONORABLE TIM SULAK, PRESIDING JUDGE
BRIEF OF APPELLEE
James G. Ruiz
State Bar No. 17385860
jruiz@winstead.com ·
WINSTEAD PC
401 Congress A venue, Suite 2100
Austin, Texas 78701
(512) 370-2800
(512) 370-2850 (facsimile)
ATTORNEYS FOR .APPELLEE
ORAL ARGUMENT REQUESTED
1
IDENTITIES OF PARTIES AND COUNSEL
The following is a complete list of the names of all parties affected by the
trial court's Order Denying Defendants' Motion to Dismiss Pursuant to Chapter 27
of the Texas Civil Practice and Remedies Code and their trial and appellate
counsel:
APPELLANTS:
Elite Auto Body, LLC d/b/a Precision Auto Body, Rey R. Hernandez, Yesica Diaz,
and David Damian
TRIAL & APPELLATE COUNSEL:
Rick Harrison
Sam King
Dale L. Roberts
FRITZ, BYRNE, HEAD & HARRISON, PLLC
98 San Jacinto Blvd., Suite 2000
Austin, Texas 78701
(512) 476-2020
(512) 477-5267-Fax
APPELLEE:
Autocraft Bodywerks, Inc.
TRIAL & APPELLATE COUNSEL:
James G. Ruiz
Jacylyn G. Austein
WINSTEAD PC
401 Congress A venue, Suite 2100
Austin, Texas 78701
(512) 370-2800
(512) 370-2850 -Fax
11
STATEMENT REQUESTING ORAL ARGUMENT
Appellee herein requests the Court grant oral argument on the appeal of this matter.
111
STATEMENT OF THE CASE
Nature of the Case: Autocraft Bodywerks, Inc. brought suit against Appellants
for misappropriation of trade secrets, violation of Chapter
134A of the Texas Civil Practice & Remedies Code, unfair
competition, breach of fiduciary duty, and civil conspiracy
arising out of David Damian's wrongful disclosure and use
of Autocraft's confidential business and trade secret
information after the termination of employment to provide
his new employer, Precision Auto, an unfair advantage in
the marketplace. In the present action, Autocraft seeks to
enjoin any future improper disclosure and use by Appellants
of its confidential business information and trade secrets.
Appellants sought to dismiss the suit under§ 27.003 of the
Texas Civil Practice & Remedies Code asserting that
Autocraft' s action attempts to interfere in their right to free
speech and free association. The trial court denied
Appellants' motion to dismiss.
Trial Court: The Honorable Tim Sulak, Presiding Judge for the 345th
Judicial District Court of Travis County, Texas.
Trial Court
Disposition: The trial court entered its Order Denying Defendants'
Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil
Practice and Remedies Code.
Parties in the
Court ofAppeals: Appellants- Elite Auto Body, LLC d/b/a Precision Auto
Body, Rey R. Hernandez, Yesica Diaz, and David Damian
Appellee- Autocraft Bodywerks, Inc.
IV
TABLE OF CONTENTS
IDENTITIES OF PARTIES AND COUNSEL ........................................................ II
STATEMENT REQUESTING ORAL ARGUMENT ........................................... .III
STATEMENT OF THE CASE .............................................................................. IV
BRIEF OF APPELLEE .....................................................................-........................ 1
ISSUES PRESENTED .............................................................................................. 2
STATEMENT OF FACTS ........................................................................................ 3
SUMMARY OF ARGUMENT ................................................................................. 5
ARGUMENT ........................................................................................-..................... 7
I. STANDARD OF REVIEW ............................................................................. 7
II. TRIAL COURT CORRECTLY DENIED APPELLANTS' MOTION
TO DISMISS UNDER CHAPTER 27 OF THE TEXAS PRACTICE &
REMEDIES CODE BECAUSE APPELLANTS FAILED TO MEET
THEIR BURDEN OF PROOF ........................................................................ 8
A. AUTOCRAFT'S MISAPPROPRIATION OF TRADE
SECRETS, UNFAIR COMPETITION, AND BREACH OF
FIDUCIARY DUTY CLAIMS DO NOT IMPLICATE THE
TCPA ..................................................................................................... 8
1. PRIVATE SPEECH NOT PROTECTED UNDER THE TCPA ........ 10
2. THE TCP A DOES NOT PROTECT THE DISCLOSURE OF
TRADE SECRETS ............................................................................. 13
B. EVEN IF THE TCPA WERE OTHERWISE APPLICABLE
TO AUTOCRAFT'S TORT CLAIMS, THE COMMERCIAL
SPEECH EXCEPTION IN §27 .01 O(b) PREVENTS DISMISSAL ... 17
III. EVEN ASSUMING THE TCPA APPLIES TO APPELLEE'S CLAIMS,
AUTOCRAFT MET ITS BURDEN OF PROOF TO PREVENT
DISMISSAL OF ITS CLAIMS ..................................................................... 28
v
PRAYER .................................................................................................................. 25
CERTIFICATE OF SERVICE ................................................................................ 26
CERTIFICATE OF COMPLIANCE ....................................................................... 27
VI
TABLE OF AUTHORITIES
Page(s)
Am. Motors Corp. v. Huffstutler, 575 N.E.2d 116 (Ohio 1991) ................................... 14
Anderson Chern. Co. v. Green, 66 S.W.3d 434 (Tex. App.-Amarillo
2001, no pet.) ........................................................................................................... 16, 22, 23
BBB of Metro Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345
(Tex. App.-Houston [1st Dist.] 2013, pet. denied) ................................................... I2
Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464 (Tex.
App.-Texarkana 1998, pet. denied) ............................................................................. 24
Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210 (Tex. App.-Houston
[1st Dist.] 2014, no pet.) ............................................................................................... 8, 12
Cherne Indus. Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81
(Minn. 1979) .................................................................................................................. 14, 15
Cohen v. Cowles Media Co., 501 U.S. 663 (1991) .......................................................... 14
Combined Law Enforcement Ass 'n of Tex. v. Sheffield, No. 03-13-00105-
CV, 2014 WL 411672 (Tex. App.-Austin Jan. 31, 2014, pet. filed) .................. 12
Computer Assoc. Intl., Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996) ..................... 22
Coward v. Gateway Nat'! Bank, 525 S.W.2d 857 (Tex. 1975) ..................................... 19
Dodson v. Watson, 220 S.W. 771 (Tex. 1920) .................................................................. 19
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
105 S. Ct. 2939, 86 L. Ed. 2d 593 ( 1985) ..................................................................... I o
Garth v. Staktek Corp., 876 S.W.2d 545 (Tex. App.-Austin 1994, writ
dism'd w.o.j.) ....................................................................................................................... 14
Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011) ................................................ 19
Hyde Corp. v. Huffines, 158 Tex. 566,314 S.W.2d 763 (Tex. 1958) ......................... 21
In reAssociated Indep. Marketers Inc. ofAm., Case No. 92-4941,
1993 U.S. App. LEXIS 41111 (5th Cir. May 10, 1993) ........................................... 21
Vll
James v. Calkins, 446 S.W.3d 135 (Tex. App.-Houston [1st Dist.] 2014,
pet filed.) ............................................................................................................................... 19
Jardin v. Markland, 431 S.W.3d 765 (Tex. App.-Houston [141h Dist.]
20 14, no pet.) ....................................................................................................... 8, 10, 11 , 12
K&G Oil Tool & Serv. Co. v. G&C Fishing Tool Serv., 158 Tex. 594,
314 S.W.2d 782 (Tex. 1958) ............................................................................................ 22
KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.-Houston
[1st Dist.] 2013, pet. denied) ............................................................................................... 8
Lammons Gasket Co. v. Flexitallic LP, 9 F. Supp. 3d 709, 712 (S.D. Tex.
2014) ...................................................................................................................................... 20
Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011 ) ............................................................. 8
Rivers v. Johnson Custodial Home, Inc., No. A-14-CA-484-SS, 2014
WL 4199540 (W.D.Tex. Aug. 22, 2014) ...................................................................... 11
Prudential Ins. Co. v. Krayer, 366 S.W.2d 779 (Tex. 1963) ......................................... 19
Rodriguez v. Printone Color Corp., 982 S.W.2d 69 (Tex. App.-Houston
[1st Dist.] 1998, pet. denied) ............................................................................................. 19
Rodriguez v. Wal-Mart Stores, Inc., 52 S.W.3d 814 (Tex. App.-San
Antonio 2001), rev'd in part on other grounds, 92 S.W.3d 502 (Tex.
2002) .............................................. ;....................................................................................... 24
Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745 (Tex. App.-San
Antonio 1995, writ denied) .............................................................................................. 19
Russell v. Russell, 865 S.W.2d 929 (Tex. 1993) ............................................................... 19
Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App.-Houston [1st Dist.]
2014, pet. filed) ............................................................................................................. 18, 19
Southwestern Energy Prod. Co. v. Berry-Helfand, 411 S.W.3d 581 (Tex.
App.-Texarkana 2013, pet. filed) ........................................................................... 20, 21
Trilogy Software v. Callidus Software, Inc., 143 S.W.3d 452 (Tex.
App.-Austin 2004, pet. denied) .................................................................................... 20
United States v. Morison, 844 F.2d 1057 (4th Cir. 1988) ................................................ 15
Vlll
United States Sporting Prods. V Johnny Stewart Game Calls,
865 S.W.2d 214 (Tex. App.-Waco 1993, writ denied.) ......................................... 21
Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App.-Texarkana
2013, pet. filed) ................................................................................................... 7, 10, 11, 12
STATUTES
Chapter 27 Of The Texas Civil Practice & Remedies Code ................................... passim
TEX. Crv. PRAC. & REM. CODE§ 27.001(2) ............................................................. 9, 11, 12
TEX. Crv. PRAC. & REM. CODE§ 27.001(3) ......................................................................... 9
TEX. Crv. PRAC. & REM CODE§§ 27.001-.011 ................................................................... 5
TEX. Crv. PRAC. & REM CODE§ 27.002 ............................................................................ 5, 9
TEX. Crv. PRAC. & REM CODE.§ 27.003 ........................................................................... 6, 7
TEX. Crv. PRAC. & REM. CODE§ 27.003(a) ......................................................................... 7
TEX. Crv. PRAC. & REM. CODE§ 27.005(b) ............................................................... 7, 8, 10
TEX. Crv. PRAC. & REM CODE§§ 27.005(b) and (c) .......................................................... 8
TEX. Crv. PRAC. & REM. CODE§ 27.006 ............................................................................. 18
TEX. Crv. PRAC. &REM. CODE§ 27.010(b) ............................................................. 6, 17,18
TEX. Crv. PRAC. & REM. CODE§ 27.011(b) ......................................................................... 9
TEX. Crv. PRAC. & REM. CODE§ 51.014(b) ....................................................................... 24
TEX. Crv. PRAC. &REM. CODE CHAPTER 134A ..................................................... 4, 6
TEX. Crv. PRAC. & REM. CODE§ 134A.002, ...................................................................... 20
TEX. Crv. PRAC. & REM. CODE§ 134A.003, ...................................................................... 15
TEX. Gov'T CODE§ 311.011 (b) ............................................................................................ 19
Texas Uniform Trade Secrets Act,§§ 134A.001-.008, TEX. Crv. PRAC. &
REM. CODE ............................................................................................................................ 15
lX
NO. 03-15-00064-CV
IN THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS
AT AUSTIN, TEXAS
ELITE AUTO BODY LLC d/b/a PRECISION AUTO BODY, REY R.
HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN,
Appellants
v.
AUTOCRAFT BODYWERKS, INC.
Appellee
ON APPEAL FROM THE 345TH JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. D-1-GN-14-004535
HONORABLE TIM SULAK, PRESIDING JUDGE
BRIEF OF APPELLEE
Autocraft Bodywerks, Inc. ("Autocraft"), Appellee, submits its Brief of
Appellee in response to the Appellants' Brief filed by Elite Auto Body, LLC d/b/a
Precision Auto Body, Rey R. Hernandez, Y esica Diaz, and David Damian.
1
ISSUES PRESENTED
1. WHETHER THE TRIAL COURT'S DENIAL OF DEFENDANTS'
MOTION TO DISMISS UNDER CHAPTER 27 OF THE TEXAS CIVIL
PRACTICE & REMEDIES CODE WAS APPROPRIATE BECAUSE
APPELLANTS' FAILED TO MEET THEIR BURDEN OF PROOF.
2. ALTERNATIVELY, EVEN ASSUMING THE TEXAS CITIZENS
PARTICIPATION ACT APPLIES TO APPELLEE'S CLAIMS,
WHETHER AUTOCRAFT MET ITS BURDEN OF PROOF TO
PREVENT DISMISSAL OF ITS CLAIMS.
2
STATEMENT OF FACTS
Autocraft is dissatisfied with the Statement of Facts set out in Appellant's
Brief and submits the following Statement of Facts supported by the record in this
appeal.
Autocraft is a full service high-end collision restoration auto repair shop
established in 1984. C.R. 41. Over the span of three decades, its founder, John
Borek ("Borek"), spent substantial time and money developing specific business
practices and forms, and creating a unique compilation of technical service
bulletins and other information which have provided Autocraft with an advantage
over its competitors who do not know or use Autocraft's trade secrets and
confidential and proprietary information. C.R. 41-42.
Rey Hernandez ("Hernandez") worked at Autocraft from the time he arrived
1n Austin in March of 2008 until March of 2009. C.R. 5, 26. Upon leaving
Autocraft, Hernandez started Precision Auto Body repair shop ("Precision Auto"),
a competing repair shop. C.R. 26. Since Hernandez started Precision Auto a few
employees have left Autocraft for Precision Auto. C.R. 42. Autocraft and Precision
Auto competed in the marketplace for over five years without incident. C.R.42.
From 2008 to March 2014, David Damian ("Damian") worked as a
production manager at Autocraft. C.R. 29. While Damian worked at Autocraft he
had access to personnel information on employees, including salary information,
Autocraft's financial information, including profit and loss statements, and
3
Autocraft' s proprietary compilation of technical service bulletins and client forms,
which in the hands of competitor provides it with an unfair competitive advantage.
C.R. 6, 43.
Joyce Garcia ("Garcia"), who served as Autocraft's office manager for nine
years, also had access to Auto craft's confidential business information and trade
secrets while she was employed at Autocraft. C.R. 5-6, 43. Both Damian and
Garcia held positions of trust and confidence with Autocraft during their
employment. C.R. 6.
After Damain and Garcia left Autocraft in 2014 to join Precision Auto,
Autocraft learned Precision Auto was using its proprietary compilation of technical
service bulletins, and that a copy of its proprietary compilation had been taken to
Precision Auto rather than Precision Auto spending the time and money
subscribing to the various publications and searching through the tens of thousands
of technical service bulletins issued over the years to create its own compilation.
C.R. 42. Autocraft did not give Damian or Garcia, or any other Autocraft
employee, consent to take any proprietary work product, confidential information
or trade secret with them after they left Autocraft. C.R. 42.
On October 29, 2014, Auto craft filed suit against Precision Auto, Y esica
Diaz, Hernandez and Damian asserting claims for misappropriation of trade secrets
and violations of Chapter 134A of the Texas Civil Practice & Remedies Code,
unfair competition, breach of fiduciary duty and civil conspiracy arising out of the
4
improper use of Autocraft's confidential business information and trade secrets.
C.R. 3-11. Autocraft contends Damain and/or Garcia provided most, if not all, of
the confidential business information to Precision Auto. C.R. 6. In addition to
damages arising from the misuse of the confidential business information and trade
secrets, Autocraft seeks injunctive relief to prevent any continued improper use of
such information. C.R. 6.
On December 22, 2014, Appellants filed their Motion to Dismiss Pursuant to
Chapter 27 of the Texas Civil Practice and Remedies Code claiming that
Autocraft's suit relates to the exercise of their rights of association or free speech.
C.R. 18-31.
The trial court denied Appellants' motion to dismiss on January 23, 2015.
C.R. 49. Five days later, Appellants filed their Notice of Appeal. C.R. 50-51.
SUMMARY OF ARGUMENT
The Texas Citizens Participation Act ("TCPA"), TEX. CIV. PRAC. & REM
CODE §§ 27.001-.011, is an "anti-SLAPP" law. "SLAPP" is an acronym for
"Strategic Lawsuits Against Public Participation." The TCPA's purpose is to
"encourage and safeguard the constitutional rights of persons to petition, speak
freely, and otherwise participate in government to maximum extent permitted by
law and, at the same time, protect the rights of a person to file meritorious lawsuits
for demonstrable injury." TEX. Crv. PRAC. & REM CODE § 27.002. To achieve this
5
goal, the TCP A allows a Defendant to seek dismissal of certain claims in a lawsuit
at an early stage. TEX. CIV. PRAC. & REM CODE. § 27.003.
Autocraft's lawsuit against Appellants, including its claims for
misappropriation of trade secrets, violations of Chapter 134A of the Texas Civil
Practices & Remedies Code, unfair competition, and breach of fiduciary duty as
well as a claim for civil conspiracy, arises out of Appellants' improper use of
Autocraft's trade secret and confidential business information to unfairly compete
in the marketplace, and has nothing to do with Appellants' rights of free speech
and rights of association. Autocraft seeks to prevent any further improper
disclosure or use of its trade secrets and confidential business information, not
Appellants' ability to join together to compete fairly in the marketplace.
Further, the TCP A does not apply to private communications. In the present
case, any communication at issue would involve a private communication among
the Precision Auto employees concerning Autocraft's trade secret and confidential
business information. Disclosure of trade secret information is not protected free
speech. The TCP A does not protect theft of trade secrets and unfair competition.
Indeed, the TCP A expressly does not apply to a legal action brought against a
person primarily engaged in the business of selling services, such as auto body
repair services, if the statement or conduct arises out of the sale of services or a
commercial transaction in which the intended audience is an actual or potential
buyer or customer. TEX. CIV. PRAC. & REM. CODE§ 27.010(b). It is undisputed that
6
Appellants are primarily engaged in the business of selling auto repair services and
the wrongful conduct complained of in this suit arises out of Appellants' unfair
competition in the marketplace with respect to the sale of those services.
Appellants failed to meet their initial burden of proof to show by a
preponderance of the evidence that the present action is based on, relates to, or is in
response to their exercise of the right to free speech or the right of association.
Accordingly, the trial court properly denied Appellants' motion to dismiss under
Chapter 27 of the Texas Civil Practice & Remedies Code.
ARGUMENT
I. STANDARD OF REVIEW
Section 27.003 of the TCPA provides that a party may file a motion to
dismiss if a legal action "is based on, relates to, or is in response to [that] party's
exercise of the right of free speech, right to petition, or right of association." TEX.
CIV. PRAC. & REM. CODE § 27.003(a). Section 27.005(b) provides that a court
"shall dismiss a legal action against the moving party if the moving party shows by
a preponderance of the evidence" that the action is based on, relates to, or is in
response to the party's exercise of free speech or the right of association. TEX. Crv.
PRAC. & REM. CODE § 27 .005(b).
Appellants bore the initial burden of proof of demonstrating the TCPA's
applicability by a preponderance of the evidence. See Whisenhunt v. Lippincott,
416 S.W.3d 689, 695 (Tex. App.-Texarkana 2013, pet. filed). If Appellants could
7
establish the required elements under § 27.005(b), then the burden would shift to
Autocraft to avoid dismissal by meeting the requirements under§ 27.005(c) that it
establish by clear and specific evidence a prima facie case for each essential
element of its claims. TEX. Crv. PRAC. & REM CODE§§ 27.005(b) and (c); see also
Jardin v. Markland, 431 S.W.3d 765, 770 (Tex. App.-Houston [14th Dist.] 2014,
no pet.).
A trial court's determination that a moving party showed by a preponderance
of evidence that the TCPA applies is subject to de novo review. Cheniere Energy,
Inc. v. Lotfi, 449 S.W.3d 210,213 (Tex. App.-Houston [1st Dist.] 2014, no pet.);
KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688-89 (Tex. App.-Houston
[1st Dist.] 2013, pet. denied). This case will tum on the Court's construction of the
TCPA, an issue of law that likewise implicates de novo review of the trial court's
decision. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011).
II. TRIAL COURT CORRECTLY DENIED APPELLANTS' MOTION TO
DISMISS UNDER CHAPTER 27 OF THE TEXAS PRACTICE &
REMEDIES CODE BECAUSE APPELLANTS FAILED TO MEET
THEIR BURDEN OF PROOF.
A. AUTOCRAFT'S MISAPPROPRIATION· OF TRADE SECRETS,
UNFAIR COMPETITION, AND BREACH OF FIDUCIARY DUTY
CLAIMS DO NOT IMPLICATE THE TCPA.
The TCP A does not apply to this case. The TCPA was enacted as Anti-
SLAPP legislation, in order to curtail the filing of "frivolous lawsuits aimed at
silencing" citizens who are participating in the free exchange of ideas. See Senate
8
Comm. on State Affairs, Bill Analysis, Tex. H. B. 2973, 82nd Leg., RS (20 11 ). Its
purpose is to "encourage and safeguard the constitutional rights of persons to
petition, speak freely, associate freely, and otherwise participate in government to
the maximum extent permitted by law and, at the same time, protect the rights of a
person to file meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. &
REM. CODE § 27.002. The provisions of the TCPA shall be "construed liberally to
effectuate its purpose." TEX. CIV. PRAC. & REM. CODE§ 27.01l(b).
The TCP A attempts to strike a balance between encouraging and
safeguarding the right of free speech while also providing an avenue for recovery
for those who file meritorious lawsuits. See TEX. CIV. PRAC. & REM. CODE
§ 27.002. Appellants argue that the present suit infringes on their rights of free
speech and rights of association. Appellants' Brief at p. 10. In fact, Autocraft's
suit seeks to protect and preserve its trade secret and confidential business
information and is no threat to Appellants' rights to free speech or rights of
association. For such reason, the statute is inapplicable to this case.
Under TEX. CIV. PRAC. & REM. CODE § 27.001(3), the "'[e]xercise of the
right of free speech' means a communication made in connection with a matter of
public concern." Under TEX. CIV. PRAC. & REM. CODE § 27.001(2), the
"'[e]xercise of the right of association' means a communication between
individuals who join together to collectively express, promote, pursue, or defend
common interests." Autocraft is not trying to foreclose either of these rights.
9
Appellants failed establish "by a preponderance of the evidence that the legal
action is based on, relates to, or is in response to the party's exercise of: ( 1) the
right of free speech; (2) the right of association; or (3) the right to petition." TEX.
Crv. PRAC. &REM. CODE§ 27.005(b).
1. PRIVATE SPEECH NOT PROTECTED UNDER THE TCP A
"Not all speech is of equal First Amendment importance. It is speech on
'matters of public concern' that is at the heart of the First Amendment protection."
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59, 105
S. Ct. 2939, 86 L. Ed. 2d 593 (1985). Private communications are not protected by
the TCPA. Whisenhunt, 416 S.W.3d at 700.
The Whisenhunt court held that the TCPA did not apply to a motion to
dismiss defamation claims based on internal emails that had never been published
in a newspaper, social media, or other public forum. Whisenhunt, 416 S.W.3d at
697-700. The court explained, "Considering the language of the statute as a whole,
the Legislature's statement of intent, and existing law, which was referenced by
Legislature, we conclude that the TCPA does not apply to speech that is only
privately communicated. Only under such an interpretation can both purposes of
the TCPA be served." Id. At 700.
In the Jardin case, the court addressed a TCP A motion to dismiss based on
purported rights to petition and association invoked by filing of court pleadings.
Jardin, 431 S.W.3d at 768. Rejecting the applicability of the TCPA, the Jardin
10
court stated in dicta that: "Jardin would have us conclude that, simply by filing a
pleading in a lawsuit between private parties, he has invoked the protections of the
TCPA, despite the act's title, purpose, language and context, legislative history,
and the particular meanings of constitutional rights at issue." !d. at 773. The court
concluded that the TCPA's legislative history, purpose, and context instead support
the conclusion that the "exercise of the right of association" as defined in the
statute requires that the communications at issue concern public interest and does
not encompass private communications. See !d. at 770-773.
Similarly, in Rivers v. Johnson Custodial Home, Inc., No. A-14-CA-484-SS,
2014 WL 4199540 (W.D.Tex. Aug. 22, 2014), the court held communications to
prospective employers in response to reference checks · were private
communications that were not protected by the TCP A. !d. at *1-2. The court
observed that "[t]he Whisenhunt court surveyed the Texas cases involving free
speech claims under the TCP A and concluded all of them involved alleged
statements 'readily available to the public."' !d. at 2. The court therefore held that
"if a person not exercising his right to speak freely in public, the TCP A will not
apply to suits filed against him. "!d.
These decisions are all consistent with the text and context of the TCP A, as
well as its legislative history. The TCPA defines "exercise of the right of
association" to mean "a communication between individuals who join together to
collectively express, promote, pursue, or defend common interests." TEX. Crv.
11
PRAC. & REM CODE § 27.001(2). The statute defines the "exercise of the right of
free speech" to mean "a communication made in connection with a matter of
public concern." !d. at § 27.001(3). As the Jardin court observed, "[t]he clear
implication from these definitions is that the Legislature intended to protect
communications in the public interest." Jardin, 431 S.W.3d at 772, see also
Whisenhunt, 416 S.W.3d at 697; Cheniere Energy, 449 S.W.3d at 219 (Jennings,
1., concurring).
This Court has previously held that the text of the TCPA does not limit the
breadth of the rights protected by Chapter 27 to communications directed toward
government. See Combined Law Enforcement Ass 'n of Tex. v. Sheffield, No. 03-13-
00105-CV, 2014 WL 411672 at *2 (Tex. App.-Austin Jan. 31, 2014, pet. filed)
(Stating that the text of TCPA does not limit its scope). The Sheffield case involved
a claim for defamation arising out of a labor dispute which by its very nature
requires publication of a communication. !d. At *6. Other courts that have held the
TCP A extends beyond participation in government still require a public
communication. See, e.g., BBB of Metro Houston, Inc. v. John Moore Servs., Inc.,
441 S.W.3d 345, 353 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) ("TCPA
includes a person's right to communicate reviews or evaluations of services in the
marketplace.").
The legislative history of the TCP A further confirms that its purpose is to
protect communications analogous to participation in government made publicly,
12
rather than private communications. The legislative sponsor issues a statement of
intent, which includes the following reasoning for enacting the legislation:
Citizens participation is the heart of our democracy. Whether
petitioning the government, writing a traditional news article, or
commenting on the quality of a business, involvement of citizens in
the exchange of idea[ s] benefits our society.
The Texas Citizens Participation Act would allow defendants-who are
sued as a result of exercising their right to free speech or their right to
petition the government-to file a motion to dismiss the suit. ...
Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S.
(20 11 ). The statement of intent confirms the concept evident from the statute as a
whole: the Legislature intended to protect public communications analogous to
participation in government. The present case involving confidential business
information and trade secrets by its very nature would not and does not involve
public communications.
2. THE TCP A DOES NOT PROTECT THE DISCLOSURE OF
TRADE SECRETS
Appellants do not address the application of the TCPA to Ailtocraft's claims
individually, arguing instead that all of Autocraft's claims "center upon
defendants' communications among themselves as they promote and pursue their
common interests in developing and maintaining a successful auto body repair
business." C.R. 21. Thus by their own admission, this case involves private
communications at best. In a desperate attempt to couch Autocraft' s petition as a
SLAPP suit and in order to fall under the statute's purview, Appellants
13
mischaracterize Autocraft's claims. For example, Appellants assert that in filing
the lawsuit, Autocraft seeks to prevent them from communicating regarding
common business practices. C.R. 18. A simple review of Plaintiffs Original
Petition establishes that is not the case. C.R. 18-19.
Without question, Autocraft' s claims are limited to the improper disclosure
and use of its confidential business information and trade secrets. This suit turns on
Damian's misappropriation of trade secrets and the related breach of fiduciary duty
owed to Autocraft that survives termination of employment. As explained by this
Court, "trade secret law is intended to prevent ideas from being directly stolen,
rather than copied, and only applies to the small group of people privy to
confidential information." Garth v. Staktek Corp., 876 S.W.2d 545, 550 (Tex.
App.-Austin 1994, writ dism'd w.o.j.).
Further, as in this case, trade secret misappropriation cases often involve
breaches of confidence and fiduciary duties. Such cases do not implicate First
Amendment concerns, much less the specific First Amendment concerns protected
by the TCP A. See, e.g. Cohen v. Cowles Media Co., 501 U.S. 663, 668-72
( 1991) (holding that First Amendment protections were not triggered by a private
cause of action for promissory estoppel); Am. Motors Corp. v. Huffstutler, 575
N.E.2d 116, 120 (Ohio 1991) ("Disclosure of confidential information does not
qualify for protection against prior restraint under the First Amendment."); Cherne
Indus. Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 94 (Minn. 1979) (rejecting
14
First Amendment defense in trade secret case because of defendant's breach of
confidential relationship obligation.).
In rejecting a claim of First Amendment immunity by an employee who has
misappropriated documents in order to provide them to the press, the Fourth
Circuit Court of Appeals stated, "[ t]o permit the thief thus to misuse the
Amendment would be to prostitute the salutary purposes of the First Amendment."
United States v. Morison, 844 F.2d 1057, 1069-70 (4th Cir. 1988); see also, Cherne
Indus., 278 N.W.2d at 94. (noting that an employee "is not entitled to invoke the
First Amendment as a shield to immunize his act of thievery."). Under Appellants'
expansive view of the TCPA, contrary to these precedents, an employee and even a
fiduciary can invoke the First Amendment concerns protected by the TCP A as a
shield to "immunize" tortious conduct so long as the misconduct has some
connection to maintaining and operating a competitive business enterprise.
Appellants do not contest that trade secrets are protectable property interests
under Texas law. Autocraft has alleged entitlement to protection of its trade secret
and confidential business information relating to its business practices, procedures
and compilation of information which provides it with a competitive advantage in
the marketplace. The Texas Uniform Trade Secrets Act, §§ 134A.001-.008, TEX.
Crv. PRAC. & REM. CODE, provides Autocraft with remedies to protect and preserve
its trade secrets that have been acquired by improper means. See § 134A.003, TEX.
Crv. PRAC. & REM. CODE.
15
Appellants also do not contest that an employee has a common law duty not
to use confidential or proprietary information acquired during employment
adversely to his employer. Anderson Chern. Co. v. Green, 66 S.W.3d 434, 442
(Tex. App.-Amarillo 2001, no pet.). Thus, while a former employer may use the
general knowledge, skill, and experience acquired during the employment
relationship, he may not utilize confidential information or trade secrets acquired
during the employment relationship. !d. The fact that Defendants did not enter a
non-compete, non-solicitation or confidentiality agreement is irrelevant because a
former employees has a common law duty not to disclose a former employer's
confidential business information. Id.
Autocraft filed this suit after learning Damian had improperly taken and was
using its trade secret and confidential business information, including its business
processes, practices, forms, payment sheets, and compilations-which have been
carefully crafted and revised over three decades-to gain an unfair advantage in
the market for his new employer, Precision Auto. C.R. 42. Appellants could not,
and did not, meet their burden to prove by a preponderance of the evidence that
Autocraft's lawsuit, much less its misappropriation of trade secrets, unfair
competition and breach of fiduciary duty claims, were filed in response to,
premised upon, or otherwise implicated TCP A-protected communications.
Accordingly, the trial court correctly denied Precision Auto's motion to dismiss.
16
B. EVEN IF THE TCPA WERE OTHERWISE APPLICABLE TO
AUTOCRAFT'S TORT CLAIMS, THE COMMERCIAL SPEECH
EXCEPTION IN§ 27.010(b) PREVENTS DISMISSAL.
At the heart of Appellants' argument that the TCP A applies to Auto craft's
suit against them is their apparent view that the statute applies in numerous cases
having nothing to do with its underlying purpose of protecting Texans'
constitutional rights to "petition, speak freely, and otherwise participate in
government to the maximum extent permitted by law." To that end, Appellants
urge that the Court conclude the TCPA shields all of their actions complained of
by Autocraft because their conduct is in some way relates to their development and
maintenance of a competitive auto repair business, which entails the exercise of the
right of association and the right of free speech. Section 27.01 O(b) of the TCP A
provides:
[The TCPA] does not apply to a legal action brought against a person
primarily engaged in the business of selling or leasing goods or
services, if the statement or conduct arises out of the sale or lease of
goods, services, or an insurance product, insurance services, or a
commercial transaction in which the intended audience is an actual or
potential buyer or customer.
§ 27.010(b), TEX. CIV. PRAC. & REM. CODE. This statutory exemption precludes
any application of the anti -SLAPP statute here because Appellants, by their own
admission, are engaged in the business of selling services, and their alleged
exercise of their rights of free speech and free association on which their motion to
dismiss was predicated, ari~e out of "their common interests in developing and
17
maintaining a successful auto body repair business." C.R. 21. Remarkably,
Appellants contend that if Autocraft is successful in its suit, they would be
prevented from "communicating regarding business procedures that are commonly
employed in the automobile body repair shop industry." Appellants' Brief at 11.
This argument defies logic.
Thus, even if Auto craft's claim could somehow implicate the TCPA, the
commercial speech exception in section 27. 0 1O(b) prevents dismissal of the claims
against Appellants.
III. EVEN ASSUMING THE TCPA APPLIES TO APPELLEE'S CLAIMS,
AUTOCRAFT MET ITS BURDEN OF PROOF TO PREVENT
DISMISSAL OF ITS CLAIMS.
Because the trial court found that Appellants did not meet their burden of
proof to show that Autocraft's action is "based on, relates to, or is in response to"
their exercise of the right to free speech and right of association, it did not need to
address whether Autocraft established a prima facie case for each element of the
claim in question. In determining whether a non-movant carries the burden, the
trial court shall consider both the pleadings and evidence in the light most
favorable to the non-movant. See TEX. Crv. PRAC. & REM. CODE § 27.006; and
Schimmel v. McGregor, 438 S.W.3d 847, 855-56 (Tex. App.-Houston [1st Dist.]
2014, pet. filed). Auto craft did establish a prima facie case for misappropriation of
trade secrets, unfair competition and breach of fiduciary duty.
18
Texas courts have long held that a "prima facie case" is a minimum quantity
of evidence. "Prima facie evidence is merely that which suffices for proof of a
particular fact until contradicted and overcome by other evidence." Dodson v.
Watson, 220 S.W. 771, 772 (Tex. 1920). The term has also been used to mean that
the proponent has produced sufficient evidence to go to the trier of fact on the
issue. Coward v. Gateway Nat'l Bank, 525 S.W.2d 857, 859 (Tex. 1975).
As expressed in more recent decisions, a "prima facie case" requires a
"minimum quantity of evidence necessary to support a rational inference that the
allegations of fact is true." Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72
(Tex. App.-Houston [1st Dist.] 1998, pet. denied); Rosales V. H.E. Butt Grocery
Co., 905 S.W.2d 745, 748 (Tex. App.-San Antonio 1995, writ denied).
The Legislature is presumed to know and act with reference to the common
law. Haygood v. De Escabedo, 356 S.W.3d 390,403 (Tex. 2011); and TEX. Gov'T
CODE § 311.011 (b). Thus, the courts of appeals have adopted this well-understood
definition of the "prima facie case" for application in the TCPA context. See, e.g.
Schimmel, 438 S.W.3d at 855 (citing Robinson, 409 S.W.3d at 688); James v.
Calkins, 446 S.W.3d 135, 147 (Tex. App.-Houston [1st Dist.] 2014, pet filed.).
Indeed it is an elementary principle of Texas law that any ultimate fact may
be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 n.2
(Tex. 1993); Prudential Ins. Co. v. Krayer, 366 S.W.2d 779, 780 (Tex. 1963)
(holding that any ultimate fact may be conclusively shown by wholly
19
circumstantial evidence). There is nothing in the TCPA to suggest that the
Legislature meant, by the use of the phrase "clear and specific evidence," to sub
silentio preclude the use of circumstantial evidence and inference. To the contrary,
by incorporating the use of the "prima facie case" as the standard that a non-
movant must satisfy to preserve its claims, the Legislature has expressly authorized
the use of such evidence and inference as the accepted definition acknowledges
that reasonable inference may suffice-indeed, may be necessary-to prove the
elements of a claim. See Lammons Gasket Co. v. Flexitallic LP, 9 F. Supp. 3d 709,
712 (S.D. Tex. 2014) (noting in a TCPA case that proof of motive "must
necessarily, at this early stage of the proceeding, be circumstantial").
A trade secret misappropriation under Texas law requires ( 1) the existence
of a trade secret, (2) a breach of a confidential relationship, (3) use of the trade
secret, and (4) damages. Trilogy Software v. Callidus Software, Inc., 143 S.W.3d
452, 463 (Tex. App.-Austin 2004, pet. denied). Proof of trade secret
misappropriation often depends on circumstantial evidence. Southwestern Energy
Prod. Co. v. Berry-Helfand, 411 S.W.3d 581, 598 (Tex. App.-Texarkana 2013,
pet. filed). Under§ 134A.002, TEX. CIV. PRAC. & REM. CODE, a misappropriation
means acquisition of a trade secret of another by a person who knows or has reason
to know that the trade secret was acquired by improper means.
The law of unfair competition is an umbrella for all statutory and
nonstatutory causes of action arising out of business conduct which is contrary to
20
honest practice in industrial or commercial matters. United States Sporting Prods.
V. Johnny Stewart Game Calls, 865 S.W.2d 214, 217 (Tex. App.-Waco 1993,
writ denied.). Within the broad scope of unfair competition are the independent
causes of action such as trade secret misappropriation. !d.
Damages in a trade secret case can take a variety of forms. The methods
used to calculate damages include the value of plaintiffs lost profit; the
defendant's actual profits from use of the trade secrets; the value a reasonably
prudent investor would have paid for the trade secret; development costs the
defendant avoided by the misappropriation; and a reasonable royalty. See Berry-
Helfand, 411 S.W.3d at 609. Courts adjust the measure of damages to accord with
the commercial setting of the injury, the likely future consequences of the
misappropriation, and the nature and extent of the defendant's use of the trade
secret. !d.
Texas courts have long recognized that entrustment of trade secrets gives
rise to a fiduciary relationship in an employer-employee relationship. See In re
Associated Indep. Marketers Inc. of Am., Case No. 92-4941, 1993 U.S. App.
LEXIS 41111 at *9 (5th Cir. May 10, 1993). A breach of fiduciary duty exists
when a party uses confidential information adversely to the disclosing party. See
Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 770, 772 (Tex. 1958). A
former employee has a duty not to disclose a former employer's confidential
21
business information. Anderson Chern. Co. v. Green, 66 S.W.3d 434, 442 (Tex.
App.-Amarillo 2001, no pet.).
A trade secret is any formula, pattern, device, or compilation of information
which is used in one's business and presents an opportunity to obtain the advantage
over competitors who do not know or use it. Computer Assoc. Inti., Inc. v. Altai,
Inc., 918 S.W.2d 453,455 (Tex. 1996). In addition, a procedure or device may be
based on a previously existing idea in the industry, and still be entitled to
protection so long as the procedure or device is not generally known. See K&G
Oil Tool & Serv. Co. v. G&C Fishing Tool Serv., 158 Tex. 594, 314 S.W.2d 782,
785 (Tex. 1958).
Autocraft has alleged entitlement to protection of its trade secret and
confidential business information relating to its business practices, procedures and
compilation of information which provides it with a competitive advantage in the
marketplace. C.R. 41-43. Borek testified that Damian and/or Garcia took a copy of
Autocraft's proprietary compilation of technical service bulletins with them to
Precision Auto when they left Autocraft to join Precision Auto. C.R. 42. Borek
also testified that Precision Auto is using Autocraft's proprietary forms and
documents which he considers a trade secret. C.R. 42.
Appellants also do not contest that an employee has a common law duty not
to use confidential or proprietary information acquired during employment
adversely to his employer. Anderson Chern., 66 S.W.3d at 442. Thus, while a
22
former employer may use the general knowledge, skill, and experience acquired
during the employment relationship, he may not utilize confidential information or
trade secrets acquired during the employment relationship. Id. Autocraft filed this
suit after learning Damian had improperly taken and was using its trade secret and
confidential business information, including its business processes, practices,
forms, payment sheets, and compilations-which have been carefully crafted and
revised over three decades-to gain an unfair advantage in the market for his new
employer, Precision Auto. C.R. 42. The fact that Defendants did not enter a non-
compete, non-solicitation or confidentiality agreement is irrelevant because a
former employees has a common law duty not to disclose a former employer's
confidential business information. Id.
While the Technical Service Bulletins may be available online, Autocraft
spent substantial time and money searching through the tens of thousands of
available bulletins and purchasing, compiling and organizing the Technical Service
Bulletins relevant to its business. C.R. 41-42. Appellants could have done the
same, but instead chose not to expend the time and money to create a similar
compilation, choosing instead to simply take Autocraft's compilation and other
proprietary information. Furthermore, it is alleged that Appellants have improperly
used Autocraft's confidential information, including employee salary information,
to recruit and solicit more Autocraft employees to join Precision Auto, and this
tactic of recruitment is not permitted. C.R. 42-43.
23
To the extent Appellants object to the evidence submitted to the trial court at
the hearing, Appellants waived their objections having failed to secure a ruling on
their objections. On January 22, 2015, Appellants presented their objections to the
Affidavit of John Borek attached to Plaintiffs Response to Defendants' Motion to
Dismiss Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code, at
the time of the hearing. C.R. 53-59. At the conclusion of the hearing, the Court
took Appellants' motion under advisement
On January 23, 2015, the Court signed and entered its Order Denying
Defendants' Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil Practice
and Remedies Code. C.R. 49. On January 28, 2015, Appellants filed their Notice
to Appeal, appealing the Court's order denying their motion to dismiss. C.R. 50-
51.
Appellants did not secure a ruling on their objections prior to filing their
notice of appeal, which, under TEX. Crv. PRAC. & REM. CODE § 51.0 14(b), stayed
all proceedings in the trial court pending resolution of the appeal. Accordingly,
Appellants' objections are waived. See, e.g., Rodriguez v. Wal-Mart Stores, Inc.,
52 S.W.3d 814, 823 (Tex. App.-San Antonio 2001) (objections waived by failing
to obtain a ruling), rev 'din part on other grounds, 92 S.W.3d 502 (Tex. 2002); see
also Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 466 (Tex. App.-
Texarkana 1998, pet. denied) (error waived where reporter's record only reflected
trial court's intent to rule at a later date but record did not contain a specific ruling
24
on objection). Thus, Autocraft's submission of both direct and circumstantial
evidence establishing a prima facie case for each element of its claims against
Appellants precludes dismissal under the TCP A.
PRAYER
Appellee, Autocraft Bodywerks, Inc., requests that the Court affirm the trial
court's denial of Appellants' motion to dismiss under Chapter 27 of the Texas
Civil Practices & Remedies Code. Autocraft further requests . such other and
further relief to which it may be justly entitled.
Respectfully submitted,
By: Is/ James G. Ruiz
James G. Ruiz
State Bar No. 17385860
jruiz@winstead.com
Jacylyn G. Austein
State Bar No. 24069760
j austein@winstead. com
WINSTEAD PC
401 Congress A venue, Suite 2100
Austin, Texas 78701
(512) 370-2800
(512) 370-2850 (Fax)
ATTORNEYS FOR APPELLEE
AUTOCRAFT BODYWERKS, INC.
25
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing Brief of Appellee was
forwarded via electronic service to the following on the 20th day of April, 2015:
Rick Harrison
Sam King
Dale L. Roberts
FRITZ, BYRNE, HEAD & HARRISON, PLLC
98 San Jacinto Boulevard, Suite 2010
Austin, Texas 78701
Is/ James G. Ruiz
James G. Ruiz
26
CERTIFICATE OF COMPLIANCE
I certify that the word count for this filing, excluding portions of the brief
that need not be counted under Rule 9.4(i)(l), is 5,429 according to the Microsoft
Word 2010 word count feature, in compliance with the 15,000 word limit set for
merits briefing by Rule 9.4(i)(2)(B).
Is/ James G. Ruiz
James G. Ruiz
27
782076v.l 57457-1
NO. 03-15-00064-CV
IN THE COURT OF APPEALS FOR THE
THIRD DISTRICT OF TEXAS
AT AUSTIN, TEXAS
ELITE AUTO BODY LLC d/b/a PRECISION AUTO BODY, REY R.
HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN,
Appellants
v.
AUTOCRAFT BODYWERKS, INC.
Appellee
ON APPEAL FROM THE 345th JUDICIAL DISTRICT COURT
TRAVIS COUNTY, TEXAS
TRIAL COURT CAUSE NO. D-1-GN-14-004535
HONORABLE TIM SULAK, PRESIDING JUDGE
APPENDIX TO BRIEF OF APPELLEE
A. Order Denying Defendants' Motion to Dismiss Pursuant to Chapter 2 7 of the
Texas Civil Practice and Remedies Code
B. Plaintiffs Original Petition and Application for Injunctive Relief
28
APPENDIX A
Filed In The District Court
on 0.f p,rWt,;,•'f-8•-
'·~DI~-:
at I~ lrM.
CAUSE NO. D-1-GN-14-004535 Velva L~ Price, Dletrict Clerk
AUTOCRAFT BODYWERKS, INC., § IN THE DISTRICT COURT
§
Plaintiff, §
§
vs. §
§
ELITE AUTO BODY LLC, §
dba PRECISION AUTO BODY, §
REY R. HERNANDEZ, § TRAVIS COUNTY, TEXAS
VESICA DIAZ, and §
DAVID DAMIAN, §
§
Defendants, §
§
vs. §
§
JOHN BOREK, §
§
Third-Party Defendant. § 345th JUDICIAL DISTRICT
ORDER DENYING DEFENDANTS' MOTION TO DISMISS PURSUANT TO
CHAPTER 27 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE
On the 22nd day of January, 2015, the Court heard Defendants' Motion to Dismiss
Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code (the "Motion"). After
considering the pleadings, affidavits, and legal arguments, tRe Ceart f~ thaot Cha:Pter 27 of the``
'Fexas ·civil Ptactlce and Itemedies Code is inapplicable te this !mt. It is therefore, ','Z-~ \
ORDERED that the Motion is hereby DENIED in all respects.
Signed this 2.!>'dayofJanuary2015.
APPENDIXB
10/29/2014 4:16:00 PM
Amalia Rodriguez-Mendoza
District Clerk
Travis County
CAUSE NO. D-1-GN-14-004535 D-1-GN-14-004535
AUTOCRAFT BODYWERKS, INC., § IN THE DISTRICT COURT
§
Plaintiff. §
§
vs. §
§
ELITE AUTO BODY LLC, § TRAVIS COUNTY, TE~XAS
dba PRECISION AUTO BODY, §
REY R. HERNANDEZ, §
VESICA DTAZ, and §
DAVID DAMIAN, §
§
Defendants. § _ 5_th_ JUDICIAL DISTRICT
_34
PLAINTIFF'S ORIGINAL PETITION
AND APPLICATION FOR INJUNCTIVE RELIEF
Plaintiff Autocraft Bodywerks, Inc. ("Autocra:ft"), a Texas corporation, complains of
Defendants Elite Auto Body LLC, dba Precision Auto Body ("Elite Auto"), Rey R. Hernandez
("Hernandez"), Yesica Diaz ("Diaz"), and David Damian ("Damian"), as follows:
I.
DISCOVERY PLAN
1. This case shall be governed by Discovery Control Plan Level 2 of Texas Rule of
Civil Procedure 190.
II.
PARTIES
2. Plaintiff Autocraft is a Texas corporation having its principal place of business in
Austin, Travis County, Texas.
3. Defendant Elite Auto is a Texas corporation having its principal place of business
in Travis County, Texas, and may be served with process through its registered agent, Rey R.
Hernandez, 2801 Lyons Road, Austin, Texas 78702.
PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page 1
762582v.l 57457~]
4. Defendant Hernandez is an individual who resides in Hays County, Texas, and
may be served with process at 1261 Cherrywood, Kyle, Texas 78640, or anywhere within the
state he can be found.
5. Defendant Diaz is an individual who resides in Hays County, Texas, and may be
served with process at 1261 Cherrywood, Kyle, Texas 78640, or anywhere within the state she
can be found.
6. Defendant Damian is an individual who resides in Travis County, Texas, and may
be served with process at 11303 Stonny Ridge Road, Austin, Texas 78739, or anywhere within
the state he can be found.
III.
JURISDICTION AND VENUE
7. This Court has personal jurisdiction over the parties to this case, as well as subject
matter jurisdiction over the claims asserted herein pursuant to Art. 5, § 8 of the TEXAS
CONSTITUTION, in that Defendants are residents of the State of Texas, and the amount in
controversy exceeds the minimum jurisdictional limits of this Court.
8. Venue is proper in Travis County pursuant to TEX. CIV. PRAc. & REM. CoDE,
§ 15.002(a)(l) in that the events surrounding Plaintiff's claims occurred in Travis County, Texas.
IV.
FACTS
9. Autocraft is an auto-repair shop that offers full-service, high-end collision
restoration to a11 makes and models of vehicles, and has been operating its business in Austin,
Texas since 1984. Autocraft owes much of its success and value to the expertise it has gathered
from over thirty-years of experience in the auto-repair industry. Over the past three decades, it
PLAINTIFF'S ORIGINAL PETITION AND APPLTCA TJON FOR lNJUNCTJVE RELIEF Page2
762582v.l 57457-1
has compiled an extensive record of Technical Service Bulletins ("TSBs") and developed an
intricate system to improve operations.
10. On or around March 7, 2008, Autocraft hired Hernandez as a production manager.
Less than a year later, Hernandez quit without giving any notice. In fact, one day, he just stopped
showing up. Hernandez opened his own auto-repair shop at 2801 Lyons Road. A couple of
Autocraft employees left with Hernandez. The Certificate of Ownership for the unincorporated
business was filed on February 11, 2009, under the business name "Precision Auto Body." Diaz
is listed on the Certificate of Ownership as the full owner of the property. On March 12, 2014,
Hernandez incorporated the business by forming the limited liabilitY company Elite~ however, he
kept Precision Auto Body as the assumed name.
11. On or around March 14, 2014, Damian, a production manager who had been with
Autocraft for six years, quit and joined Elite. About two months later, Autocraft's·office manager
of nine years, Joyce Garcia ("Garcia"), left without giving notice to join Elite ..
12. Damian and Garcia held positions of trust and confidence with Autocraft and
received and had access to proprietary and confidential information and trade secrets that
Autocraft had developed for over thirty years through the extensive use of its time, labor, skill
and resources. For example, Autocraft provided Damian and/or Garcia with access to the
following during their employments:
a. Personnel information on employees, including salary information;
b. Financial information, including profit and loss statemep.ts;·
c. Proprietary compilation of TSBs; and
d. Proprietary client forms, such as payment sheets and vehicle· check lists.
PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page 3
762582v.l 57457-1
13. Upon info1111ation and belief, Damian and/or Garcia provided Elite with most, if
not a11, of the above-mentioned confidential, proprietary and trade secret information.
Defendants have been using Autocraft's confidential, proprietary, and trade secret information to
obtain an unfair competitive advantage in the marketplace for their own persomil gain, and to the
detriment of Autocraft. Furthennore, upon infonnation and belief, Elite is usi.ng Autocraft's
confidential information, including employee salary information, to convince more employees to
leave Autocraft and join Elite. Of the eight employees at Elite, six are from Autocraft.
14. As a result of the above-described conduct by Defendants, Autocraft has been
injured and continues to be injured and damaged. Autocraft's injuries and damages include, but
are not limited to, the potential loss of clients and revenue and the misappropriation and unfair
use of Autocraft's trade secrets and confidential and proprietary information.
v.
CLAIMS FOR RELIEF
COUNTl
APPLICATION FOR INJUNCTIVE RELIEF
15. The paragraphs above are realleged and incorporated herein by reference as if set
forth in this Count.
16. Plaintiff will suffer immediate and irreparable injury, loss, ·or damage if:
Defendants, and all others acting in concert with them, are not immediately enjoined from
disclosing or using Autocraft's confidential and proprietary information and trade secrets,
including but not limited to, for purposes of competing with Autocraft and contacting and
soliciting Autocraft's employees to join Elite. Therefore, Autocraft seeks temporary and
permanent injunctive reliefi preventing Defendants from continuing to use its confidential,
proprietary and trade secret infonnation to which they have no right to use or possess.
PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page4
762582v.l 57457-1
17. The relief requested is necessary to prevent any further iri-eparable injury to
Autocraft prior to a trial on the merits in this case. If Autocraft is successful on the merits at
trial, which is likely, the opportunity to recover damages at the conclusion of the case will not
remedy the harm to it resulting from Defendants' wrongful conduct that will or might continue
during the progress of this litigation) and Autocraft will have no adequate remedy at law unless
the Court grants injunctive relief as prayed for herein as the loss of trade secrets and potential
loss of clients will be difficult to completely calculate.
18. Following a trial on the merits, the Court should enter a permanent injunction,
continuing in effect the injunctive relief described above.
COUNT2
MISAPPROPRIATION OF TRADE SECRETS AND VIOLATION OF
CHAPTER 134A OF THE CIVIL PRACTICE & REMEDIES CODE
19. The paragraphs above are realleged and incorporated herein by reference as if set
forth in this Count.
20. The confidential, proprietary, and trade secret information of Autocraft described
above is protected information under Texas law because it is a compilation of information that
Autocraft uses in its business, which gives Autocraft an opportunity to obtain an advantage over
competitors who do not own or possess the information.
21. Autocraft owns this confidential, proprietary, and trade secret information, and
Defendants are improperly using it for their own personal gain and to the detriment of Autocraft,
and they are conspiring with each other to engage in this wrongful conduct.
22. As a result of Defendants' misappropriation of Autocraft's confidential and
proprietary infonnation, and trade secrets, Autocraft has suffered and will continue to suffer
damages in excess of the minimum jurisdictional limits of this Court.
PLAINTIFF'S ORIGTNAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page 5
762582v.l 57457·1
COUNT3
UNFAIR COMPETITION
23. The paragraphs above are realleged and incorporated herein by reference as if set
forth in this Count.
24. The Defendants' conduct described above constitutes unfair competition under
Texas common law, and the Defendants' unfair competition has proximately caused Autocraft
irreparable hann.
25. As a result of; this unfair competition, Autocraft has suffered and will continue to
suffer damages in excess of the minimum jurisdictional limits of this Court.
CoUNT4
BREACH OF FIDUCJARY DUTY
26. The paragraphs above are realleged and incorporated herein by reference as if set
forth in this Count.
2 7. As an employee of Autocraft, Damian owed certain fiduciary duties, including a
duty of loyalty and utmost good faith and the duty not to misuse the confidential information of
Autocraft. Certain fiduciary duties, including the duty not to disclose or misuse Autocraft's
confidential, proprietary and trade secret infonnation, continue after the termination of
employment.
28. Damian breached his fiduciary duties by undertaking actions to harm Autocraft's
business, including (a) assisting Hernandez and Diaz in unfairly competing. with Autocraft;
(b) assisting Hernandez and Diaz with their efforts to hire away . Autocraft employees;
(c) misappropriating Au toe raft's confidential and proprietary information,. trade secrets and
valuable work; (d) inducing or otherwise assisting Garcia and other former employees to
PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page 6
762582v.l 57457~1
misappropriate Autocraft's confidential and proprietary information, trade secrets and valuable
work product; and (e) failing to act in the best interests of Auto craft.
29. As a result of Damian's breach, Autocraft has suffered and will continue to suffer
damages in excess of the minimum jurisdictional limits of this Court.
CoUNTS
VICARIOUS AND PARTICIPATORY LIABILITY OF HERNANDEZ AND DIAZ
30. The paragraphs above are realleged and incorporated herein by reference as if set
forth in this Count.
31. Hernandez and Diaz are individually and jointly liable in damages to Autocraft
for the wrongful acts committed by Damian and other former Autocraft employees because
(a) they assisted and encouraged the wrongful acts [See RESTATEMENT (SECOND) OF TORTS
§ 876(b)]; and (b) they assisted and participated in the wrongful acts [See REsTATEMENT
(SECOND) OF TORTS§ 876(c)].
32. Due to its vicarious and participatory liability, Hernandez and Diaz are also
subject to and bound by all relief sought by Autocraft.
COUNT6
CIVIL CONSPlRACY
33. The paragraphs above are realleged and incorporated herein by reference as if set
forth in this Count.
34. Hernandez and Diaz were active participants in Damian's and other fanner
employees' breach of their fiduciary duties and misappropriation of proprietary information and
trade secrets.
PLAINTIFF'S 0RTGJNAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page 7
762582v.t 57457~1
35. Defendants entered into a conspiracy to accomplish an unlawful purpose or to
accomplish a lawful purpose by unlawful means. Defendants' conspiracy proximately caused
Autocraft significant actual damages and as a result, each is liable for the actions of the other.
36. In furtherance of the conspiracy, Defendants and others within the conspiracy
committed one or more unlawful acts or otheiWise lawful acts for unlawful purposes, including,
but not limited to, unlawfully misappropriating Autocraft's proprietary information and trade
secrets for their own gain and to the detriment of Autocraft, and breaching and causing others to
breach their fiduciary duties to Autocraft.
37. As a result, Autocraft has suffered and will continue to suffer damages in excess
of the minimum jurisdictional limits of this Court
COUNT7
EXEMPLARY DAMAGES
38. The paragraphs above are realleged and incorporated herein by ~eference as if set
forth in this Count.
39. The Defendants' tortious conduct was carried out intentionally and with conscious
disregard of Autocraft's rights, thereby warranting the imposition of exemplary damages in
accordance with Chapter 41, TEX. Crv. PRAC. & REM. CODE.
VI.
REQUEST FOR DISCLOSURE
40. Under Texas Rule ofi Civil Procedure 194, Autocraft req~ests that Defendants
disclose, within fifty (50) days of the service of this request, the infonnation or material
described in Rule 194.2.
PLAINTTFF'S ORTGTNAL PETTTTON AND APPLICATION FOR INJUNCTIVE RELIEF Page 8
762582v.l 57457-1
VII.
RULE47STATEMENT
41. Per Texas Rule of Civil Procedure 47, Autocraft states that it seeks monetary
relief of $100,000 or less, and non-monetary relief.
VIII.
CONDITIONS PRECEDENT
42. Per Texas Rule of Civil Procedure 54, all conditions precedent have occurred,
have been performed, have been waived, or have otherwise been satisfied or excused.
IX.
PRAYER
WHEREFORE, Autocraft requests the following relief:
. a. Enter a judgment for actual damages, exemplary damages, costs of litigation,
including reasonable and necessary attorney's fees, prejudgment and post
judgment interest at the maximum rate allowed by law, and costs of court as
prayed herein;
b. Enter temporary and permanent injunctive relief as requested herein;
c. Grant Plaintiff all other and further relief to which Plaintiff may show itself to be
justly entitled.
Respectfully submitted,
WINSTEAD P.C.
40 1 Congress Avenue, Suite ·21 00
Austin, Texas 78701
(512) 370-2818
(512) 3 70-2850 (Fax)
By: Is/ James G. Ruiz
James G. Ruiz
State Bar No. 17385860
jruiz@winstead.com
ATTORNEYS FOR PLAINTIFF
PLAINTIFF'S ORIGINAL PETITT ON AND APPLICATION FOR INJUNCTIVE RELIEF Page 9
762582v.l 57457-1
CIVIL CASE lNFORMATION SHEET
0-1-GN-14-004535 345th
CAUSE NUMBER (mR CLERK USE O N L Y ) : - - - - - - - - - - - - - COURT (FOR CLERK USE O N L Y ) : - - - - - - - - - -
STYLED Autocraft Bodywerks, Inc. vs. Elite Auto Body LLC Et AI.
('=.g., John Smith v. All American lnsurilllce Co; In r'= Mary Ann~ln the Matt'=T of the Estate of George Jackson)
A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new· civil, family law, probate, or mental
health case or when a post-judgment petition for modification or. motion for enforcement is filed in a family law case. The information should be the best available at
. offil'
the tune 1 mg.
1. Contact lrifor:m'~tion for P.el"SOII compl!!tl~ case·lnfol'matlon sheet: 'Names ofparti~J.. ·case: . ,., : Pers·on or entity compl~tlng shee~ Is:
Attoniey for Plaintiff/Petitioner
Name: Email· Plaintiff(s)/Petitioner(s): i ~ ':ProSe Plaintiff/Petitioner
James G. Ruiz jruiz@winstead.com
-- Autocraft Bodywerks, Inc.
: ill ifitle IV-D Agency
Address: Telephone:
--
Other:
--
401 Congress, 21 st F1 oor ill.n 370-2818 -- Additional Parties in Child Support Case:
City/State/Zip: Fax: Defendant(srespondent(s ):
Austin, TX 7870 I ill..ll3 70-2850 Elite Auto ody LLC Custodial Parent:
Rey R. Hernandez
Yesica Diaz Non-Custodial Parent:
Signature: State Bar No:
17385860 David Damian --
Presumed Father:
Is/ James R. Ruiz
[Attach additional p``ge as necessiii'Y lo list all parties] --
2. Indicate case-type, or lde~tlfy tbe ntost important issueln the C!ISC (select only 1):
Civil Family Law
Post-judgment Actions
Contract lo:iory or Dama~te Real Property Marriage Relatlonshljl_ · . (non-Title JV.D)
Debt/Con.N-act ~Assault/Battery &Eminent Domain/ ``nnulment
~on•um"IOTPA t;llconstruction Condemnation Declare Marriage Void Etreem'"t
odification-custody
.~moon
ebt/Contract llnefamation Divorce od ificatio~Other
raud!Misrepresentation < uiet Title ..·. ·Tide w.~p ,.
Mm-~
t:ith Children ..
· ther Debt/Contract: · Accounting ' . frrespass to Try Title ..... o Children iEnforcement/Modification
--
Foreclosure
' egal ;_ bther Property: . Paternity
``me Equity-Expedited
· ·Medical
. · Other Professional
-- !Reciprocals (UIFSA)
·. ,[support Order
ther Foreclosure . Liability: _ _
..J~r~nchise Rebltef):to·CI'ihilnaT. · · ·','
t,oto; Vehicle Accident · .;, . · Ott!'e(Fa~ily L8w : i:'~rent~·child Rel.iltlonshlp
:M-atters
.... Insurance rem1ses ·
~andlord/Tenant Product Liability ' "'lE~punction li.J.Enforce Foreign ~!{_Adoption/Adoption with
Termination
I'"'
~udgment Nisi Judgment
~sbestos/Silica
i
:" [Non-Competition
~hild Protection
.,
Partnership ' Other Product Liability !Non-Disclosure
arne Change ·
,., Other Contract: List Product: > ~eizure/Forfeiture eo''"' hild Support
--
f!'Other Injury or Damage:
I!Jwrit of Habeas Corpus-
Pre-indictment
]lother: _ _
!Protective Order
emoval ofDisab1ht1es
of Minority
I""Y "v;,na,;,
'"'"'\ Porent;ng
Grandparent Access
-- Bother: _ _ . aternity/Parentage
Errrpioy'n\eiU , . ·'Other Civ.ii: . ermination of Parental
'filAdministrative Appeal .!l-awyer Discipline Rights
lr"dml"'"''
etaliation l.iAntitrust/Unfair ·Perpetuate Testimony Rother Parent-Child:
ermination . Competition · l :Securities/Stock --
&workers' Compensation IJ·code Violations ,. Tortious Interference
!mother Employment: ~Foreign Judgment 'bther:
--
-- Intellectual Property
·Tal. .. Probate & Mental Health
Probate/Willsllntestate Administration Guardianship-Adult
ioxApp";," ()uardianship-Minor
Tax Delinquency
Other.Tax
l"'d'"t
i.
Admini'"'"'"
ndependent Administration
'; Mental Health
i _"!Other Estate Proceedings ..... Pfher: _ _
3, lpdl~&n; proceif~re.~r·temedy, :jf applicab1~:(~ ~el(ct,:,ore thrrn, 1): . ..... ·' .. ' ...·. .... ... ·' .-...
~Appeal from Municipal or Justice Court :I'IDeclaratory Judgment Prejudgment Remedy
~rbitration-related i~:!Gamishment Protective Order
~Attachment "ci nterpleader Receiver
Bill ofReview tt-icense Sequestration·
Certiorari !Mandamus rTemporary Restraining Order/Injunction
Class Action .!Post-judgment ···~umover
·•. ·'
. 4.-.J~dic~j~ da.ma2e8.so'ne:hHd1.1 no( select, lflt'is afainily)irw ca.r~):' · ., ..
··, ... ., ..
il,ess than $100,000, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees
Less than SI 00,000 and non-monetary relief
.. Over $100, 000 but not more than $200,000
.Over $200,000 but not more than $1,000,000
, Over $1 ,000,000
Rev 2113