Morrell Masonry Supply, Inc. v. Jesus Perez ( 2014 )

Opinion issued August 5, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00887-CV
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MORRELL MASONRY SUPPLY, INC., Appellant
V.
JESUS PEREZ, Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2012-46283
MEMORANDUM OPINION
Appellant, Morrell Masonry Supply, Inc. (“Morrell Masonry”), sued
appellee, Jesus Perez, for his alleged breach of the parties’ “Covenant Not to
Compete and Confidentiality Agreement.” The trial court granted Perez’s motion
for summary judgment and issued a take-nothing judgment against Morrell
Masonry. In its sole issue on appeal, Morrell Masonry argues that the trial court
erred in granting summary judgment in Perez’s favor.
We affirm.
Background
Perez became an employee of Morrell Masonry in the fall of 2007. Morrell
Masonry is in the business of supplying stucco and other masonry materials. In
October 2008, Perez signed the “Covenant Not to Compete and Confidentiality
Agreement” (“the Agreement”) in exchange for participating in Morrell Masonry’s
employee profit sharing program. The Agreement provided:
In consideration for participating in [Morrell Masonry’s]
(“employer”) profit sharing program employee promises to abide by
the following terms and conditions.
Employee recognizes and acknowledges that as a participant in
employer’s profit sharing program employees will have access to all
of employer’s corporate records. . . . [E]mployee specifically agrees
that he or she will not at any time, in any fashion, form, or manner,
either directly or indirectly, divulge, disclose, or communicate to any
person, firm, or corporation in any manner whatsoever any
information . . . concerning any matters affecting or relating to the
business of employer. . . .
[E]mployee specifically agrees that for a period of one year
following the termination of employment, however caused, the
employee will not within the geographical limits of the State of Texas
directly or indirectly for himself, or on behalf of, or as an employee of
any other merchant, firm, association, corporation, or other entity
engaged in or be employed by any stucco and/or E.I.F.S. supplier
business or any other business that is competitive with employer.
Employee further agrees that in the event of violation of this
agreement by employee, employee will pay as liquidated damages to
the employer the sum of $100.00 per day, for each day or portion of a
day that the employee continues such breach of the agreement. . . .
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Morrell Masonry subsequently terminated Perez’s employment in August
2011, and Perez obtained a job working for Acoustical Material Supply Co.
(“Acoustical”). Morrell Masonry asserted that Acoustical was a competitor of
Morrell Masonry’s. However, Perez argued that Acoustical primarily sells
acoustical and dry wall products, that less than two percent of its business in 2011
consisted of selling stucco products similar to those sold by Morrell Masonry, and
that Acoustical’s stock of stucco products was depleted by the end of 2012. Thus,
Perez argued that Acoustical was not competing with Morrell Masonry.
Morrell Masonry filed suit against Perez, alleging that Perez executed the
Agreement in 2008 in exchange for participating in the profit sharing program.
Morrell Masonry further alleged that the limitations “placed on [Perez] by the
covenant were reasonable” and “imposed no greater restriction than necessary to
protect [its] business interests.” Morrell Masonry asserted that it terminated
Perez’s employment in 2011. Morrell Masonry’s petition asserted a cause of
action for “Breach of [the] Covenant Not to Compete.” It alleged that, following
his termination, Perez “breached the covenant not to compete by obtaining
employment with a business that competes with” Morrell Masonry, and it sought
liquidated damages in the amount of $100 per day that Perez worked in violation
of the Agreement’s covenant not to compete.
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Morrell Masonry then moved for summary judgment, asking the trial court
for “final summary judgment on its cause of action” against Perez. It alleged that
Perez breached the Agreement by obtaining employment with Acoustical, a
business that competes with Morrell Masonry.
Perez likewise moved for final summary judgment, asserting the defense of
collateral estoppel based on a previous lawsuit between Morrell Masonry and a
former colleague of Perez’s who had signed an identical agreement that a Harris
County district court had determined was overbroad and unenforceable. Perez also
argued that, as a matter of law, the covenant not to compete was unenforceable
because the “State-wide geographical restriction” was “overbroad,” because of the
“the absence of consideration for Perez’ execution of the Non-Compete,” and
because Perez did not work for a “competitor” of Morrell Masonry’s.
Morrell Masonry responded to this motion, specifically arguing that the
covenant not to compete was not overbroad and that it was supported by adequate
consideration. It also addressed Perez’s claim that Acoustical was not a
competitor.
The trial court denied Morrell Masonry’s motion for summary judgment and
granted Perez’s motion for summary judgment against Morrell Masonry, stating
that its order “represent[ed] a final, take nothing judgment on all of Morrell
Masonry Supplies, Inc.’s claims.” Morrell Masonry subsequently moved for a new
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trial, arguing that Perez’s unpleaded affirmative defense of collateral estoppel
could not support the trial court’s grant of summary judgment; that collateral
estoppel did not apply in the present case; that the geographic restriction was not
unreasonable or overbroad and, even if it was, it should have been reformed; and
that Morrell Masonry was denied its right to a jury trial.
Summary Judgment
In its sole issue on appeal, Morrell Masonry argues that the trial court erred
in granting summary judgment in Perez’s favor.
A. Standard of Review
We review a trial court’s ruling on a motion for summary judgment de novo.
Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a
traditional summary judgment motion, the movant has the burden of proving that it
is entitled to judgment as a matter of law and that there are no genuine issues of
material fact. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “We review the evidence presented
in the motion and response in the light most favorable to the party against whom
the summary judgment was rendered, crediting evidence favorable to that party if
reasonable jurors could, and disregarding contrary evidence unless reasonable
jurors could not.” Fielding, 289 S.W.3d at 848.
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B. Analysis
Morrell Masonry asserted a cause of action for breach of the covenant not to
compete contained in the Agreement. Both parties moved for summary judgment
on this claim, and the trial court denied Morrell Masonry’s motion and granted
Perez’s motion. Morrell Masonry does not challenge the trial court’s ruling
granting Perez’s motion for summary judgment regarding its claim for breach of
the non-compete Agreement.
Morrell Masonry argues, however, that the trial court erred in granting
summary judgment on an “unaddressed claim,” arguing that the Agreement
contained both non-competition and confidentiality covenants and that Perez never
sought summary judgment related to the confidentiality covenant. Morrell
Masonry further asserts various arguments regarding a claim for breach of the
confidentiality covenant, arguing that the trial court “erred in granting summary
judgment because nondisclosure covenants are not against public policy and are
not required to contain reasonable time or geographical limitations” and because
“consideration existed” for the confidentiality covenant. Morrell Masonry argues
that it showed during the summary judgment proceedings that Perez worked for
one of its competitors and, thus, it is entitled to “the reasonable inference . . . that
confidential information is being shared by Perez with his new employer.”
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However, Morrell Masonry did not plead a cause of action for breach of the
confidentiality clause in the trial court, nor did it assert any facts raising that
complaint. Morrell Masonry’s petition asserted facts related to Perez’s alleged
breach of the covenant not to compete and asserted only a claim for breach of that
covenant. Morrell Masonry did not assert any facts or arguments relating to an
alleged breach of confidentiality in its petition, motion for summary judgment,
response to Perez’s motion for summary judgment, or motion for new trial.
Morrell Masonry is not entitled to assert a new claim for breach of the
Agreement’s confidentiality clause for the first time on appeal as a basis for
avoiding the trial court’s summary judgment. See TEX. R. CIV. P. 166a(c) (“Issues
not expressly presented to the trial court by written motion, answer or other
response shall not be considered on appeal as grounds for reversal.”); TEX. R. APP.
P. 33.1(a) (requiring presentation of complaint to trial court to preserve issue for
consideration on appeal); see also Baxter v. Gardere Wynne Sewell LLP, 182
S.W.3d 460, 465 (Tex. App.—Dallas 2006, pet. denied) (holding that appellants
could not assert claim for first time on appeal to avoid summary judgment and
noting that “[i]ssues a nonmovant contends avoid summary judgment that are not
expressly presented to the trial court by written answer or other written response to
the summary judgment motion are waived on appeal”); Loera v. Interestate Inv.
Corp., 93 S.W.3d 224, 228 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)
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(concluding that claims that were never pleaded, were not issues in trial, and were
not subject of request for findings of fact or conclusions of law were not preserved
for appellate review; stating that appellants could not “rewrite their pleadings to
allege new causes of action for the first time in a motion for new trial”); Wiley-
Reiter Corp. v. Groce, 693 S.W.2d 701, 704 (Tex. App.—Houston [14th Dist.]
1985, no writ) (“It is well-settled that an appellate court should not decide a case
on a theory different from that on which it was pleaded and tried.”). Because
Morrell Masonry did not plead or otherwise argue the issue of breach of the
confidentiality covenant in the trial court, we conclude that it failed to preserve this
complaint for our review.
Morrell Masonry argues that we should construe its petition as raising any
“cause of action that may be reasonably inferred from what is specifically stated,
even if an element of the cause of action is not specifically alleged.” See, e.g.,
Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982) (holding that courts should
construe pleadings liberally in absence of special exceptions); Westcliffe, Inc. v.
Bear Creek Constr., Ltd., 105 S.W.3d 286, 292 (Tex. App.—Dallas 2003, no pet.)
(holding that petition is sufficient if cause of action may be inferred from what is
stated in petition, even if element of action is not specifically alleged). Here,
however, Morrell Masonry’s pleadings did not merely omit allegations relevant to
an element of a breach of confidentiality claim—its petition failed to assert such a
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claim in any form. The pleading asserted no facts or arguments relating to a
breach of confidentiality, and thus a cause of action for breach of the
confidentiality clause could not be inferred from what was alleged in the pleadings.
See Roark, 633 S.W.2d at 809; Westcliffe, Inc., 105 S.W.3d at 292.
Morrell Masonry also argues that Perez did not file special exceptions to
Morrell Masonry’s pleadings and did not “address the covenant of confidentiality,
although the trial court granted summary judgment on this unaddressed claim.”
We have concluded that Morrell Masonry failed to assert such a claim in any form
in the trial court. Perez had no obligation to file special exceptions challenging
pleadings that were not made, nor was his motion for summary judgment required
to address claims not raised in the pleadings or other written material filed in the
trial court. See TEX. R. CIV. P. 166a. Thus, we conclude that the trial court’s grant
of Perez’s motion for summary judgment actually disposed of all claims and
parties then before it. See Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d
582, 585 (Tex. 2012) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192–
93 (Tex. 2001)).
We overrule Morrell Masonry’s sole issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Sharp, and Huddle.
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