Oak Mortgage Group, Inc. Michael H. Nasserfar Michael E. Task And Tycord R. Gosnay v. Ameripro Funding, Inc.

ACCEPTED
03-15-00416-CV
7113395
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/25/2015 6:30:05 PM
JEFFREY D. KYLE
CLERK
CASE NO. 03-15-00416-CV
________________________________________
FILED IN
IN THE COURT OF APPEALS 3rd COURT OF APPEALS
AUSTIN, TEXAS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS
9/25/2015 6:30:05 PM
________________________________________
JEFFREY D. KYLE
Clerk
OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
MICHAEL E. TASK, AND TYCORD R. GOSNAY
Appellants
V.
AMERIPRO FUNDING, INC.
Appellee
Appeal from the 345th Judicial District Court
of Travis County Texas
________________________________________
APPELLANTS’ OPENING BRIEF
________________________________________
Wm. Charles Bundren, Esq.
Attorney-in-Charge
State Bar No. 03343200
2591 Dallas Parkway
Suite 300
Frisco, Texas 75034
Telephone:214.808.3555
SEPTEMBER 17, 2015 ORAL ARGUMENT REQUETSED
IDENTITY OF THE PARTIES AND COUNSEL
1. Appellants are Oak Mortgage Group, Inc., Michael H. Nasserfar, Michael
E. Task, and Tycord R. Gosnay, Plaintiffs and Counter Defendants in the district
court.
2. Appellants were represented in the district court and are represented in this
court by Wm. Charles Bundren, Esq. of Frisco, Texas.
Wm. Charles Bundren, Esq.
Texas State Bar No. 03343200
WM.CHARLES BUNDREN & ASSOCIATES LAW GROUP, PLLC
2591 Dallas Parkway
Suite 300
Frisco, Texas 75034
Telephone: 214.808.3555
Facsimile: 972.624.5340
E-mail: Charles@bundrenlaw.net
3. Appellee, and Defendant and Counter-plaintiff in the district court is:
Ameripro Funding, Inc
4. Appellee in this court and Defendant and counter-Plaintiff were represented
in the district court and are represented in this court by;
Susan Burton, Esq.
State Bar No. 03479350
GRAVES DOUGHTERY HEARON & MOODY
P.C.
401 Congress., Suite 2200
Austin, Texas 78701
Telephone: (512) 480-5600
Telecopier: (512) 480-5862 (facsimile)
E-mail: sburton@gdhm.com
1
5. The district court trial Judge who signed the temporary injunction order that
is the subject of this appeal is the Hon. Gisela D Triana Judge Presiding for the
345th Judicial District of Travis County, Texas
2
STATEMENT REGARDING ORAL ARGUMENT
Appellants believe that oral argument will assist the court in reviewing the rules of
applicable law to this important case. Appellants do not believe that this case can be
determined on the basis of the briefs alone. Oral argument will assist the court in
being able to reach the correct result. Appellants request that the court set this matter
for oral argument.
3
TABLE OF CONTENTS
PAGE
IDENTITY OF THE PARTIES AND COUNSEL 1
STATEMENT REGARDING ORAL ARGUMENT 3
TABLE OF CONTENTS 4
INDEX OF AUTHORITIES 7
STATEMENT OF THE CASE 14
ISSUES PRESENTED FOR REVIEW 15
STATEMENT OF FACTS 15
SUMMARY OF THE ARGUMENT 18
STANDARD OF REVIEW 20
ARGUMENT AND AUTHORITIES 21
I. THE TEMPORARY INJUNCTION ORDER IS VOID
BECAUSE IT DOES NOT COMPLY WITH THE
REQUIREMENTS OF RULE 683 AND THERE IS NO
EVIDENCE IN THE RECORD TO SUPPORT
THE ELEMENTS NECESSARY TO OBTAIN
A TEMPORARY INJUNCTION. 21
II. THE DISTRICT COURT ERRED IN APPLYING
THE NON-SOLICITATION PROVISIONS OF THE
CONTRACTS TO REAL ESTATE HOMEBUILDERS
AND CONDOMINIUM DEVELOPERS, REAL ESTATE
SALES AGENTS, AND OTHER REAL ESTATE
PROFESSIONALS INVOLVED IN THE REAL
ESTATE INDUSTRY BECAUSE THEY ARE NOT
"CUSTOMERS" OF AMERIPRO UNDER THE
PLAIN READING OF THE CONTRACTS. 27
4
III..THE DISTRICT COURT ERRED IN CONCLUDING
THAT RESIDENTIAL HOME AND CONDOMINIUM
BUILDER, AND REAL ESTATE SALES AGENT
CONTACT INFORMATION IS A TRADE SECRET BECAUSE
SUCH INFORMATION IS PUBLIC INFORMATION AND
CAN NEVER BE DETERMINED TO BE A TRADE SECRET,
AND IS NOT THE CONFIDENTIAL AND
PROPRIETARY INFORMATION OF AMERIPRO. 33
IV. THE DISTRICT COURT ERRED IN GRANTING THE
TEMPORARY INJUNCTION BECAUSE AMERIPRO FAILED
TO PROVE PROBABLE, IMMINENT AND IRREPARABLE
INJURY CAUSED BY THE PREVIOUS POSSESSION OF
CONFIDENTIAL INFORMATION OF AMERIPRO. 39
V. THE DISTRICT COURT ERRED IN GRANTING THE
TEMPORARY INJUNCTION BECAUSE AMERIPRO
HAS AN ADEQUATE REMEDY AT LAW FOR
CONTRACTUAL DAMAGES AND THERE IS NO
IRREPARABLE INJURY SUFFICIENT TO
JUSTIFY THE TEMPORARY INJUNCTION. 44
VI. THE DISTRICT COURT ABUSED ITS DISCRETION AND
ENTERED AN OVERBROAD TEMPORARY INJUNCTION IN
WHICH THERE IS NO NEXUS BETWEEN THE ENJOINED
CONDUCT AND ANY IMMINENT AND IRREPARABLE
INJURY TO AMERIPRO. 54
PRAYER 58
CERTIFICATE OF SERVICE 58
CERTIFICATE OF WORD COMPLIANCE 59
APPELLANTS’ APPENDIX TAB
TEMPORARY INJUNCTION ORDER 1
NOTICE OF APPEAL 2
5
SUPPLEMENTAL COUNTER PETITION 3
SUPPLEMENTAL COUNTERCLAIM 4
DAMAGES ALLEGED BY AMERIPRO 5
EMPLOYMENT AGREEMENT 6
6
INDEX OF AUTHORITIES
PAGE
CASES
Adust Video v. Nueces County,
996 S.W.2d 245(Tex. App.--Corpus Christi 1999, no pet.) 22
Allan J. Richardson & Assocs v. Andrews,
718 S.W.2d 833 (Tex. App. -- Houston [14th Dist.]
1986, no writ). 37
Big D Props., Inc. v. Foster,
2 S.W.3d 21 (Tex. App.--Fort Worth 1999, no pet.). 22
Butnaru v. Ford,
84 S.W.3d 198 (Tex. 2002) 44,48
Brandon v. Copper,
591 S.W.2d 553 (Tex. App. -- Amarillo 1979, writ ref'd n.r.e.). 36
Byrd Ranch, Inc. v. Interwest Sav. Assoc.,
717 S.W.2d 452 (Tex. App.--Fort Worth 1986, no writ) 22
Canteen Corp. v. Republic of Tex. Props., Inc.,
773 S.W.2d 398 (Tex. App.--Dallas 1989, no writ) 45,50
Cardinal Health Staffing Network, Inc. v. Bowen
106 S.W.3d 230 (Tex. App.-- Houston [1st Dist.] 2003, no pet. 41,50
Computek Computer & Office Sups. v. Walton,
156 S.W.3d 221 (Tex. App. -- Dallas 2005, no pet.). 54
Cornelison v. Offshore Entm't Corp.,
No. 13-02-00452-CV, 2002 Tex. App. LEXIS 8618, at *4-5
(Tex. App.--Corpus Christi Dec. 5, 2002, no pet.) 22
Dallas Gen. Drivers v. Wamix, Inc.
295 S.W. 873 (Tex. 1956) 47
7
Down Time-South Texas, LLC v. Elps,
2014 Tex. App. LEXIS 3047, 2014 WL 1464320, at *7
(Tex. App. -- Corpus Christi-Edinburg, March 20, 2014, no pet.) 43
Downer v Aquamarine Operators, Inc. ,
701 S.W.2d 238 (Tex. 1985) 20
Electronic Data Sys. Corp. v. Powell,
508 S.W.2d 137 (Tex. Civ. App.-Dallas 1974, no writ). 44
EMSL Analytical, Inc. v Younker,
154 S.W.3d 693 (Tex. App. -- Houston [14th Dist.] 2004, no pet.) 42
Fairfield Estates L.P. v Griffin,
986 S.W.2d 719 (Tex. App. -- Eastland 1999 no Pet) 21.
Farmers Ins. Exch. v. Leonard,
125 S.W. 85(Tex. App. -- Austin 2003, pet. denied). 30
Frey v. Decordova Bend Estates Owners Ass'n
647 S.W. 246 (Tex. 1983) 45
Gallagher Headquarters Ranch Dev., Ltd v. City of San Antonio,
303 S.W,3d 700, 702 (Tex. 2010). 30
Gen. Homes, Inc. v. Wingate Civic Assoc.,
616 S.W.2d 351 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ) 22
Ghidoni v. Stone Oak, Inc.
966 S.W.2d 573, (Tex. App. -- San Antonio 1998, no writ). 21,55
Guy Carpenter & Co. , Inc. v Provenzale,
334 F.3d 459 (5th Cir. 2003) 40
Harbor Perfusion, Inc. v. Floyd,
45 S.W.3d 713 (Tex. App.—Corpus Christi 2001, no pet.) 20
InterFirst Bank San Felipe, N.A. v. Paz Const. Co.,
715 S.W.2d 640 (Tex. 1986) 22
8
Interox Am. v. PPG Indus.,
736 F.2d 194 (5th Cir. 1984) 35,37
Intercontinental Terminals Co. v. Vopak N. Am., Inc,
354 S.W.3d 887 (Tex. App. -- Houston [1st Dist.] 2011, no pet. ) 23
Fasken v. Darby,
901 S.W.2d 591 (Tex. App. -- El Paso 1995, no writ) 24
In re Union Pac. R.R.,
294 S.W.3d 589 (Tex. 2009) 38
In re Bass,
113 S.W.3d 735(Tex. 2003). 38
Kewanee Oil Co. v. Bicron Corp.,
416 U.S. 470 (1974) 36
Kotz v. Imperial Capital Bank,
319 S.W.3d 54 ( Tex. App. -- San Antonio 2010, no pet.) 24
Lamons Metal Gasket Co. v. Traylor,
361 S.W.2d 211 (Tex. App. -- Houston 1962, writ ref'd n.r.e.) 38
Law v. William Marsh Rice Univ.,
123 S.W.3d 786 (Tex. App. -- Houston [14th Dist.] 2003, pet denied) 21
Levine v. Bayne, Snell & Krause, Ltd.,
40 S.W.3d 92 (Tex. 2001) 30
Letson v. Barnes,
979 S.W.2d 414 (Tex. App. -- Amarillo 1998, pet. denied). 26
Matlock v. Data Processing Security, Inc.,
618 S.W.327(Tex. 1981). 55
Mareno v. Baker Tools, Inc.
808 S.W.2d 208 (Tex. App. -- Houston [1st Dist.] 1991, no writ). 24
9
Markel v. World Flight, Inc.
938 S.W.2d 74 (Tex. App. -- San Antonio 1996, no pet.) 47
Minexa Ariz, Inc. v. Staubach,
667 S.W.2d 563 (Tex. App.-- Dallas 1984, no writ). 46,50
M-I, LLC v. Stelly,
2009 U.S. Dist. LEXIS 65866, 2009 WL 2355498 at *7
(S.D. Tex. July 30, 2009) 41
Monsanto Co. v. Davis,
25 S.W.3d 773 (Tex. App.--Waco 2000, pet. denied) 22
NMTC Corp v. Conarroe,
99 S.W.3d 865 (Tex. App. -- Beaumont 2003, no pet.) 42
Numed, Inc. v. McNutt,
724 S.2d 432 (Tex. App. -- Fort Worth 1987, no writ) 37
Noell v. City of Carrollton
431 S.W.3d 682 (Tex. App. -- Dallas 2014, pet denied) 49
Priest v. Tex. Animal Health Comm'n,
780 S.W.2d 874 (Tex. App. -- Dallas 1989, no writ) 49
Primary Health Physicians, P.A. v Sarver,
309 S.W.3d 662 (Tex. App. -- Dallas 2012, no pet.) 42
Progressive Cty. Mut. Ins. v. Kelley,
284 S.W.805, (Tex. 2009) 30
Qwest Comms. v. AT&T Corp,
24 S.W3d 334 (Tex. 2000) 22
Reliant Hosp. Partners v. Cornerstone Healthcare Grp. Holdings, Inc.,
374 S.W.3d 488 (Tex. App. -- Dallas 2012, pet. denied) 37
Reach Group, LLC v. Angelina Group,
173 S.W.3d 834 (Tex. App. -- Houston [14 Dist.] 2005, no pet) 45,47
10
Sands v. Estate of Buys,
160 S.W.3d 684 (Tex. App. -- Fort Worth 2005, no pet.) 35,37
SCM Corp. v. Triplett Co.,
399 S.W.2d 583 (Tex. App. -- San Antonio 1996, no writ) 35
State v. Southwestern Bell Tel Co.,
526 S.W.2d 526, (Tex. 1975). 54
State v. Heal,
917 S.W.2d 6 (Tex. 1996) 20
State & Cty. Mut. fire Ins. v. Macias,
83 S.W.3d 304 (Tex. App.-- Corpus Christi, 2002). 30
Stoner v. Thompson,
553 S.W.2d 150
(Tex. Civ. App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.) 22
Sun Oil Co. v. Whitaker,
424 S.W.2d 216 (Tex. 1968) 44
Tenet Health Ltd. v. Zamora,
13 S.W.3d 464 (Tex. App. -- Corpus Christi 2000, pet. dism'd w.o.j.) 20
Tex. HealthCare Info. Council v. Seton Health Plan, Inc.,
94 S.W.3d 841 (Tex. App.-- Austin 2002, pet. denied) 41
Town of Palm Valley Texas v. Johnson,
87 S.W.3d 110 (Tex. 2001), 49
The Republican Party of Texas v. Dietz,
940 S.W.2d 86 (Tex. 1997). 21, 55
Tranter, Inc. v. Liss,
2014 Tex. App. LEXIS 3398, 2014 WL 1257278 at *7
(Tex. App. -- Fort Worth, March 27, 2014 no pet.) 43
Tri-State Pipe and Equiq, Inc. v S. Cnty Mut. Ins. Co.,
8 S.W. 394 (Tex. App.-- Texarkana 1999, no pet.) 45
11
Twister B.V. v. Newton Research Partners,
364 S.W.3d 428 (Tex. App. -- Dallas, no pet.) 35
Rimkus Consulting Group, Inc. v. Cammarata,
255 F.R.D. 417 (S.D. Tex. 2008) 40
Sharma v. Vinmar Int'l Ltd.,
231 S.W.3d 405 (Tex. App. -- Houston [14th Dist.] 2007, no pet.) 40
Tom James Co. v Mendrop,
819 S.W.2d 251 (Tex. App.--Fort Worth 1991, no writ) 52
Univ. Interscholastic League v. Torres,
616 S.W.2d 355 (Tex. Civ. App.--San Antonio 1981, no writ) 22
Villalobos v Holguin,
208 S.W.2d 871 (Tex. 1948) 21
Walling v. Metcalfe,
863 S.W.2d 56 (Tex. 1993) 20,44
Webb v. Glenbrook Owners Ass'n, Inc.
298 S.W.3d 374 (Tex. App. -- Dallas 2009, no pet.) 49
Wissman v. Boucher,
240 S.W.2d 278(Tex. 1951) 35,37
W. R. Grace & Co. v. Henson,
2007 Tex. App. LEXIS 6771, 2007 WL 2389547 at *3
(Tex. App. -- Corpus Christi August 23, 2007, no pet.) 40,52
STATUTES
Tex. Civ. Rem. Code §134A.002(6) Passim
Rules
TEX. R. CIV. P. 683 Passim
12
OTHER AUTHORITIES
BLACK'S LAW DICTIONARY 348 (5th ed. 1979) 32
UNIFORM TRADE SECRETS ACT 36
13
STATEMENT OF THE CASE
Plaintiffs, Oak Mortgage Group, Inc. (referred to herein as "Oak"), Michael
H. Nasserfar, (referred to herein as "Nasserfar"), Michael E. Task (referred to
herein as "Task") and Tycord R. Gosnay, (referred to herein as "Gosnay") (referred
to herein collectively as “Appellants") sued Ameripro Funding, Inc. (referred to
herein as "Ameripro") (see, Clerk’s Record, (hereinafter referred to as “CR ___”)
at 3-39) for, inter alia, breach of contract and unfair business practices. Nasserfar,
Task and Gosnay were formerly at will employee residential loan origination
officers for Ameripro who resigned on January 16, 2015 from Ameripro and then
began working as residential loan origination officers for Oak. Ameripro answered
the suit and filed a counterclaim (CR 40-43) against Appellants alleging, inter
alia, breach of contract by Nasserfar, Task and Gosnay, and subsequently filed an
application for temporary injunction. (CR 44-68).
The district court heard evidence on Ameripro's application for temporary
injunction on May 26 and May 27, 2015. On June 16, 2015, the Hon. Gisela D.
Triana, Judge presiding, entered a Temporary Injunction Order. (See Appendix
attached to this Brief referred to as "App. ___" at 1; CR at 223-227 ). Appellants
perfected their accelerated appeal to this court from the Temporary Injunction
Order on July 6, 2015 ( App. 2; CR 230-235).
14
ISSUES PRESENTED FOR REVIEW
The issues presented for review are:
1. Whether the Temporary Injunction Order is void because it does not
comply with the requirements of Rule 683 and there is no evidence in the record to
support the elements necessary to obtain a temporary injunction?
2. Whether the district court erred in applying the non-solicitation
provisions of the contracts to real estate homebuilders and condominium
developers, real estate sales agents, and other real estate professionals involved in
the real estate industry because they are not "customers" of Ameripro under the
plain reading of the contracts?
3. Whether the district court erred in concluding that residential home
and condominium builder, and real estate sales agent contact information is a trade
secret because such information is public information and can never be determined
to be a trade secret, and is not the confidential and proprietary information of
Ameripro?
4. Whether the district court erred in granting the Temporary Injunction
because Ameripro failed to prove probable, imminent and irreparable injury caused
by the previous possession of confidential information of Ameripro?
5. Whether the district court erred in granting the Temporary Injunction
because Ameripro has an adequate remedy at law for contractual damages and
there is no irreparable injury sufficient to justify the Temporary Injunction? and,
6. Whether the district court abused its discretion and entered an
overbroad temporary injunction in which there is no nexus between the enjoined
conduct and any imminent and irreparable injury to Ameripro?
STATEMENT OF FACTS
Oak and Ameripro are competitors in the residential loan mortgage
origination business. Nasserfar, Task and Gosnay worked as loan officers for
Ameripro responsible for originating residential mortgage loans. Nasserfar, Task
15
and Gosnay were at will employee's and pursuant to their contracts retained the
right to resign at any time without notice and without cause and, likewise,
Ameripro retained the right to terminate the employment of Nasserfar, Task and
Gosnay at any time without notice and without cause. (See, App. 6 -- employment
agreement; RR at Vol.2 Ameripro Exhibits 9, 10, 11, 13, 15, 16, 17, and 18).
Nasserfar and Task, as they were permitted to do pursuant to their employment
contracts, terminated their employment with Ameripro on January 16, 2015 (RR at
Vol.4 Applicant's Exhibits 2 and 3), and at the time of the resignations, Nasserfar
and Task returned to Ameripro the laptop computers that had been issued to them.
Id. Gosnay resigned on January 15, 2015. (RR at Vol. 4 Applicant's Exhibit 4), and
returned the laptop computer to Ameripro. Nasserfar, Task and Gosnay began
working for Oak on January 19, 2015. The employment agreements with
Nasserfar, Task and Gosnay were drafted by Ameripro and not negotiated by
Nasserfar, Task and Gosnay. (RR at Vol. 3 at 70, L15-25). Ameripro admits that
the employment agreements do not define the term "customer." (RR at Vol. 3 at
71, L1-11).
Ameripro was unhappy that it's at will employee's had decided to resign and
sent demand letters claiming that contact information of home builders and
residential developers was a "trade secret" of Ameripro. (RR at Vol. 4 Applicant's
Exhibit 5). The information that Ameripro contends is a trade secret is readily
16
available in the public domain and can be obtained by a simple Google search to
find contact information of the builders Ameripro claims are trade secrets. (RR at
Vol. 4 Plaintiffs Exhibits 52- 64; RR at Vol. 3 123-126).
At the time of the temporary injunction hearing, Appellants did not have in
their possession any paper or electronic files which Ameripro claimed was its
property. All electronic and paper files were returned to Ameripro prior to the
temporary injunction hearing and non were retained by Appellants. (RR at Vol. 3
at 122, L21 -- 123 L5; Plaintiffs' Exhibit 34 at RR Vol. 4; RR at Vol. 3 at 73 L18-
78, L1, and 85, L6 - 86, L 23; ). Prior to the temporary injunction hearing all
electronic files claimed by Ameripro to be its property were removed from all
electronic devices of Nasserfar, Task, Gosnay and Oak and returned to Ameripro.
Id.
Chad Overhauser, the President of Ameripro, admitted that Ameripro has no
agreements, no contracts and no business relations with homebuilders and
residential developers such as Brohn Homes, Seahome Residences, and Clark
Wilson Builders and does not pay nor receive any money or other consideration
from homebuilders and residential developers for any products or services. (RR
Vol. 2 at 109-111). Overhauser admitted that Ameripro's customers are the
borrowers borrow money from Ameripro to purchase residential real estate. (RR.
Vol 2 115, L9-21).
17
II.
SUMMARY OF THE ARGUMENT
An applicant for a temporary injunction bears the burden of proving that the
temporary injunction and the specific acts which are enjoined are necessary in
order to prohibit imminent and irreparable injury to the applicant. In this case,
Ameripro failed to offer evidence at the temporary injunction hearing of any
imminent injury that would cause Ameripro irreparable injury. In fact, shortly
after the temporary injunction hearing, Ameripro swore that it was entitled to
recover nearly $2 million in damages for breach of the contract. Texas law does
not permit a temporary injunction to enforce a contract where the applicant for the
injunction has an adequate remedy at law to recover contractual damages. There
simply is no imminent injury. And, there is no irreparable harm that was facing
Ameripro. Ameripro failed to sustain its burden of establishing imminent and
irreparable injury which would necessitate the entry of a temporary injunction.
Moreover, the temporary injunction has no nexus to any imminent or irreparable
injury and was not necessary to prohibit Ameripro from suffering and irreparable
injury.
The temporary injunction order does not comply with the requirements of
Rule 683 because it does not explain why the injunction is necessary in order to
prohibit imminent and irreparable injury to Ameripro. The temporary injunction
18
order makes merely conclusions regarding the applicable legal standard without
providing a reasoning or justification for the injunctive relief and why the
injunctive relief is necessary to prevent irreparable injury. Therefore, the
temporary injunction order is void.
The district court did not follow the language of the contract and applicable
law and restrained Appellants from soliciting publicly known residential builders
and developers. The names and contact information of the publicly known
residential builders and developers is not a trade secret because the information is
readily available in the public and can be obtained by doing a simple Google
search. The contract fails to define the term "customer" but at the temporary
injunction hearing Ameripro's president admitted that Ameripro provides loans to
residential borrowers and that the residential borrowers are the customers of the
Ameripro. He also admitted that Ameripro has no contracts, agreements or
business relationships with residential homebuilders and developers. They are not
"customers" of Ameripro and, consequently, the district court abused its discretion
in restraining Appellants from soliciting the homebuilders.
The temporary injunction order is overbroad and there is no nexus between
the restrictions in the temporary injunction order and the need to protect Ameripro
from imminent and irreparable injury. The temporary injunction order erroneously
fails to limit the restrictions on solicitation to one (1) year after the termination of
19
the employment contracts, and compelled Appellants to turn over forensic images
of their electronic devices and to cease and desist from using their electronic
devices including cell phones, hard drives and laptops which they had used in their
ordinary and daily business practices. There is no justification for this compelling
order and there is no nexus between this provision of the temporary injunction
order and any imminent or irreparable injury.
STANDARD OF REVIEW
The standard of review for the grant or denial of a temporary injunction is
abuse of discretion. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex.
App.—Corpus Christi 2001, no pet.) (citing, Walling, 863 S.W.2d at 58; Tenet
Health Ltd. v. Zamora, 13 S.W.3d 464, 468 (Tex. App.—Corpus Christi 2000, pet.
dism'd., w.o.j.)). However, a trial court abuses its discretion when it acts arbitrarily
and unreasonably, without reference to guiding rules or principles, or misapplies
the law to the established facts of the case. Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241-42 (Tex. 1985). There is no particular deference to legal
conclusions of the trial court and a de novo standard of review applies when the
issue turns on a pure question of law. Zamora, 13 S.W.3d at 468; see State v. Heal,
917 S.W.2d 6, 9 (Tex. 1996). "[A] trial court abuses its discretion by entering an
overly-broad' injunction which grants 'more relief' than a plaintiff is entitled to by
enjoining a defendant from conducting lawful activities or from exercising legal
20
rights." Harbor Perfusion, 45 S.W.3d at 717, (citing Fairfield Estates L.P. v.
Griffin, 986 S.W.2d 719, 723 (Tex. App.—Eastland 1999, no pet.); The Republican
Party of Texas v. Dietz, 940 S.W.2d 86, 93 (Tex. 1997); Villalobos v. Holguin, 146
Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948); Ghidoni v. Stone Oak, Inc., 966
S.W.2d 573, 583 Tex. App.—San Antonio 1998, no writ)). For reasons argued
herein, the temporary injunction granted by the district court is overly broad, not
based upon the evidentiary record and an abuse of discretion by the district court
and, consequently, the temporary injunction should be dissolved. A district court
abuses its discretion if it misapplies the law to the established facts of the case,
Law v. William Marsh Rice Univ., 123 S.W.3d 786, 792 (Tex. App.--Houston
[14th Dist.] 2003, pet. denied), or if it acts arbitrarily and unreasonably, without
reference to guiding rules or principles, or if Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
ARGUMENT AND AUTHORITIES
I.
THE TEMPORARY INJUNCTION ORDER IS VOID BECAUSE IT
DOES NOT COMPLY WITH THE REQUIREMENTS OF RULE 683 AND
THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT THE
ELEMENTS NECESSARY TO OBTAIN A TEMPORARY INJUNCTION.
The temporary injunction order is void because it does not comply with the
strict requirements of Rule 683 of the Texas Rules of Civil Procedure. Rule 683
21
provides that every order granting an injunction must "set forth the reasons for its
issuance" and "be specific in its terms." TEX. R. CIV. P. 683. That is, the order
must provide a "detailed explanation of the reason for the injunction's issuance."
Adust Video v. Nueces County, 996 S.W.2d 245, 249 (Tex. App.--Corpus Christi
1999, no pet.). This requirement is mandatory and must be strictly followed. Qwest
Comms. v. AT&T Corp, 24 S.W3d 334, 337 (Tex. 2000); InterFirst Bank San
Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640, 641 (Tex. 1986); Monsanto Co. v.
Davis, 25 S.W.3d 773, 788 (Tex. App.--Waco 2000, pet. denied); Big D Props.,
Inc. v. Foster, 2 S.W.3d 21, 22-23 (Tex. App.--Fort Worth 1999, no pet.). If an
order fails to comply with these requirements, it is void and should be dissolved.
Qwest Comms., 24 S.W3d at 337; InterFirst Bank, 715 S.W.2d at 641; Monsanto
Co., 25 S.W.3d at 788.
When a temporary injunction is based in part on a showing that the applicant
would suffer irreparable harm if the injunction is not issued, Rule 683 requires the
order to state precisely why the applicant would suffer irreparable harm. See, State
v Cook United, Inc. 464 S.W.2d 105,106 (Tex. 1971); Monsanto Co., 25 S.W.3d at
788 (finding a temporary injunction order to be void under Rule 683 because it
stated only that plaintiffs "will suffer probable injury in the event that such writ of
temporary injunction is not issued"); Byrd Ranch, Inc. v. Interwest Sav. Assoc., 717
S.W.2d 452, 453-55 (Tex. App.--Fort Worth 1986, no writ) (same where order
22
stated only that plaintiff "will suffer irreparable harm for which it has no adequate
remedy at law"); Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358
(Tex. Civ. App.--San Antonio 1981, no writ) ("Even though there were allegations
in the appellee's petition for injunction which may have justified the issuance of the
writ, the mere recital of 'no adequate remedy at law' and 'irreparable harm' in the
order lacks the specificity required by Rule 683."); Gen. Homes, Inc. v. Wingate
Civic Assoc., 616 S.W.2d 351, 353 (Tex. Civ. App.--Houston [14th Dist.] 1981, no
writ) (finding that a temporary injunction order did not satisfy Rule 683 "because
it only states the trial court's conclusion that immediate and irreparable harm will
result if the injunction is not granted, with no specific reasons supporting the
conclusion"); Stoner v. Thompson, 553 S.W.2d 150, 151 (Tex. Civ. App.--Houston
[1st Dist.] 1977, writ ref'd n.r.e.) (finding a temporary injunction order insufficient
under Rule 683 and noting that "[t]he conclusion [in the order] that the situation is
harmful [to the plaintiff] is not a reason why injury will be suffered if the
interlocutory relief is not ordered"); see also Cornelison v. Offshore Entm't Corp.,
No. 13-02-00452-CV, 2002 Tex. App. LEXIS 8618, at *4-5 (Tex. App.--Corpus
Christi Dec. 5, 2002, no pet.) (not designated for publication) (finding a temporary
injunction order void under Rule 683 where order stated only that "[t]he Court
finds that immediate and irreparable injury, loss or damage as alleged will result to
plaintiff unless Defendant is forthwith restrained as requested"); and
23
Intercontinental Terminals Co. v. Vopak N. Am., Inc, 354 S.W.3d 887, 899 (Tex.
App. -- Houston [1st Dist.] 2011, no pet. ) ("Rule 683 mandates that a trial court
order granting a temporary injunction must explain in the order its reasons for
believing that the applicant has shown it will suffer injury if interlocutory relief is
not granted."). The temporary injunction order in this case does not explain in the
order the reasons the district court believes that Ameripro will suffer irreparable
injury if a temporary injunction is not granted and, thus, the temporary injunction
order is void because it does not comply with the strict and mandatory
requirements of Rule 683.
Rule 683 requires that the injunction order state the reasons why an injury is
imminent and irreparable and why an adequate remedy at law does not exist with
detail. The Rule requires that the order state specifically why the injury is
imminent and what injury will be suffered by the applicant if the injunctive relief is
not granted. Cook United, 464 S.W.2d at 106: Kotz v. Imperial Capital Bank, 319
S.W.3d 54,56 ( Tex. App. -- San Antonio 2010, no pet.); International Bhd. of
Elec. Workers Local Un. v Becon Constr. Co., 104 S.W.3d 239, 243 (Tex. App. --
Beaumont 2003, no pet.); Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App. -- El
Paso 1995, no writ); and, Mareno v. Baker Tools, Inc. 808 S.W.2d 208, 210 (Tex.
App. -- Houston [1st Dist.] 1991, no writ). A temporary injunction "that fails to
identify the harm that will be suffered if it does not issue must be declared void
24
and be dissolved. This rule operates to invalidate an injunction even when the
complaining party fails to bring the error to the trial court's attention." Fasken, 901
S.W.2d at 593.
Here, the temporary injunction order makes mere conclusions and does not
provide any explanation or description of why the extraordinary remedy of a
temporary injunction is needed in order to prevent imminent injury to Ameripro.
The temporary injunction order merely concludes that "Ameripro has met its
burden to establish a probable right of recovery and likelihood of success on the
merits"; but the temporary injunction order does not comply with the requirements
of the Rule 683 by providing the grounds or explaining why the alleged injury to
Ameripro is imminent, or irreparable, or why an adequate remedy at law does not
exist for damages. The temporary injunction order merely concludes that
"Ameripro will suffer a probable, imminent and irreparable injury" but provides no
explanation of why the injury is imminent or, further why the injury is irreparable.
The order merely concludes that "Ameripro does not have a legal remedy that is
adequate in lieu of injunctive relief" but does not provide the necessary description
or grounds supporting why Ameripro does not have a remedy for breach of
contract in damages.
Nowhere in the temporary injunction order is there any description or
explanation of why any injury to Ameripro is imminent. There is also no
25
explanation or description in the temporary injunction order relating to any
"customers" of Ameripro that Appellants unlawfully solicited. And, there is no
explanation in the temporary injunction order regarding any solicitation of "Brohn
Homes, Seaholm Residences or Clark Wilson Builders." On its face, the temporary
injunction order fails to comply with the requirements of Rule 683 and, as a result,
is void and should be dissolved.
The temporary injunction applicant carries the burden to establish all of the
necessary elements that would entitle the applicant to a temporary injunction. At
the temporary injunction hearing, the applicant, Ameripro, must introduce
competent evidence to support all of the necessary elements required to secure a
temporary injunction including an injury that is imminent and a lack of any other
legal remedy. Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App. -- Amarillo 1998,
pet. denied). There is no evidence in the record of this appeal that would support
any conclusion that Ameripro does not have an adequate remedy at law in damages
for the alleged breach of the contract by Nasserfar, Task and Gosney. There is no
evidence in the record that Ameripro cannot recover damages and no evidence that
Ameripro made any effort to attempt to calculate its contract damages.
Furthermore, there is no evidence in the record of any "imminent injury" to
Ameripro caused by Appellants' possession of alleged confidential information of
Ameripro prior to the temporary injunction hearing. In fact, the undisputed
26
evidence is that all confidential information of Ameripro -- both paper and
electronic -- was returned to Ameripro prior to the temporary injunction hearing
(RR at Vol. 4 Applicant's Exhibit 4; RR at Vol. 3 at 122, L21--123, L5; Plaintiffs'
Exhibit 34 at RR Vol.4; RR at Vol 3 at 73 L18-- 78, L1 and 85, L6 -86, L23.), and,
consequently, there is no basis for any injunction related to the alleged confidential
information of Ameripro. Furthermore, there is no evidence in the record that
Appellants solicited any "customers" of Ameripro except those "customers" of
Appellants that existed prior to the time that they were employed by Ameripro in
which they are permitted to solicit under the express wording of the employment
contracts. In other words, there is no basis and no evidence in the record of any
solicitation of "customers" that would violate any contract. And, in addition, there
is simply no evidence in the record that this temporary injunction was necessary
because of an imminent injury to Ameripro. Consequently, based on the failure of
the temporary injunction order to comply with Rule 683 and the failure of
Ameripro to carry its burden of presenting competent evidence supporting the
elements necessary for a temporary injunction, the temporary injunction in this
case is void and should be immediately dissolved.
II.
THE DISTRICT COURT ERRED IN THE TEMPORARY INJUNCTION
ORDER IN APPLYING THE NON-SOLICITATION PROVISIONS OF
THE CONTRACTS TO REAL ESTATE HOMEBUILDERS AND
CONDOMINIUM DEVELOPERS, REAL ESTATE SALES AGENTS, AND
27
OTHER REAL ESTATE PROFESSIONALS INVOLVED IN THE REAL
ESTATE INDUSTRY BECAUSE THEY ARE NOT "CUSTOMERS" OF
AMERIPRO UNDER THE PLAIN READING OF THE CONTRACTS.
The contracts only prohibit the solicitation of "any customer" of Ameripro
for a period of one (1) year following the termination of Nasserfar's and Task's
employment with Ameripro. Several paragraphs in several employment
agreements provide generally the same verbiage as follows:
"5.(e) For a period of one year following the termination of the Employee's
employment with the Company, the Employee agrees that he will not, directly or
indirectly, for his benefit or for the benefit of any other person, firm or entity do
any of the following:
(i) solicit from any customer, payor or supplier doing business with the
company as of the Employee's termination, business of the same or of a similar
nature to the business of the Company with such customer, payor or supplier:
...
Notwithstanding anything to the contrary contained in the foregoing,
the prohibition contained in Section 5(e)(i) and 5(e)(ii) shall not apply to any
customer of Employee that existed prior to employment with the Company,
provided the customer and their loan is not being serviced by the Company."
(Emphasis added).
( App.6; RR Vol. 4 at Applicant's Exhibit 14). The employment agreements were
drafted by Ameripro. (RR at Vol. 3 at 70, L15-25).
The employment agreements on their face do not define the terms
"customer" and Ameripro confessed that there are no definitions of the terms in the
agreements (RR at Vol. 3 at 71, L1-11) But the exception to the prohibition on
solicitation applies to "any customer of Employee that existed prior to employment
28
with the Company, provided the customer and their loan is not being serviced by
the Company." (Emphasis added) Ameripro is in the business of loaning money to
customers to purchase residential real estate. (RR Vol. 2 at 109-111; 115, L9-21).
This paragraph of the employment agreement clearly defines the term "customer"
to refer to residential loan borrowers, not homebuilders or residential developers.
The district court erred as a matter of law in concluding that the term "customer"
applies to residential homebuilders, residential condominium developers, and other
real estate professionals such as real estate sales agents, and in granting a
temporary injunction prohibiting solicitation of "Brohn Homes, Seaholm
Residences and Clark Wilson Builders" (See, App. 1 at 4). This construction
of the employment agreement by the district court is contrary to the language and
intent of the agreement. The district court's construction of the employment
agreement to define the term "customer" to include residential homebuilders,
residential condominium developers, and other real estate sales professionals such
as real estate agents creates a latent ambiguity in the agreement. It was not the
intent of the agreement. The intent of the agreement was to define the term
"customer" to mean only residential loan borrowers since Michael Nasserfar and
Michael Task are licensed residential mortgage loan officers and Ameripro is in
the business of loaning money to borrowers to enable them to purchase residential
real estate. Any other construction of these terms in the employment agreement is
29
ambiguous and the ambiguity must be construed against the drafter of the
agreement -- Ameripro. Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95
(Tex. 2001); State & Cty. Mut. fire Ins. v. Macias, 83 S.W.3d 304, 307 (Tex. App.-
- Corpus Christi, 2002).
A latent ambiguity in a contract occurs when a contract is unambiguous on
its face, but an ambiguity arises due to some collateral matter when the contract is
applied to the particular subject matter. Progressive Cty. Mut. Ins. v. Kelley, 284
S.W.805, 807 (Tex. 2009); and, Farmers Ins. Exch. v. Leonard, 125 S.W. 85, 65
(Tex. App. -- Austin 2003, pet. denied). The district court's construction of the
employment contract term "customer" to include residential homebuilders,
residential condominium developers, and other real estate sales professionals such
as real estate agents is not only erroneous but such construction creates a latent
ambiguity and, as such, cannot be the basis upon which a temporary injunction can
be sustained. Gallagher Headquarters Ranch Dev., Ltd v. City of San Antonio, 303
S.W,3d 700, 702 (Tex. 2010).
Alternatively, the term "customer" is referred to in both Section 5(e)(i) and
5(e)(ii) of the employment agreement; but, it is also referred to in the paragraph of
the agreement which excludes the non-solicitation prohibition as to "any customer
of Employee that existed prior to employment with the Company." Therefore, if
the term "customer" is to be construed as including residential homebuilders,
30
residential condominium developers, and other real estate sales professionals such
as real estate agents, then the non-solicitation prohibition does not apply to any
residential homebuilders, residential condominium developers, and other real
estate sales professionals such as real estate agents that Michael Nasserfar or
Michael Task did business with prior to their employment with Ameripro. This is
the clear reading on the agreement; however, the temporary injunction order fails
to include a finding that these "customers" can be solicited because the contracts
exempt these customers from the solicitation restrictions However, this
construction of the employment agreement is not necessary if the agreement is
correctly interpreted to mean that the term "customer" refers to borrowers and does
not include any residential homebuilders, residential condominium developers, and
other real estate sales professionals such as real estate agents. The intent of the
agreement was only to limit the solicitation to residential loan borrowers of
Ameripro unless Michael Nasserfar or Michael Task were the loan officers for the
residential loan borrowers prior to their employment with Ameripro -- an instance
in the industry known as a refinance. No evidence establishes that neither Michael
Nasserfar nor Michael Task ever solicited loans from any residential loan
borrowers of Ameripro and, thus, if a proper construction of the employment
contract is utilized, there is no legal basis for a temporary injunction prohibiting
the solicitation of "Brohn Homes, Seaholm Residences, and Clark Wilson
31
Builders" (see, Temporary Injunction Order, App. 1; CR 223-227 at 3-4) since
Nasserfar and Task are in complete compliance with all of their lawful obligations
under the contracts as properly construed.
A "customer" is generally defined as "one who regularly or repeatedly
makes purchases of, or has business dealings with, a tradesman or business."
BLACK'S LAW DICTIONARY 348 (5th ed. 1979). The preferred definition of
"customer" by Webster's New International Dictionary is "one who regularly or
repeatedly makes purchases of, or has business dealings with a tradesman or
business house; one who customarily has dealings with a business establishment."
Ameripro confessed at the temporary injunction hearing that it does not have any
direct business dealings with and does not loan money to residential homebuilders,
residential real estate agents or residential developers. ( RR at Vol. 2 at 109-111).
There are no Texas cases which define a "customer" as one who refers a borrower
to a lender or mortgage company. There is no Texas common-law or statutory law
that would define a mortgage company's "customer" as anyone other than the
"borrower" of money from the mortgage company and there is no statutory or
common law in Texas that would define a mortgage company's customer as a
residential real estate homebuilder, residential condominium builder, licensed real
estate agent or sales agent, or any other professional involved in the real estate
industry. It is clear that the term "customer" in the employment agreements was a
32
reference to borrowers who borrow money from Ameripro -- a company that is in
the business of lending money for the purchase of residential real estate. Id.
Ameripro's contention that residential homebuilders, condominium developers,
licensed real estate sales agents or other professionals in the real estate industry are
its "customers" is without merit, and the district court's construction of the
employment agreements to bar solicitation of residential real estate homebuilders,
residential condominium builders, residential real estate agents or other
professionals involved in the real estate industry is erroneous as a matter of law.
Consequently, the portion of the temporary injunction which prohibits the
solicitation of "Brohn Homes, Seaholm Residences, and Clark Wilson Builders"
(see, Temporary Injunction Order, App.1; CR 223-227) is legally erroneous and
this portion of the temporary injunction should be dissolved because the non-
solicitation provisions apply only to residential loan borrowers, not builders.
III.
THE DISTRICT COURT ERRED IN CONCLUDING THAT
RESIDENTIAL HOME AND CONDOMINIUM BUILDER, AND REAL
ESTATE SALES AGENT CONTACT INFORMATION IS A TRADE
SECRET BECAUSE SUCH INFORMATION IS PUBLIC INFORMATION
AND CAN NEVER BE DETERMINED TO BE A TRADE SECRET, AND IS
NOT THE CONFIDENTIAL AND PROPRIETARY INFORMATION OF
AMERIPRO
The district court's finding and conclusion that residential home and
condominium builder, and licensed real estate sales agent contact information is a
33
confidential and proprietary trade secret belonging only to Ameripro is erroneous
as a matter of law. The contact information of residential home and condominium
builder, and licensed real estate sales agent is not a secret and is not property of or
a trade secret or confidential and proprietary information belonging exclusively to
Ameripro. The contact information of residential home and condominium
builders, and real estate sales agents is generally known and is widely and readily
ascertainable by proper means through the public domain. (RR at Vol 4 Plaintiffs'
Exhibits 52-64; RR at Vol. 3 123-126). The contact information of residential
home and condominium builders, and real estate sales agents is easily obtainable
from the websites sponsored and authored by the residential home and
condominium builders, and real estate sales agents, their public advertising, their
marketing brochures, their business cards, Google searches, Bing searches, trade
Association journals, publications and website searches, public offices where they
conduct business, and other publicly available information. Id. It is no secret and it
is not confidential and proprietary information belonging to Ameripro. And
because it is no secret, and particularly no secret limited to Ameripro, the district
court's conclusion in the temporary injunction order regarding trade secrets is
erroneous.
To establish that the contact information of residential home and
condominium builders, and real estate sales agents is Ameripro's confidential and
34
proprietary trade secret, Ameripro must prove that (1) it has taken reasonable efforts
to keep the information secret, and (2) that the information has actual or potential
independent economic value to third parties because it is generally unknown and not
readily ascertainable by proper means. Tex. Civ. Rem. Code §134A.002(6)
(emphasis added); Twister B.V. v. Newton Research Partners, 364 S.W.3d 428, 437
(Tex. App. -- Dallas, no pet.). To be protected the confidential and proprietary
information trade secret must be substantially secret and unknown to the public or
not ascertainable by the public using proper means. Wissman v. Boucher, 240 S.W.2d
278, 280 (Tex. 1951).
The word "secret" means that the proprietary information is not generally
known or readily available to the public and, conversely, information that is generally
known in the industry, readily accessible by independent investigation, or publicly
disclosed is not a secret and is not confidential or proprietary information belonging
only to Ameripro. Interox Am. v. PPG Indus., 736 F.2d 194, 201-02 (5th Cir. 1984);
Sands v. Estate of Buys, 160 S.W.3d 684, 690-91 (Tex. App. -- Fort Worth 2005, no
pet.) (identities of corporation's clients could easily be acquired by others); SCM
Corp. v. Triplett Co., 399 S.W.2d 583, 586 (Tex. App. -- San Antonio 1996, no writ)
(plaintiff's customer list could be compiled by calling physicians and hospital
administrators and asking for the name of their supplier).
35
Information is "generally unknown" if individuals who would derive an
economic benefit from the information are unaware of the information or cannot
ascertain the information through proper means -- such as public websites, Yellow
Pages, and advertising materials. See, UNIFORM TRADE SECRETS ACT
("UTSA") §1 cmt. Ameripro failed to carry its burden at the temporary injunction
hearing of proving that the alleged confidential and proprietary trade secret
information is not readily ascertainable because it is not available in trade journals,
reference books, published materials, advertising materials or websites. See, Tex.
Civ. Prac. & Rem. Code §134A.002(6)(A) ("CPRC"). In 2013, Texas adopted
the Texas Uniform Trade Secrets Act ("TUTSA") codified at Civ. Prac. & Rem.
Code §134A.001 et. seq. To meet its burden, Ameripro must prove that the alleged
confidential and proprietary trade secret information could not have been
ascertained by independent development, independent research, and not by any
other means that would be proper. See, CPRC §134A.002(4). Prior to the adoption
of the TUTSA, Texas common-law similarly required that the alleged proprietary
information be secret. The proprietary information must have a modicum of
originality to separate it from every day knowledge. Kewanee Oil Co. v. Bicron
Corp., 416 U.S. 470,476 (1974), and information that can be accumulated from the
public domain does not qualify as proprietary and confidential trade secret
information. Brandon v. Copper, 591 S.W.2d 553, 556 (Tex. App. -- Amarillo
36
1979, writ ref'd n.r.e.). Likewise, general skill, knowledge and experience, abstract
ideas, methodologies and practices and procedures required by law do not qualify
as proprietary confidential trade secrets. Numed, Inc. v. McNutt, 724 S.2d 432, 434
(Tex. App. -- Fort Worth 1987, no writ).
The information that Ameripro contends is a proprietary and confidential
trade secret must not be information generally known or readily available to the
public, and Ameripro did not meet its burden to prove that the information was not
generally known or readily available to the public at the temporary injunction
hearing. Reliant Hosp. Partners v. Cornerstone Healthcare Grp. Holdings, Inc.,
374 S.W.3d 488, 499 (Tex. App. -- Dallas 2012, pet. denied); and, Allan J.
Richardson & Assocs v. Andrews, 718 S.W.2d 833, 837 (Tex. App. -- Houston
[14th Dist.] 1986, no writ). So, for example, information that is generally known
in a particular industry, readily ascertainable by inspection or independent
investigation, or publicly disclosed is not considered a confidential and proprietary
trade secret. Interox Am. v. PPG Indus., 736 S.W.194, 201-02 (5th Cir. 1984);
Sands v. Estate of Buys, 160 S.W.3d 684, 690-91 (Tex. App. --Fort Worth 2005, no
pet.) (identities of corporation's clients could easily be acquired by others and, thus,
is not confidential and proprietary trade secret information); and, Wissman v.
Boucher, 240 S.W.2d 278, 281 (Tex. 1951) (general knowledge available to the
public does not qualify as a confidential and proprietary trade secret).
37
In addition, Ameripro failed at the temporary injunction hearing to address
several of the factors as set forth in the Restatement (3d) of Unfair Competition
§39 reporter's note cmt. d. First, is the information known outside Ameripro's
business? The court should assess the extent to which the alleged confidential and
proprietary trade secret is information that is outside of the Ameripro's business,
and is information only known to the Ameripro. The court should consider the
extent to which the alleged confidential and proprietary trade secret information is
generally known in the residential real estate market in Austin and the surrounding
communities. Lamons Metal Gasket Co. v. Traylor, 361 S.W.2d 211, 213 (Tex.
App. -- Houston 1962, writ ref'd n.r.e.) (Machines were generally known to the
basket and metal industry and were not a trade secret). Specifically, customer lists
that contain information readily discoverable by independent means would not
qualify as a protectable confidential proprietary trade secret. Numed, Inc. v.
McNutt, 724 S.2d 432, 435 (Tex. App. -- Fort Worth 1987, no writ); (customer lists
could be compiled by calling physicians and hospital administrators and asking for
the name of their supplier and, thus, does not qualify); SCM Corp. v. Triplett Co.,
399 S.W.2d 583, 586 (Tex. App. -- San Antonio 1966, no writ) (the customer lists
could be ascertained by anyone and, thus, is not confidential and proprietary trade
secret information).
38
Second, what is the level of difficulty to duplicate the information? The
court should assess the ease or difficulty with which others could properly acquire
or duplicate the information. In re Union Pac. R.R., 294 S.W.3d 589, 592 (Tex.
2009); and In re Bass, 113 S.W.3d 735, 742 (Tex. 2003). These factors weigh
heavily in rejecting Ameripro's contention that the contact information of real
estate homebuilders and other professionals in the real estate business is a
confidential and proprietary trade secret belonging only to Ameripro, and
Ameripro failed to prove at the temporary injunction hearing that such information
is a trade secret. The information clearly is not confidential, not proprietary and not
secret. Because of Ameripro's failure to present or offer evidence or to rebut the
public nature of this information, the District Court erred in concluding that there
was any trade secret status to the contact information of real estate homebuilders
and other professionals in the real estate business and, consequently, trade secrets
is an improper basis for granting the temporary injunction.
IV.
THE DISTRICT COURT ERRED IN GRANTING THE TEMPORARY
INJUNCTION BECAUSE AMERIPRO FAILED TO PROVE PROBABLE,
IMMINENT AND IRREPARABLE INJURY CAUSED BY THE PREVIOUS
POSSESSION OF CONFIDENTIAL INFORMATION OF AMERIPRO.
Where is the probable, imminent and irreparable injury to Ameripro from
Appellants' alleged previous possession of alleged confidential information? No
injury or harm was established by Ameripro at the temporary injunction hearing,
39
and certainly no imminent injury. There is no irreparable injury existing in the
record to support the temporary injunction clauses related to the alleged
confidential information or alleged trade secrets. Ameripro failed to prove
probable and imminent irreparable injury caused by the previous possession by
Appellants of Ameripro's alleged confidential information. It is improper for the
district court to assume irreparable injury when there is no proof of misuse of
confidential information by Appellants. W.R. Grace & Co. v. Henson, 2007 Tex.
App. LEXIS 6771, 2007 WL 2389547, at *3 (Tex. App.—Corpus Christi Aug. 23,
2007, no pet.). The obligation not to use confidential information also does not bar
a former employee from using the general knowledge, skill, and experience that
the employee acquired during the employment to compete with the former
employer. Rimkus Consulting Group, Inc. v. Cammarata, 255 F.R.D. 417, 443
(S.D. Tex. 2008); Sharma v. Vinmar Int'l, Ltd., 231 S.W.3d 405, 425 (Tex. App.—
Houston [14th Dist.] 2007, no pet.). Here, there is no reason to infer that
Appellants did or would use Ameripro's confidential information because at the
time of the temporary injunction hearing Appellants did not have any confidential
information in their possession (see, RR at Vol. 3 at 122, L21-123,L5; Plaintiffs'
Exhibit 34at RR Vol.4; RR at Vol.3 at 73 L18-78, L1 nad 85, L6-- 86, L23) and do
not need such information in their current positions given their extensive industry
knowledge. See Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459, 469 (5th
40
Cir. 2003) (declining to infer that former employee would probably use the
information).
The purpose of injunctive relief is to halt wrongful acts that are threatened or
in the course of accomplishment, rather than to grant relief against past actionable
wrongs or to prevent commission of wrongs not imminently threatened. See Tex.
Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 853 (Tex.
App.--Austin 2002, pet. denied). Although an injunction is a preventive device,
injunctive relief is improper when the party seeking the injunction has mere fear or
apprehension of the possibility of injury. Harbor Perfusion, Inc. v. Floyd, 45
S.W.3d 713, 716 (Tex. App.--Corpus Christi 2001, no pet.)
No legal presumption of use of confidential information exists under Texas
law. Texas courts have declined to apply the inevitable disclosure doctrine when
the former employee does not have possession of confidential information or has
not used any such alleged confidential information with his current employer, M-I,
L.L.C. v. Stelly, 2009 U.S. Dist. LEXIS 65866, 2009 WL 2355498, at * 7 (S.D.
Tex. Jul. 30, 2009); Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d
230, 242 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Ameripro offered no
evidence of any past improper use of any alleged confidential information by
Appellants, and, as a matter of law, there can be no future improper use of
confidential information since the record establishes, without debate, that
41
Appellants no longer possess any confidential information of Ameripro. (RR at
Vol. 3 at 122, L21-123,L5; Plaintiffs' Exhibit 34at RR Vol.4; RR at Vol.3 at 73
L18-78, L1 nad 85, L6-- 86, L23). Ameripro cannot rely upon the "inevitable
disclosure doctrine" to support its burden to prove irreparable harm caused by the
Appellants previous possession of alleged confidential information. There is no
evidence of irreparable harm, or any injury at all, suffered in the past or in the
future by the Appellants previous possession of alleged confidential information of
Ameripro and certainly no injury that is imminent. Therefore, the district court
erred in granting the temporary injunction because there is no probable and
imminent irreparable injury to Ameripro resulting from Appellants previous
possession of alleged confidential information.
Despite the employment contracts and Texas statutes, Ameripro is still
required to prove imminent and irreparable injury in the interim if a temporary
injunction is not entered. America failed to prove any imminent injury and
certainly no irreparable harm. In 2012, the Dallas Court of Appeals held that
employment contracts and statutes regarding non-compete and non-solicitation
covenants do not replace the common law requirement for injunctive relief that an
applicant show imminent and irreparable injury to obtain a temporary injunction.
Primary Health Physicians, P.A. v. Sarver, 390 S.W.3d 662, 664-65 (Tex. App.—
Dallas 2012, no pet.). The Sarver court then joined its sister courts of appeals in
42
holding that employment contracts and statutes do not preempt the requirements
for obtaining temporary injunctive relief. Id. at 665 (citing EMSL Analytical, Inc. v.
Younker, 154 S.W.3d 693, 695 (Tex. App.—Houston [14th Dist.] 2004, no pet.);
and NMTC Corp. v. Conarroe, 99 S.W.3d 865, 867-68 (Tex. App.—Beaumont
2003, no pet.)). The Sarver court agreed with the reasoning of these cases that
employment contracts in Texas statutes do "not supplant the common law
requirements for a pretrial temporary injunction." Id. Since Sarver issued in 2012,
other Texas courts of appeals have agreed that evidence of a probable, imminent,
and irreparable injury in the interim is a necessary element for a temporary
injunction. See Tranter, Inc. v. Liss, No. 02-13-00167-CV, 2014 Tex. App. LEXIS
3398, 2014 WL 1257278, at *7 (Tex. App.—Fort Worth Mar. 27, 2014, no pet.)
(mem. op.) (section 15.52 does not apply to temporary injunctions); Down Time-
South Texas, LLC v. Elps, 13-13-00495-CV, 2014 Tex. App. LEXIS 3047, 2014
WL 1464320, at *7 (Tex. App.—Corpus Christi-Edinburg Mar. 20, 2014, no pet.)
(mem. op.) (requiring proof of injury). Therefore, an applicant seeking a temporary
injunction must show a probable, imminent, and irreparable injury in the interim
before trial to sustain its burden to be entitled to a temporary injunction. Ameripro
failed to do so.
There is no evidence in the record of any probable, imminent and irreparable
injury that Ameripro would suffer if a temporary injunction was not entered. In
43
fact, the record establishes, without rebuttal or conflict, that all of the confidential
information alleged by Ameripro was returned to Ameripro prior to the temporary
injunction hearing and no paper or electronic copies of any confidential
information was retained by Appellants. (RR at Vol. 3 at 122, L21-123,L5;
Plaintiffs' Exhibit 34at RR Vol.4; RR at Vol.3 at 73 L18-78, L1 nad 85, L6-- 86,
L23). Since the record conclusively establishes that Appellants, at the time of the
temporary injunction hearing, did not possess any confidential information of
Ameripro, Ameripro has failed to meet its burden to establish a probable, imminent
and irreparable injury in the interim caused by the alleged confidential information,
and the district court abused its discretion in entering a temporary injunction
regarding electronic files, electronic media, and confidential information.
V.
THE DISTRICT COURT ERRED IN GRANTING THE TEMPORARY
INJUNCTION BECAUSE AMERIPRO HAS AN ADEQUATE REMEDY AT
LAW FOR CONTRACTUAL DAMAGES AND THERE IS NO
IRREPARABLE INJURY SUFFICIENT TO JUSTIFY THE TEMPORARY
INJUNCTION.
The purpose of a temporary injunction is to preserve the status quo of the
litigation's subject matter pending a trial on the merits. Butnaru v. Ford, 84 S.W.3d
198, 204 (Tex. 2002), citing, Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993);
and Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex. Civ. App.-
Dallas 1974, no writ). The Texas Supreme Court emphasized that "[a] temporary
44
injunction is an extraordinary remedy and does not issue as a matter of right",
citing Walling, 863 S.W.2d at 57 and that "[t]o obtain a temporary injunction, the
applicant must plead and prove three specific elements: (1) a cause of action
against the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim." Butnaru, 84 S.W.3d at 204, citing,
Walling, 863 S.W.2d at 57; and, Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218
(Tex. 1968). The probable injury element requires a showing that the harm is
imminent, the injury would be irreparable, and that the plaintiff has no other
adequate legal remedy. Zamora, 13 S.W.3d at 468.
An irreparable injury exists if the party injured cannot sufficiently be
compensated in damages or the amount of damages is immeasurable by pecuniary
standards. Id. (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d
398, 401 (Tex. App.--Dallas 1989, no writ)). The contract provisions at issue here
"will not be enforced by an injunction where the party seeking the injunction has
failed to show that without injunctive relief he will suffer irreparable injury for
which he has no adequate legal remedy." Reach Group, L.L.C. v. Angelina Group,
173 S.W.3d 834, 837-38 (Tex. App.--Houston [14th Dist.] 2005, no pet.).
Although an injunction is a preventive device, injunctive relief is improper
where the party seeking the injunction has mere fear or apprehension of the
possibility of injury. Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d
45
246, 248 (Tex. 1983). A prerequisite for injunctive relief is actual injury, the threat
of imminent harm, or another's demonstrable intent to do that for which injunctive
relief is sought. Tri-State Pipe and Equip., Inc. v. S. Cnty. Mut. Ins. Co., 8 S.W.3d
394, 401 (Tex. App.—Texarkana 1999, no pet.). An injunction will not issue if
damages are sufficient to compensate the applicant for any wrong committed by
the respondent and if the damages are subject to measurement by an ascertainable
pecuniary standard. Tom James Co. v. Mendrop, 819 S.W.2d 251, 253 (Tex. App.--
Fort Worth 1991, no writ), and Minexa Ariz., Inc. v. Staubach, 667 S.W.2d 563,
567 (Tex. App.-- Dallas 1984, no writ). The party requesting the injunction has the
burden of negating the existence of adequate legal remedies. Minexa Ariz., Inc.,
667 S.W.2d at 567; and Cardinal Health, 106 S.W.3d at 235. The burden is on the
applicant (Ameripro) to prove that its damages cannot be calculated, not on the
non-movant (Appellants) to disprove that notion. See Reach Group, L.L.C., 173
S.W.3d at 838. Ameripro failed to carry that burden because it produced no
evidence, either express or implicit, that its damages are simply too speculative to
be calculated and, after the temporary injunction hearing swore that it had nearly
$2 million in damages (CR Supp. 2 filed August 31 2015 at 17) and, additionally,
that it was entitled to disgorgement damages and a reasonable royalty from
Appellants. (See, App. 3,4 and 5 at 3-6,16-17: CR Supp. 2 filed August 31, 2015 at
3-6, 16-17).
46
Ameripro failed to establish or offer any evidence that Appellants intended
to or were violating any provision of the contract and, specifically, there is no
evidence that Appellants had possession of any of the alleged confidential and
proprietary files (paper or electronic) of Ameripro at the time of the temporary
injunction hearing. In fact, the evidence establishes, without rebuttal from
Ameripro, that all of the electronic files had been deleted from all electronic
devices of the Appellants prior to the temporary injunction hearing (RR at Vol. 3 at
73 L18-78, L1 and 85, L6 -- 86, L23 -- testimony of Lee Whitfield) and, thus, there
is no basis for the temporary injunction clauses with respect to the paper or
electronic alleged confidential and proprietary records and files of Ameripro. In
addition, Ameripro failed to establish that Ameripro had a probable, imminent and
irreparable injury in the interim that could not be compensated by damages and,
thus, the temporary injunction was improperly granted by the district court.
A district court abuses its discretion in granting a temporary injunction
unless "it is clearly established by the facts that one seeking such relief is
threatened with an actual irreparable injury if the injunction is not granted." Markel
v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex. App.—San Antonio 1996, no pet.)
(quoting Dallas Gen. Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879
(Tex. 1956)). And evidence of fear, apprehension, and possibilities is not sufficient
to establish any injury, let alone irreparable injury. Id. at 79-80. To demonstrate
47
probable injury or harm, an applicant must show an injury for which there can be
no real legal measure of damages or none that can be determined with a sufficient
degree of certainty, i.e., a non-compensable injury. Marketshare Telecom, L.L.C. v.
Ericsson, Inc., 198 S.W.3d 908, 925-26 (Tex. App.—Dallas 2006, no pet.).
The party seeking injunctive relief carries the burden to demonstrate an
irreparable injury. See Reach Group, L.L.C. v. Angelina Group, 173 S.W.3d 834,
838 (Tex. App.--Houston [14th Dist.] 2005, no pet.). An injury is considered
irreparable if the party cannot be adequately compensated in damages, or if those
damages are incapable of calculation. Butnaru, 84 S.W.3d at 204; Reach Group,
L.L.C., 173 S.W.3d at 838. Generally, however, courts do not enforce contractual
rights by injunction, because an applicant who may recover breach-of-contract
damages can rarely establish an irreparable injury and accompanying inadequate
legal remedy. Butnaru, 84 S.W.3d at 211; Reach Group, L.L.C., 173 S.W.3d at
838.
It is improper for a district court to enforce contractual rights by injunction
"because a party can rarely establish an irreparable injury and an inadequate legal
remedy when damages for breach of contract or available." Butnaru v. Ford Motor
Co., 84 S.W.3d 198, 211 (Tex. 2002), citing, Canteen Corp. v. Republic of Tex.
Props., Inc. 773 S.W.2d 398, 401 (Tex. App. -- Dallas, 1989, no writ), and
Chevron U.S.A. , Inc. v Stoker, 666 S.W.2d 379, 382 (Tex. App. Eastland 1984,
48
writ dism'd). The district court erred in enforcing a contract between the parties
when the legal remedy of damages was available to Ameripro.
Under common law, the applicant seeking injunctive relief must demonstrate
four elements to be entitled to an injunction: (1) the existence of a wrongful act; (2)
the existence of imminent harm; (3) the existence of irreparable injury; and (4) the
absence of an adequate remedy at law. Devon Energy production company, L.P. v.
McCarver, ____S.W.3d ___, 2015 Tex App. LEXIS 8241, (Tex, App. -- Waco,
August 6, 2015, no pet.), citing, Noell v. City of Carrollton, 431 S.W.3d 682, 712
(Tex. App.—Dallas 2014, pet. denied); Webb v. Glenbrook Owners Ass'n, Inc., 298
S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.); Priest v. Tex. Animal Health
Comm'n, 780 S.W.2d 874, 875 (Tex. App.—Dallas 1989, no writ).
It is no excuse that §65.001 of the Texas civil practice and remedies code
does not set forth in these elements specifically since the principles governing
courts of equity govern injunction proceedings under §65.001. See, §65.001 ("The
principles governing courts of equity govern injunction proceedings if not in
conflict with this chapter or other law."). And, Rule 693 of the Texas Rules of
Civil Procedure provides that "[t]he principles, practice and procedure governing
courts of equity shall govern proceedings in injunctions when the same are not in
conflict with these rules or the provisions of the statutes." See, TRCP 693.
49
In Town of Palm Valley Texas v. Johnson, 87 S.W.3d 110, (Tex. 2001), the
Texas Supreme Court rejected the opinion of the Court of Appeals that an
injunction may be granted without a showing of irreparable harm". The court held
that the requirement of equity of showing irreparable harm and a lack of an
adequate legal remedy are prerequisites to obtaining injunctive relief. Town of
Palm Valley Texas, supra, 87 S.W.3d at 111. "For the same reasons as we
explained in Powers, the statute does not permit injunctive relief without a
showing of irreparable harm otherwise required by equity." Town of Palm Valley
Texas, supra, 87 S.W.3d at 111. The Waco Court of Appeals, as recently as August
6, 2015, has affirmed that the Texas Supreme Court "does not permit injunctive
relief without a showing of irreparable harm or injury as otherwise required by
equity." Devon Energy production company, L.P. supra, Tex App. LEXIS 8241
*4, citing, Town of Palm Valley Texas v. Johnson, 87 S.W.3d 110, 111 (Tex.
2001).
Ameripro failed to establish in the district court, and cannot establish
"irreparable injury" which is a necessary element for a temporary injunction
because Ameripro has an adequate remedy at law -- namely, damages. As held by
the Dallas Court of Appeals, "[i]rreparable injury" is stated to be '"an injury of such
nature that the injured party cannot be adequately compensated therefore in
damages, or that the damages which result there from cannot be measured by any
50
certain pecuniary standard."' Canteen Corp. v. Republic of Tex. Props., Inc. 773
S.W.2d 398, 401 (Tex. App. -- Dallas, 1989, no writ), citing, Chevron U.S.A. , Inc.
v Stoker, 666 S.W.2d 379, 382 (Tex. App. Eastland 1984, writ dism'd), and
Minexa Arizona, Inc. v. Staubach, 667 S.W.2d 563, 567 (Tex. App. -- Dallas 1984,
no writ). Because Ameripro has an adequate damage remedy, the temporary
injunction was improper and the district court abused its discretion in granting the
temporary injunction.
"An injury is irreparable if the injured party cannot be adequately
compensated in damages or if the damages cannot be measured by any certain that
pecuniary standard." Devon Energy, supra, Tex App. LEXIS 8241 *4, citing,
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Canteen Corp. v.
Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no
writ).
. Ameripro, the applicant, must establish that there is no adequate remedy at law
for the damages Ameripro seeks. Devon Energy, supra, Tex App. LEXIS 8241 *4,
citing, Millwee-Jackson Joint Venture v. DART, 350 S.W.3d 772, 782 (Tex.
App.—Dallas 2011, no pet.); and Cardinal Health Staffing Network, Inc. v. Bowen,
106 S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2003, no pet.).
In Butnaru, the Texas Supreme Court held that the applicant for the
injunction must establish "in the trial court, in addition to the other temporary-
51
injunction elements, and an inadequate legal remedy." Butnaru, 84 S.W.3d at 204,
210. Even in the context of an employment contract not to solicit, the applicant for
the injunction, Ameripro, must still meet its burden of establishing that it has no
adequate remedy at law and that it cannot calculate or establish damages resulting
from the alleged unlawful breach of the contract not to solicit customers "In the
context of a covenant not to compete, a covenant will not be enforced by an
injunction where the party seeking the injunction has failed to show that without
injunctive relief he will suffer irreparable injury for which he has no adequate legal
remedy." The Reach Group, LLC v. Angelina Group, 173 S.W.3d 834, 836-38
(Tex. App. -- Houston [14th Dist.] 2005, no pet.), citing, Tom James Co. v.
Mendrop, 819 S.W.2d 251, 253 (Tex. App.--Fort Worth 1991, no writ). "Courts
generally will not enforce contractual rights by injunction, because a party can
rarely establish an irreparable injury and an inadequate legal remedy when
damages for breach of contract are available." The Reach Group, LLC, 173 S.W.3d
at 838, citing, Butnaru, 84 S.W.3d at 211. ("An injury is irreparable if the injured
party cannot be adequately compensated in damages or if the damages cannot be
measured by any certain pecuniary standard.") Butnaru, 84 S.W.3d at 204; and see
Cardinal Health Staffing Network, Inc v. Bowen, 106 S.W.3d 230, 235 (Tex. App.-
-Houston [1st Dist.] 2003, no pet.)(quoting Butnaru, 84 S.W.3d at 204); Mendrop,
819 S.W.2d at 253 ("An injunction will not issue if damages are sufficient to
52
compensate the plaintiff for any wrong committed by the defendant and if the
damages are subject to measurement by an ascertainable pecuniary standard.").
And Ameripro, the injunction applicant, has the burden to establish that there is no
adequate remedy at law for damages. The Reach Group, LLC, 173 S.W.3d at 838,
citing, Cardinal Health, 106 S.W.3d at 235.
In W. R. Grace & Co. v. Henson, 2007 Tex. App. LEXIS 6771 (Tex. App. --
Corpus Christie 2007, no pet.), the employee resigned his position with the
employer and accepted a job with one of the employer's competitors. He testified
that he intended to solicit business from customers that he had serviced when
working for the employer, but that he would not disclose any information received
while working for the employer. The employer contended that it would suffer
irreparable injury absent an injunction. However, the appellate court noted that the
employer did not: (1) present any evidence of wrongful acts that were imminently
threatened or in the course of accomplishment, (2) claim that it had lost any
business, or (3) prove that the employee used any confidential information to
solicit business for his new employer. The employer provided no evidence
regarding harm or injuries that could not be remedied through an award of
monetary damages. The Court of Appeals affirmed the district court's denial of the
requested temporary injunction because there was no imminent harm and the
53
applicant for the injunction failed to prove that it's injuries could not be
compensated through the award of monetary damages.
Here, Ameripro failed to prove that it has no adequate remedy at law if the
temporary injunction is not granted. After the temporary injunction was granted,
Ameripro swore that it had suffered approximately $2 million in damages. But, at
the temporary injunction hearing, Ameripro failed to prove that it cannot recover
its contractual damage claims. The district court erred in granting the temporary
injunction because there was no proof of an imminent and irreparable injury.
Ameripro can proceed with its contractual damages claims; but the temporary
injunction should be dissolved.
VI.
THE DISTRICT COURT ABUSED ITS DISCRETION AND ENTERED AN
OVERBROAD TEMPORARY INJUNCTION IN WHICH THERE IS NO
NEXUS BETWEEN THE ENJOINED CONDUCT AND ANY IMMINENT
AND IRREPARABLE INJURY TO AMERIPRO.
A district court abuses its discretion when it misapplies the law to
established facts or when it concludes that a temporary injunction should be
granted and such conclusion is not reasonably supported by the evidence. State v.
Southwestern Bell Tel Co., 526 S.W.2d 526, 528 (Tex. 1975). The entry of a
temporary injunction that enjoins lawful as well as unlawful acts is overbroad and
constitutes abuse of discretion. RCI Entm't (San Antonio), Inc. v. City of San
Antonio, 373 S.W.3d 589, 603 (Tex. App. -- San Antonio 2012, no pet.); and,
54
Computek Computer & Office Sups. v. Walton, 156 S.W.3d 221 (Tex. App. --
Dallas 2005, no pet.).
A temporary injunction must enjoin only those acts that are necessary to
protect the applicant from imminent and irreparable injury and must not enjoin acts
that are unnecessary to protect the applicant during the interim before trial from
imminent and irreparable injury. "[A] trial court abuses its discretion by entering
an overly-broad' injunction which grants 'more relief' than a plaintiff is entitled to
by enjoining a defendant from conducting lawful activities or from exercising legal
rights." Harbor Perfusion, 45 S.W.3d at 717, (citing Fairfield Estates L.P. v.
Griffin, 986 S.W.2d 719, 723 (Tex. App.—Eastland 1999, no pet.); The Republican
Party of Texas v. Dietz, 940 S.W.2d 86, 93 (Tex. 1997); Villalobos v. Holguin, 146
Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948); Ghidoni v. Stone Oak, Inc., 966
S.W.2d 573, 583 Tex. App.—San Antonio 1998, no writ)). A temporary injunction
order that goes further than necessary to protect the applicant from imminent
irreparable injury or that does not comply with applicable law is overbroad and an
abuse of discretion. Matlock v. Data Processing Security, Inc., 618 S.W.327, 329
(Tex. 1981).
The temporary injunction order entered by the district court is overbroad and
is an abuse of discretion by the court. Clause (i) of the temporary injunction order
requires Appellants "to provide" "forensic images of all original source media that
55
contains or did contain Ameripro files or information (including but not limited to
flash drives, disks, USB storage devices, external storage devices, hard drives, cell
phones and laptops) (hereinafter collectively the "Media") in the possession,
custody or control of Nasserfar, Task, and Gosnay." (App. 1 at 3) This provision is
overbroad and unnecessary to preserve the status quo until trial. The temporary
injunction order does not set forth an explanation of why Ameripro will be
imminently and irreparably injured if the forensic images are not turned over to
Ameripro, and there is no evidence of imminent or irreparable injury that will
occur to Ameripro if the forensic images are not turned over.
In the same clause (i) of the temporary injunction order, the district court
ordered that "[t]he Media [including hard drives, cell phones and laptops of
Nasserfar, Task and Gosnay which they use every day in their business] from
which the forensic images are made will be preserved and held by" Appellants'
counsel as "attorneys eyes only." In essence, the district court ordered that the hard
drives, cell phones and laptop computers of Nasserfar, Task and Gosnay which
they use in their daily business practices had to be relinquished by them, turned
over to their attorney and held by the attorney without access by Nasserfar, Task
and Gosnay. This provision of the temporary injunction order is unreasonable and
overbroad and an abuse of discretion. The temporary injunction order does not set
forth an explanation of why Ameripro will be imminently and irreparably injured if
56
Nasserfar, Task and Gosnay do not relinquish their hard drives, cell phones and
computers, and there is no evidence of imminent or irreparable injury that will
occur to Ameripro if Nasserfar, Task and Gosnay do not relinquish their hard
drives, cell phones and computers. Ameripro sought this provision of the order to
punish Nasserfar, Task and Gosney for resigning their at will employment with
Ameripro. This provision of the order bears no resemblance to any need for
protection for Ameripro, is overbroad and an abuse of discretion.
Clause (iii) of the temporary restraining order unreasonably restrains "Oak
Mortgage, [and] employees of Oak Mortgage" from "directly or indirectly,
soliciting business from Brohn Homes, Seaholm Residences and Clark Wilson
Builders." There is no contract or fiduciary relationship between Oak Mortgage
and Ameripro and, thus, no legal justification for enjoining all loan officers and
employees of Oak Mortgage from soliciting business from publicly known
homebuilders. The temporary injunction order does not set forth an explanation of
why Ameripro will be imminently and irreparably injured if loan officers and
employees of Oak Mortgage -- other than Nasserrfar, Task and Gosnay -- solicit
business from publicly known homebuilders -- such as Brohn Homes, Seaholm
Residences, and Clark Wilson Builders -- and there is no evidence of imminent or
irreparable injury that will occur to Ameripro if such actions are not enjoined.
57
Clause (iii) of the temporary restraining order is also unreasonable and
overbroad because it does not restrict the prohibition on solicitation to the one (1)
year term as set forth in the employment agreements. (App. 6; RR Vol 4 Plaintiffs'
Exhibit 3). The restriction on solicitation, if properly applied and applicable at all,
is limited to one year from the date that Nasserfar, Task and Gosnay terminated
their employment relationship with Ameripro. Id. this portion of the temporary
injunction order is too broad and, if applicable at all, must be limited to one (1)
year from the date of the termination of the employment relationship which
occurred on January 16, 2015.
PRAYER
For these reasons, Appellants pray that the court dissolve the temporary
injunction.
Respectfully submitted,
/s/ Charles Bundren
WM. CHARLES BUNDREN & ASSOCIATES
LAW GROUP, PLLC
Wm. Charles Bundren, Esq.
Attorney-in Charge
State Bar No. 03343200
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
(214) 808-3555 Telephone
(972) 624-5340 Facsimile
e-mail: charles@bundrenlaw.net
ATTORNEY FOR APPELLANTS
58
CERTIFICATE OF SERVICE
The undersigned certifies that on this 17th day of September, 2015, all
counsel of record were served with a copy of this document by serving the
following:
Susan Burton, Esq.
State Bar No. 03479350
GRAVES DOUGHTERY HEARON & MOODY
P.C.
401 Congress., Suite 2200
Austin, Texas 78701
Telephone: (512) 480-5600
Telecopier: (512) 480-5862 (facsimile)
E-mail: sburton@gdhm.com
ATTORNEY FOR APPELLEE:
__X__by the electronic filing manager pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a),
9.5 (b) (1), 9.5(c) (4)and 9.5(e),
____ by certified mail return receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5
(a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),
__X__ by email at the email address indicated above pursuant to TRAP 6.3, 9.2
(c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),
____ by commercial delivery service deposited with ___________________ on the
date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c)
(4)and 9.5(e),
and/or
____ by fax at the fax number indicated above pursuant to.
TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),
/s/ Charles Bundren
Wm. Charles Bundren, Esq.
59
ATTORNEY FOR:
APPELLANTS
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word and contains 10,967 words, as determined by the computer software's word-
count function, excluding the sections of the document listed in Texas rule of
appellate procedure 9.4(i)(1).
/s/ Charles Bundren
WM. CHARLES BUNDREN & ASSOCIATES
LAW GROUP, PLLC
Wm. Charles Bundren, Esq.
Attorney-in Charge
State Bar No. 03343200
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
(214) 808-3555 Telephone
(972) 624-5340 Facsimile
e-mail: charles@bundrenlaw.net
ATTORNEY FOR APPELLANTS
60
CASE NO. 03-15-00416-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS
OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
MICHAEL E. TASK, AND TYCORD R. GOSNA Y
Appellants
V.
AMERIPRO FUNDING, INC.
Appellee
Appeal from the 345th Judicial District Court
of Travis County Texas
APPELLANTS' APPENDIX
Wm. Charles Bundren, Esq.
Attorney-in-Charge
State Bar No. 03343200
2591 Dallas Parkway
Suite 300
Frisco, Texas 75034
Telephone:214.808.3555
CERTIFICATE OF SERVICE
The undersigned certifies that on this 17th day of September, 2015, all
counsel of record were served with a copy of this document by serving the
following:
Susan Burton, Esq.
State Bar No. 03479350
GRAVES DOUGHTERY HEARON & MOODY
P.C.
401 Congress., Suite 2200
Austin, Texas 78701
Telephone: (512) 480-5600
Telecopier: (512) 480-5862 (facsimile)
E-mail: sburton@gdhm.com
ATTORNEY FOR APPELLEE:
_X_by the electronic filing manager pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a),
9.5 (b) (1), 9.5(c) (4)and 9.5(e),
_ _ by certified mail return receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5
(a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),
_X_ by email at the email address indicated above pursuant to TRAP 6.3, 9.2
(c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),
_ _ by commercial delivery service deposited with on the
date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c)
(4)and 9.5(e),
and/or
_ _ by fax at the fax number indicated above pursuant to.
TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1 ), 9.5(c) (4)and 9.5(e),
/s/ Charles Bundren
Wm. Charles Bundren, Esq.
ATTORNEY FOR:
APPELLANTS
CASE NO. 03-15-00416-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS
OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
MICHAEL E. TASK, AND TYCORD R. GOSNA Y
Appellants
v.
AMERIPRO FUNDING, INC.
Appellee
Appeal from the 345th Judicial District Court
ofTravis County Texas
APPELLANTS' APPENDIX
EXHIBIT 1
DC BK15168 PG52
Flied in The District Court
of Tl'lvis County, TtXII
At
JUN 16 2015
}Q 5Q&.,
&
CAUSE NO. D-1-GN-15-000785
Vtlvl L. Price, 0Jttttet Cltrtc
OAK MORTGAGE GROUP, INC., § IN THE DISTRICT COURT
MICHAEL H. NASSERFAR, MICHAEL §
E. TASK, and TYCORD R. GOSNA Y, §
§
Plaintiffs I Counter-Defendants, §
§
v. § OF TRAVIS COUNTY, TEXAS
§
AMERIPRO FUNDING, INC., §
§
Defendant I Counter-Plaintiff. § 3451h JUDICIAL DISTRICT
TEMPORARY INJUNCTION ORDER
Ameripro Funding, Inc.'s ("'Ameripro") Application for Temporary Injunction, set tbrth
in Defendant and Counter-Plaintiff Ameripro Funding, Inc.'s Counterclaim and Sworn
Application for Temporary Injunction and Permanent Injunction, came on for hearing before the
Court on May 26 and May 27, 2015. Based on the pleadings, the evidence submitted, and the
argument of counsel, the Court finds that Ameripro is entitled to entry of a temporary injunction
against Plaintiffs and Counter-Defendants Michael H. Nasserfar ("Nasserfar"), Michael E. Task
("Task"), Tycord R. Gosnay (''0osnay1'). and Oak Mortgage Group, Inc. ("Oak Mortgage") as
set forth below.
The Court finds that, based upon the evidence, Ameripro has met its burden to establish
that it has a probable right of recovery and likelihood of success on the merits on its claims for
misappropriation of trade secrets a11d confidential and proprietary infonnation, conversion.
breach of fiduciary duty, tortious interference with contract, and breach of contract, in that
Counter-Defendants Nasserfar, Task, Gosnay, and Oak Mortgage have attempted to permanently
destroy Ameripro documents and files, and have taken from Amcripro's computer network and
premises confidential and proprietary information belonging to Ameripro (including but not
1111m llllllllltllllllllllllllllllltlltlllll\111111111
004074910
DC Bt'.15168 PG53
limited to Ameripro's pricing information, general ledgers, profit and loss statements, loan
profitability reports, statements of income, customer and referral lists and contact information,
builder preferences or builder contacts or cell phone numbers, pro formas. concession fees,
borrower information, transaction details, templates, loan set-up sheets, e-mails exchanged using
Ameripro servers, correspondence, and other information that had been stored on Ameripro 's
computer network or in Ameripro offices) (hereinafter "Ameripro Information").
The Court further finds, based upon the evidence, that Ameripro has met its burden to
establish that Ameripro will sufier a probable, imminent, and irreparable injury until trial on the
merits, absent entry of a temporary injunction, in that Ameripro has shown that the full extent of
injury to Ameripro if this Order did not issue would be very difficult to ascertain or quantify. a
future award of damages would not fully or adequately compensate Ameripro, Ameripro does
not have a legal remedy that is adequate in lieu of injunctive relief, and even to the extent that a
legal remedy might be available, its redress will be limited and inadequate. The Court further
finds that the balancing of the equities as between Ameripro and CounterMDefendants Nasserfar,
Task, Gosnay, and Oak Mortgage favors the issuance ofthis temporary injunction, and that this
temporary injunction is necessary to preserve the status quo between the parties pending trial on
the merits.
IT IS THEREFORE ORDERED that Counter-Defendants Nasserfar, Task, Gosnay, and
Oak Mortgage, employees of Oak Mortgage, and other entities acting or purporting to act in
participation or concert with them, arc commanded forthwith to:
(i) within three (3) days ofthis Order, provide to Roy Rector ofR3 Digital Discovery
(Ameripro's forensic computer expert) forensic images of all original source
media that contains or did contain Ameripro files or information (including but
2
224
DC BK15168 PG54
not limited to flash drives, disks, USB storage devices, external storage devices,
hard drives, cell phones, and laptops) (hereinafter collectively the "Media") in the
possession, custody, or control of Nasserfar, Task, and Gosnay (including in the
possession, custody, or control of their attorneys and/or Lee Whitfield of Digital
Discovery), including all bit by bit forensic copies or images. however and
whenever made, including but not limited to, aU such forensic images stored in
any of the following formats: EO 1. LO 1. dd, sO 1, ad 1 and/or gho. The forensic
images of the Media may be reviewed and analyzed by Roy Rector, and by
outside counsel of Ameripro at Graves Dougherty Hearon & Moody ("Graves
Dougherty") as Attorneys' Eyes Only under the Agreed Protective Order. and
Graves Dougherty may show forensic images to in-house counsel tor Ameripro so
long as the images relate to Ameripro. The Media from which the forensic
images are made will be preserved and held by Counter-Defendants' attorney,
Charles Bundren, as Attorneys' Eyes Only under the Agreed Protective Order. If
the parties' counsel can agree upon which information contained in the Media
belongs to the respective parties, without Court intervention, then the parties are
authorized to return the other party's infonnation to it or him. Ameripro will
provide to Mr. Bundren forensic images of the three laptops that Counter-
Defendants Nasserfar, Task, and Gosnay returned to Ameripro on January 15-16,
2015 (it was stated on the record that those forensic images were provided to Mr.
Btindren on May 28,2015 at the hearing).
(ii) desist and refrain from, directly or indirectly, using any of the Ameripro
Informatfon, including but not limited to any of the Ameripro Information
3
225
DC BK15168 PG55
contained on the Media, and from copying, purging, modifying, or destroying any
Ameripro Infonnation (except to make the forensic images for Roy Rector as set
forth above in this Order).
(iii) desist and retrain from, directly or indirectly. soliciting business from Brohn
Homes. Seaholm Residences, and Clark Wilson Builders.
IT IS FURTHER ORDERED that Ameripro remove any reference to Michael Nasserfar
(e.g.• videos, likenesses) from the Ameripro website.
IT IS FURTHER ORDERED that the Parties mediate this case no later than sixty (60)
days from the date of this Order. Such mediation shall take place in Austin, Travis County.
Texas and shall be conducted by a licensed attorney agreed upon by the Parties. Costs of the
mediation shall be shared equaJly by Counter-Defendants and Ameripro.
lT IS FURTHER ORDERED that this matter is set for trial on the merits on February 22,
2016, in the Travis County Courthouse, 1000 Guadalupe Street, Austin, Travis County, Texas
78701.
In accordance with Rule 684 of the Texas Rules of Civil Procedure, the Clerk shall issue
such temporary injunction order upon Ameripro filing with the Court a bond executed by it and
adequate sureties in the amount of $10,00.00. payable to Counter-Defendants, approved and
conditioned as the law requires and such bond shatl remain on file with the Court, as bond for
this Temporary Injunction Order. The Clerk of the Court shall forthwith issue a temporary
injunction in confonnity with the law and the terms of this order.
SIGNEDthis /5dayof ~ ,2015at3.: l~a.m.~.
~o&
HON. GISELA D. TRIANA
.=:
JUDGE PRESIDING
4
226
DC BK.15168 PG56
APPROVED:
GRAVES, DOUGHERTY. HEARON & MOODY, P.C.
401 Congress, Suite 2200
Austin, Texas 78701
(512) 480-5764/Fax (512) 536-9908
c·- !'·-o!
By: ~ ,6J. L~/if2&..4,.....
Susan P. Burton
State Bar No. 03479350
sburton(Qlgdhm.com
Eric G. Behrens
State Bar No. 02050700
ebehrens@gdhm .com
ATTORNEYS FOR DEFENDANT
AMERIPRO FUNDING, INC.
APPROVED AS TO FORM:
WM. CHARLES BUNDREN & ASSOCIATES LAW GROUP, PLLC
2591 Dallas Parkway, Suite 300
(214) 808-3555/Fax (972) 624-5340
By:------~------------------
Wm. Charles Bundren
State Bar No. 03343200
Charles@bundrenlaw.net
ATTORNEYS FOR PLAINTIFFS OAK MORTGAGE GROUP, INC .•
MICHAEL H. NASSERFAR, MICHAEL E. TASK AND TYCORD R. GOSNAY
5
227
CASE NO. 03-15-00416-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS
OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
MICHAEL E. TASK, AND TYCORD R. GOSNA Y
Appellants
v.
AMERIPRO FUNDING, INC.
Appellee
Appeal from the 345th Judicial District Court
of Travis County Texas
APPELLANTS' APPENDIX
EXHIBIT 2
7/6/201511:54:50 AM
Velva L. Price
District Clerk
Travis County
CAUSE NO. D-1-GN-15-000785 0·1-GN-15-000785
OAK MORTGAGE GROUP, INC. IN THE DISTRICT COURT
MICHAEL H. NASSERF AR,
MICHAEL E. TASK
and,
TYCORD R. GOSNA Y,
345th JUDICIAL DTSTRlCT
Plaintiffs,
vs.
AMERlPRO FUNDING, INC., IRA VIS COUNTY, TEXAS
Defendant
PI.. AINTIFFS' AMENDED NOTICE OF ACCELERATED APPEAL
TO THE HONORABLE COURT:
1. OAK MORTGAGE GROUP~ INC. Michael H. Nassettar, Michael E.
Task and Ty R. Gosnay (all hereinafter refe1Ted to collectively as "'Plaintiffs'')
desire to appeal from the Temporary Injunction Order signed by The Honorable
Gisela D. Triana, Judge Presiding, in the above referenced civi I action on June 15,
2015.
2. OAK MORTGAGE GROUP, INC. Michael H. Nassetfar, Michael E.
Task and Ty R. Gosnay appeal to the Third Coutt of Appeals. Austin, Texas.
PLAI~TIFFS' AMENDED NOTICE 01<' ACCELERATED APPEAL PAGEl
233
3. The appeal of this case is an accelerated appeal because it is an appeal
of a Temporary Injunction Order pursuant to the Texas Civil Practice and Remedies
Code §51.104(a){4).
Respectfully submitted,
By: /s/ Charles Bundren
Wl\'1. CHARLES BUNDREN & ASSOCIATES
LAW GROUP~ PLLC
Wm. Charles Bundren, Esq.
Attorney-in Charge
State Bar No. 03343200
2591 Dallas Parkway, Suite 300
Frisco, Texas 75034
(214) 808-3555 Telephone
(972) 624-5340 Facsimile
e-mail: charles@bundrenlaw.net
ATTORNEY FOR PLAINTIFFS
CERTIFICATE OF SERVICE
The undersigned certifies that on this 6th day of July, 2015. all counsel of
record were served with a copy of this document in accordance with Rule 21 a of
the Texas Rules of Civil Procedure by serving the fo11owing:
Susan Burton, Esq.
State Bar No. 034 79350
GRAVES DOUGHTERY HEARON & MOODY
P.C.
40 l Congress., Suite 2200
Austin, Texas 78701
Telephone: (512) 480-5600
Telecopier: (512) 480-5862 (facsimile)
E-mail: sburton~Dgdhm.com
ATTORNEY FOR DEFENDANT:
PLAJ~TIFFS
1
AMENDED NOTICE 0}' ACCELERATED APPEAL PAGE2
234
_X_by the electronic filing manager pursuant to TRCP 21 a( a)( l ),
__ by certitied mail return receipt requested deposited with the United States
Postal Service on the date indicated above pursuant to TRCP 2la(a)(2),
_X_ by email at the email address indicated above pursuant to TRCP 2la(a)(2).
__ by commercia] de1ivery service deposited with - - - - - - - - on the
date indicated above pursuant to TRCP 2la(a)(2), and/or
__ by fax at the fax number indicated above pursuant to TRCP 2la(a)(2).
is/ Charles Bundren
Wm. Charles Bundren, Esq.
ATTORNEY FOR: PLAINTIFFS
PLAI~TIFFS' AMENDED NOTICE OF ACCELERATED APPEAL PAGE3
235
CASE NO. 03-15-00416-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS
OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
MICHAEL E. TASK, AND TYCORD R. GOSNA Y
Appellants
v.
AMERIPRO FUNDING, INC.
Appellee
Appeal from the 345th Judicial District Court
of Travis County Texas
APPELLANTS' APPENDIX
EXHIBIT 3
7/8/2015 5:03:45 PM
Velva L Price
District Clerk
Travis County
CAliSE ~0. D-1-G~-15-000785 0·1-GN-15-000785
OAK MORTGAGE GROUP. INC.. § IN THE DISTRICT COURT
MICHAEL H. ~ASSERF AR, MICHAEL §
E. TASK, and TV CORD R. GOSNA Y, §
§
Plaintiffs I Counter-Defendants, §
§
~ § OF TRAVIS COUNTY. TEXAS
§
AMERJPRO FU~DJNG, INC., §
§
Defendant I Counter-Plaintiff. § 345tn JUDICIAL DISTRICT
COUNTER-Pl.AINTIFF Al\U:RIPRO FllNDING, INC.'S FIRST
AMENDED COUNTERCLAIM AND S\VORN APPLICATION FOR
TEMPORARY AND PERMANENT INJllNCTION, AND AMENDED ANSWER
TO THE HONORABLE JUDGE OF SAID COURT:
AMERIPRO FUNDING, INC. C'Ameripro''l respectfully files this its First Amended
Counterclaim and Sworn Application for Temporary and Permanent Injunction, complaining of
Counter-Defendants Michael H. Nasscrl11r, Michael E. Task, and Tycord R. Gosnay ("Individual
Counter-Defendants") and Oak Mortgage Group. Inc. ("Oak Mortgage"). and An1cndcd Answer.
TI1is Court entered a Temporary Restraining Order on May II, 2015 (the "TRO''), and a
Temporary Injunction on June 16, 2015 (the ..Temporary Injunction"}, based on Counter-
Defendants' theft of Amcripro's confidential information. violations of contractual non-
solicitation provisions, and other misconduct as described in those orders and detailed below.
Amcripro requests that the Court issue permanent injunctive relief lo restrain Counter-
Dercndants from engaging in similar misconduct, in addition to disgorgcmcnt and other relief set
forth herein. Amcripro would respectfully show the Court the following.
A. Introduction: Counter-Defendants' breach of fiduciary duty. misappropriation and
conversion. and breach of contractual ownership and non-solicitation provisions.
1. Amcripro is an Austin-based residential mortgage lender. The Individual
Counter-Defendants are lormer employees who \vorkcd at Amcripro 's branch office in Lakeway,
3
Texas. Nasscrfar served as Branch Manager fCJr the Lakeway branch. Task served as Sales
Manager and co"managed the branch. Gosnay was a loan oniccr and agent or Amcripro. Each
of the Individual Counter-Dcrcndants owed formal fiduciary duties to Amcripro during his
employment with the company.
2. On January 15-16, 2015, the Individual Counter-Defendants abmptly resigned
from Amcripro without prior oral or wl"itten notice. The following Monday, they opened a new
branch office for Ameripro's competitor, Oak Mortgage, two streets away.
3. Amcl"ipro subsequently discovered that the Individual Counter-Defendants had
been secretly transmitting copies of its confidential records to Oak Mortgage, beginning over tlt'o
months before they resigned. Oak Mortgage scanned and downloaded copies of Amc1ipro
reports onto its own computer network. Under contract, common law, and statute, all such
records were the exclusive properly of Amel"ipro, and the Individual Counter-Detcndants were
ban·ed from taking or disclosing that infom1ation, let alone to a competitor.
4. Over one month before they resigned, the Individual Counter-Defendants secretly
reached an agreement under which Oak Mortgage would pay their legal expenses "in the event a
law suit is lilcd" against them by Ameripro. The Individual Counter·Dcfendams continued
working as fiduciaries to Amcripro, however. and used lhcir position of trust with Amcripro to
funnel confidential information to their future employer. By the time they resigned (rom
Amcripro. the Individual Counter-Defendants had assembled and taken thousands of Amcripro
financial spreadsheets, inlcmal reports, and borrowct· data (which they loaded onto thumb drives
and cxtemal storage devices), as well as a bankers box full of Amcripro ·s internal monthly
general ledgers, loan profitability reports, pro formas. statements or income, lcdcrally-protcctcd
lists of Amcripro borrowers, and other conlidcntial property or Amcripro. The Individual
Counter-Defendants deleted hundreds of files and e-mails from Amcripro compuLers, including
4
approximately 911 customer files which Task deleted trom an Amcripro-issucd laptop.
5. The Individual Counter-Defendants also began working in concert with Oak
Mortgage to solicit customers and divert business away lrom Amcripro, again whik they were
still employed and under tiduciary obligations to Amcripro. Five weeks before the Individual
Counter-Defendants resigned from Amerlpro, Oak Mortgage e-mailed Nasser1ar and Task that
·•vou can maintain and solicit to your book of business, and your buildcr:realtor relationships.
You can maintain and solicit to your past customer database." In direct violation or their
fiduciary obligations. the Individual Counter-Defendants proceeded to solicit business secretly
on behalf of Oak Mortgage, even while they continued their employment with Ameripro.
6. For example, Nasscrlar c-mailed Oak Mortgage personnel several weeks before
his resignation from Ameripro, to report on his progress in "dropping in on all builder contacts.''
During Nasscrtar's employment with Amcripro, Oak Mortgage sent him "scripts" to usc in
contacting "All previous clients & database," ··Borrowers in Pipeline," and "Realtors in
Pipeline." Gosnay forwarded an internal Amcripro compilation of customer contacts and closing
preferences to his personal gmail account. lor later usc at Oak Mortgage, Still other texts and c-
mails show that the Individual Counter~Ddendant-; were secretly communicating with Ameripro
customers about their plans to open a competing branch office with Oak Mortgage. even \vhile
still employed with Ameripro.
7. Counter-Defendants' conduct violated multiple duties and prohibitions imposed
on them by contract, statute, and common law. The fact that the Individual Counter-Defendants
began disclosing confidential information to a competitor and soliciting on its behalf even be!'ore
they resigned is particularly unconscionable in light of the fiduciary obligations they still owed to
Ameripro. Oak Mortgage not only aided and abetted those breaches of liduciary duty, but
specifically pressed the Individual Counter-Defendants to supply it with copies or intemal
3
5
con tidential data, and provided scripts and other assistance to help Amcripro 's fiduciaries divct1
customers and business opportunities to Oak Mortgage.' The Individual Countcr-Dctcndants'
fiduciary duties, independent of the contractual non-solicitation and non-disclosure clauses they
signed, barred them lium engaging in such conduct.
8. The infonnation which Counter-Defendants stole provided a detailed blueprint of
the business operations or Amcripro's Lakeway oflicc, which enabled Counter-Defendants to
open a new competing branch in a single business day, less than one-quarter mile awuy. Leaving
aside the confidential nature of its inl(m11ation, Amcripro invested considerable time and
expense in developing the multitude of detailed financial records, spreadsheets. data
compilations, and proprietary forms. By unlawfully taking all of that work product. Counter-
Defendants not only misappropriated Ameripro 's property, but also Ameripro's investment of
time and money in creating it By acting in !lagrant disregard of their fiduciary duties over a
period of several months, Counter-Defendants succeeded in destroying the business operations at
Amcripro's Lake,vay branch, and usurping it for themselves.
9. As a consequence of Countcr-Dctcndants' multiple statutory, common law, and
contractual violations, Ameripro seeks actual and punitive damages against Counter-Dercndants
(including the remedy of disgorgemcnt from all Countcr-Dcfcndants),2 and permanent injunctive
rclicC as detailed below.
1
Fitlelity Nat. Title ins. Co. v. Hean ol Tex. Title Co., :2000 WL 13037 *6 (Tex. App.-Austin Jan. 6,
2000. pet denied) (not design. pub!.) (company 1.mgag\]d in fhlUd and "participated in or conspired to
commit a breach of fiduciary duty" when it "actively encouraged Margos to recruit her co-workers whtk
she was still employed" by a ditTcrcnt entity).
:In re Longview Ener:s.Y Co.,_ S.W.3d -' 2015 WL 2148353 *5 (Tex. 2015} ('"Disgorgement is an
equitable tbrtciturc" applicable if a fiduciary agent ~..:ompctcs with the principal, or usurps an opportunity.
or divctts an opportunity fi:om the principal, or breaches the ''relationship of trust." "The remedy
discourages disloyalty and strengthens fiduciary rdationships by 'strip[ping] the defendant of a wrongful
gain.'"); .ERI Consult. Engrs., Inc. t .. Swinnea, 31 X S.\V.3d R67. R73 (Tex. 2010) (same, and ewn if a
fiduciary did not obtain a benefit, he "may be required to tbrfcit the right to compensation" for his work);
Rcstarement (Th1rd) of Restirution and Unjust Enrichment §§ 40. 43 (conversion. breach of duty).
4
6
B. Background facts in support of Ameriprois equitable and legal claims, and answer.
10. Arneripro is a residential mortgage lending company. By the nature of its lending
business, Amcripro receives loan applications, social security numbers, credit reports, tax
records, asset descriptions, and other private information of consumers.
lndiv;dua/ Counter-Delendams ' access
to Ameripro 's co'!fidentia/ information
Il. Ameripro and its employees are required by law to protect the confidentiality of
such consumer information under the Gramm-Leach-Bliley Act of 1999, Rcgulatjon P, and other
applicable federal and State regulations which guard the J>rivacy of consumers.;
12. For example, under Regulation P, any "list, description, or other grouping'' of
consumers derived in whole or in part from nonpublic sources (such as borrower lists that
Ameripro compiles from its loan records or computer files) is federally protected infon11ation
and may not be disclosed, even if the same lisL could have been derived from publicly available
infonuation. In the course of their employment with Amcripro, the Individual Cmmlcr-
Defendants served as loan originators for Amcripro, and were given access to mortgage
applications, consumer credit scores, loan documentation, fists of Ameripro borrowers and their
loan nun1bers, and other consumer inl(mnation maintained on Ameripro's network which is
con1idential by statute.
13. Counter-Defendants were also given access to Ameripro's confidential and
proprietary infmmation, including monthly general ledgers, profitability reports, and pro fonnas.
The detailed financial and customer infom1ation in Amcripro's internal reports is not generally
known to its competitors, and gives Amcripro a competitive advantage in the marketplace.
3
Chapter 94 of the Orarnm-Leach-Biilcy Act of 1999 ("Privacy - Disclosure of Nonpublic Personal
lnfommtion'') is codified in patt at 15 U.S.C. § 6RO L er seq. Regulation P iscoditicd at I 2 C.P.R.§ I016
(Dec. 21.2011 ). etseq.
5
7
Disclosure of that data to a competitor, such as Oak Mortgage, would enable it to assess the
economic viability of opening an office in the same locale, and to replicate Amcripro's business
operations and jumpstart a competing branch. That is in fact what Counter-Defendants did.
Under both contract and common law, Ameripro
is the e::.:c/usive owner of'such information
14. In sworn testimony, Counter-Defendants admitted that the records they took from
Ameripro were confidential, that they had not obtained those records from any public source, and
that they instead downloaded or printed them from Amcripro 's password-protected computers.
15. Each of the Individual Counter-Defendants signed multiple contracts with
Ameripro. however, in which they agreed that Ameripro is the sole owner of all such property.
Attached as Exhibit A is a Hst of excerpts from a portion of the contracts that the Individual
Counter-Defendants signed with Ameripro, in which they contractually agreed:
(a) that Amcripro is the exclusive owner of all infom1ation to which they were
given access during their employment or which they themselves created,
(b) lhat all of their work product falls within the "work made for hire" doctrine
and is owned exclusively by Ameripro,
(c) that in the event Ameripro is not already deemed the sole owner of all such
information, the Individual Counter-Defendants conlractua!ly assign to
Ameripro any and all right, title, and interest they may have in any of the
information, again vesting exclusive ownership in Amcripro, and
(d) that they will not disclose that infonnation or use it for any purpose other
than pertbm1ing their duties at Ameripro, and upon the tennination of their
employment the Individual Counter-Defendants would return all copies of
Lhat infom1ation to Amcripro, and would not retain, usc, or disclose any
copies or extracts for any purpose.
6
8
16. The Individual Counter-Defendants also contractually agreed that ..all leads and
loans in process are Company's property," that they will not ''take any action to divert such loans
to a competitor or away fi·om Company." and that upon termination they would provide a
"'written account of any and all open leads. business prospects, and/or loans in process as of the
date" of his tem1ination.
17. The contracts which the Individual Counter-Defendants signed supplement the
protections that Amcripro has in its business information under common law. Even in the
absence of an enforceable contractual restriction, the Individual Counter-Defendants and those
acting in concert with them arc barred wtder Texas common law "from using for [their] own
advantage, and to the detriment of [their] fom1er employer, confidential infom1ation m: trade
secrets acquired by or imparted" to them in the course of their employment. 4
18. Likewise, even if any portions of Amcripro's confidential repons could
potentially have been derived from researching public records, Cowtter-Dcfendants were barrcd
from taking a shortcut and copying Ameripro 's compilations of that data. under both common
Jaw and the terms of their contracts. At common law, ..The question is not 'how could he have
secured the knowledge?' but 'How did he?''' Here the Individual Cowtter~Defendants admitted
5
that the information they took from Ameripro could not be tbund publicly. and that they copied it
from Ameripro's protected computer network rather than from any public source.
Individual Counter-Defendams also entered
into enjr)rceahle non-solicitation agreements
19. The Individual Counter~Defcndants' contracts with Amcripro also contain
statutorily enforceable provisions which bar Lhcm from soliciting Ameripro customers and
4
See. e.g., Hill v. McLmze Co., Inc., 2011 WL 56061 at *2 (Tex. App.-Austin 2011. no pet.) (not
design. publ.).
~ ld.
7
9
employees after their termination from the company. 6 Those provisions arc independent of
common law safeguards which bar employees (and certainly fiduciaries) from soliciting for a
competitor during ct11ployment. 7 Nasserfar's and Task's employment agreements provide:
"For a period of one year following the termination of the Employee's employment
with the Company, the Employee agrees that he will not, directly or indirectly, for
his benefit or for the benetlt of any other person, finn or entity, do any of the
following: (i) solicit from any customer, payor or supplier doing business with the
Company as of the Employee's tcnnination, business of the same or of a similar
nature to the business of the Company with such customer, payor or supplier; (ii)
solicit from any known customer, payor or supplier of the Company business oflhe
same or a similar nature to that which has been the subject of a known written or
oral bid, offer or proposal by the Company, or of substantial preparation \\-ith a
view to making such a bid, proposal or o1Ter, within six months prior to the
Employee's termination; (iii) recruit or solicit the employment or services ot: or
hire, any person who was known to be employed by, or a consultant of, the
Company upon tennination of the Employee's employment, or within six months
prior thereto, or (iv) otherwise knowingly interfere with the business of the
Company.''
The only exception to the contractual non~solicitation provision was for a person who had
already been a ..customer" of the employees prior to his employment with Amcripro (even then,
in light of their conunon Jaw fiduciary duties, they could not solicit any such preexisting
customers on behalf of themselves or for a competitor while they were still employed with
Ameripro).
20. On social media, Nasscrfar represented to the public that Amcripro's customers
include ''3 Texas based builders" for whom Amcripro was the lender (and for whom Nasserfar
6
The non~solicitation clauses arc also cnfon.:cable under Tex. Bus. & Comm. Code§ l 5.50, et seq. The
employment agreements promised access to confidential intbrmation. Once these employees were given
such access (including confidential customer files and Ameripro tinancial records), they became bound by
their reciprocal promise not to usc or disclose such information. 111at satisfied rhc "otherwise enforceable
agreement" provisions under Section 15 .50. Excerpts of those reciprocal agreements arc quoted in
Exhibit A to this pleading. The Texas Supreme Court expressly held that "clients' names. billing
infonuation, and pertinent tax and financial information'' constitut``s confidential infmmation for purpost.::s
of enforcing non-compete provisions under Section 15.50. Mann Fmnkfort Srt:in & Lipp Advisors t•.
Fielding, 2g9 S.W.3d 844, 851 (Tex. 2009) (accounting). That holding applies with greater force here, in
light of the federal regulations which make client mortgage information confidential as a matter of statute,
in addition to Amcripro's OV\11 financial records to which Individual Counter-Defendants also had access.
Fideli~J', 2000 WL 13037 *6; ERI, 318 S.W.3d at 873; Longview. 2015 WL 2148353 *5 (Tex. 2015).
7
8
10
claimed to have built a "builder-centric'' model "developed here at Amcripro"), and "builder
partners and other referral groups" whom he stated had a "seamless & successful" mortgage
relationship with Ameripro. Likewise, Task admitted under oath that the non-solicitation
provisions of their contracts barred them from soliciting from Ameripro 's builder and realtor
8
referral sources, and publicly represented that multiple developers were ·'clients'' of Amcripro.
21. Similarly, Gosnay's ''Employment, Confidential Information and Invention
Assignment Agreement" with Ameripro provides the following non~solicitalion clause:
"Interference. I agree that during the course of my employment and for a period of
18 months immediately following the tcm1ination of my relationship with the
Company tor any reason, whether with or without cause, at the option either of the
Co()mpany or myself: with or without notice, I will not, either directly or indirectly,
interfere with the Company's relationships with any customers or clients of the
Company whom I served or othcrv.:ise had direct contact with during the course of
my employment. ln the event that I violate my obligations under this paragraph, I
agree that the 18~month time period will be extended by a period of time equal Lo
that period beginning when I began violating my obligations under this paragraph
and ending when the activities constituting such a violation came to an end."
Similar to Amcripro's contracts with Nasserfar and Task. Gosnay's contract also prohibited him
trom soliciting any employee of Amcripro for 18 months after his employment terminated.
Cotmter-D~f(mdanrs · th~ti r~(Ameripro 's confidential
b~formation commenced months befiJre the employees resigned
22. Counter-Defendants knew that their contracts with Ameripro barred them !rom
using, disclosing, or retaining copies of Amcripro's confidential records. and from assisting a
competitor while still employed with Amcripro, When Gosnay was offered a job in Febmary
2014, Nasserfar even called special attention to those provisions of his contract, writing:
"Employee Confidentiality and Assignment of Inventions Agreement. As with all
Company employees, you will be required as a condition of your employment with
the C.ompany, to sign the endosed standard Employee Confidentiality and
& Transcript of the May 11, 2015 hearing on Arneripro's TRO application, at 49-50. The same
testimony was introduced into evidence at the May 26-27, 2015 hearing on Amt.--ripro's Temporary
lnjw1ction application.
9
11
Assignment of Inventions Agreement."
Nasserfar also advised Gosnay in writing:
"In addition, while you render services with the Company, you will not alisist any
person or entity in competition with the Company, in preparing to compete with the
Company or in hiring any employees or consultants of the Company."
23. Less than one year alier Nasscrfar wrote those words, all three Individual
Counter-Detbndants consciously violated those provisions of their contracts and their fiduciary
obligations. Oak Mortgage actively encouraged and participated in those breaches of duty.
24. Oak Mortgage e.-mailed Nasser(ar on October 30, 2014. asking him to provide
Oak with documents showing the ''currem year's sales production (unil'> & volume)" and the
"previous year's sales production (units & volume)" for Amcripro's Lakeway branch. Nasserfar
the same day e·mailed those totals for both years to Oak Mortgage, beginning a stream of
confidential information that he relayed to Amcripro's competitor over the next 2'lz months.
25. Nasserfar understood that his secret communication of confidential information
with Oak Mortgage subjected him to liability, and understood that his contracts with Amcripro
barred him from soliciting from referral sources. As part of the same October 30 e-mail
exchange, NasserJar gave Oak Mortgage a list of his "Concerns," which included "Lose Centcrra
builder account. Lose Brohn accoWll. Lose some PLR realtors. Lawsuit. Non compete clause.
Old client list with no contact to." Nasserfar also listed "Ramp up time" as one of his concerns.
Nonnally. setting up a new branch office would take several weeks (and typically months) to
accomplish. Over 2 1,~ months before Nasscrfar resigned from Amcripro, he and Oak Mortgage
were already discussing the ramp-up time to set up a competing office. CountcrMDefcndants,
however, ended up skipping the nom1al ramp-up rime by simply copying and downloading
Ameripro 's ledgers, reports, client lists, and even its proprietary templates and lonns.
10
12
26. On November 12, 2014. tor example~ Oak Mortgage's senior vice president c·
mailed Nasscrfar that ''I will need some more information from you." and asked Nasscrfar to
provide multiple categories of internal Ameripro documents by t11at weekend. TI1e items Oak
Mortgage insisted upon included Amcripro's '"Year to Date P&L and Last Year's P&L,"
Amcripro's "J>roduct Mix" with a breakdown of units and volume for each type of loan product,
other Arneripro staff member's "Compensation" (even if Nasscrfar did not anticipate trying to
solicit them to leave), and Ameripro "Pricing'' for three "scenarios/deals" that Nasserfar was
working on at the time so that Oak Mortgage "can compare it to our pricing." Counter-
Defendants sought that infom1ation for Ameripro's Lakeway branch in particular, as they went
Jbrward with their plans to set up a competing office in the same location.
27. The following Monday, November 17, 20 J4, Nasser far gave Oak Mortgage a
copy of Ameripro's internal loan prolitability report at a meeting in Dallas. That report not only
supplied Oak Mortgage with confidential itemized fees and profits for Amcripro's office for the
preceding year, but also a year-to-date lisl of all or the names of borrowers and account numbers
9
for that branch. Oak Mortgage's CEO scanned a copy of the report onto his computer the same
day. The Individual Counter-DeJendants also provided Oak Mortgage with an electronic copy of
an Ameripro loan profitability report, which Oak Mortgage's senior vice president loaded onto
his computer as well.
28. Oak Mortgage gave Nasscrfar a job description which stated that one of his duties
at Oak Mortgage would be to "[e]stablish" and manage the budget for Oak Mortgage's new
Lakeway branch. The Individual Counter-Defendants admitted in testimony that they supplied
1
' The loan profitability rcporr was compiled from nonpublic loan tiles. That by itself would bar
disclosure under Regulation P, even if borrower names could have been obtained by searching deed
records. Moreover. even if Nasscrfar had compiled a list from public sources (he admitted he did not).
Regulation P also barred him from disclosing it ''in a manner that indicates that any ofth.: individuals on
the list is a consumer of a financial institution," such as Ameripro. The nonpublic intbtmation in the
report. such as fees paid by the individual consumers. also barred its disclosure to Oak Mmigagc.
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13
Oak Mortgage with copies of every monthly general ledger report tor 20 I4, giving a blueprint of
every budget item for Ameripro's Lakeway branch for the entire year, including itemized
expenses and credits. Like the other confidential information they took, that data was not
available from any public source, and instead was printed from Ameripro's computer network.
The lndividual Counter-Defendants continued funneling intormation to Amcripro 's competitor
over the following months, including a list of borrowers whose loans were still pending.
29. In the days immediately before they resigned from Amcripro, Counter-Defendants
intensilied their thefis of Ameripro conlidential intl."lmlation. In order to obtain access to
Amcripro's financial infonnation on the Accounting for Mortgage Bankers (AMB) network, a
person must usc his or her password to log onto Ameripro's computer network, and while logged
into that network, usc a second password to Jog onto the AMB network. As a Branch Manager,
Nasscrfar was the only employee at Ameripro's Lakeway office who had been given a second
password to log into the AMB system. The week they resigned, however, Nasscrfar and Task
jointly printed copies of Ameripro 's financial records from AMB, to take with lhcm Lo their new
Oak Mortgage office. They printed and downloaded Amcripro's internal records, including
general ledgers, profitability reportS, pro lotmas, borrmver records, and statements of income.
30. In addition to taking electronic copies ofcontidential records on thumb drives and
external storage devices, they took a bankers box or Ameripro internal reports and personnel
files when they resigned. Task admitted he later gave the bankers box to Gosnay at Oak
Mortgage's new offices, for him to scan as welL Among several thousand other Amcripro
reports, Nasscrlar downloaded copies or loan profitability reports for 2012,2013, and 2014 fium
Amcripro's computers, giving details of the fees and associated profits lor Ameripro during
those years in the same location where Oak Mot1gagc planned to open a competing office,
31. Some of' the most serious examples or Counter-Defendants' thefls include
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14
electronic copies of credit reports for Ameripro borrowers (listing the borrowers' social security
numbers, bank account numbers, and credit scores), and borrowers' loan applications (listing
their social security numbers, employers, income, and other protected consumer infom1ation).
Counter-Defendants also removed copies of personnel records for other Ameripro employees,
including salary information. They admitted that they had no excuse fbr taking such legally
protected consumer and personnel records with them upon their termination from Ameripro.
32. At least as early as December 10, 2014, Gosnay likewise began sending copies of
proprietary templates and fom1s from Ameripro's computer network to Gosnay's personal gmail
account, to use at Oak Mortgage. In one blatant example, Oak Mortgage forgot to remove
Ameripro's address at the boitom of the rcmns, before using the same template for Oak's new
office. By Januaty 13, 20 l 5, just two days before he resigned from the company, Gosnay was
still logging onto his computer at Ameripro and transmitting its confidential infommtion to his
personal gmail account, including details of Ameripro's client concession fees, builder contacts
and cell phone numbers, clients' title company preferences, transaction details. and other
compilations contained in Amet'ipro computer files, and additional proprietary templates and
tbm1s that Ameripro developed lor its business and maintained on its computers. 10 Gosnay then
tried to permanently delete that evidence on Amcripro's computer, including copies of his
forwarded e-mails. bclbre returning the laptop to Ameripro.
w Counter-Defendants have made the irrelevant argument that the identities of builders is information
that can be publicly obtained. CoU11ter-Dcfcndanrs' argument fails to insulate them from liability in at
least three respects. First, Counter-Defendants took Ameripro's llQD.-public compilation, which in tum
included non-public details such as pricing, builder preferences. cell phone numb~rs. and contact
information. Second, even as to any intom1ation that could have independently compiled thlm public
records, they chose instead to log onto Amctipro computers and take Ameripm 's compilation\·. Their
misappropriations sound in both tort and contract. Bancserrices Group, Inc. v. Strunk & Assoc.. 2005
WL 2674985 *3 (Tex. App. -Houston (14th Dist.]2005, pet. denied) (not design. pub!.) (mere fact that a
person supposedly could obtain the same information through legitimate means docs not deprive its
owner of recourse "from those who would secure possession of it by unfair means,'' including taking thm1
a computer to usc in a competing business). Third, the nmHolicitation provisions of their contracts bar
them from soliciting those customers, regardless whether they usc confidential infonnation in doing so.
13
15
Solicitatton ofcustomet~\·.for a competitor. even
while still serving as .fiduciaries for Ameripro
33. As Nasserfar previously wrote Gosnay, dw·ing the Individual Counter~
Defendants' tenure with Ameripro they were not penniitcd to assist anyone ''in competition with
the Company;• or "in preparing to compete with ihe Company." In addition to transmitting
confidential infhnnation to Oak Mortgage, however, the Individual Counter-Defendants began
soliciting business on Oak Mortgage's behalf even while they were still emplo.ved at Amcripro.
34. Over one month before the Individual Counter-Defendants resigned ti·om
Ameripro, Oak Mortgage advised the Ameripro employees that they can ''solicit to your book of
business, and your builder/realtor relationships," and that they that they can ''solicit to your past
customer database." As a further encouragement tor the Individual Counter-Defendants to begin
acting against their principal, the following day Oak Mortgage agreed to indemnify the
employees if they were later sued by Amcripro. One week later, Nasscrfar compiled and c-
mailed Task a list of contact names for several of Amcripro's primary builder clients, including
Ccnterra Homes and Brohn Homes, and a lew days later, reported to Oak Mortgage that he was
driving 200 miles and "dropping in on aU builder contacts.'' (Nassertar reported that progress to
Ameripro's competitor, not to his employer Ameripro.)
35. By January 6, 2015, Oak Mortgage had sent Nasserlar scripts to use for
"Borrowers in Pipeline," "Rea) tors in Pipeline," and "All previous clients & database," including
the advantages of his moving to Oak Mortgage - again while Nasserfar was still employed at
Amcripro. 11 Nasserfar also advised existing Amcripro customers of their plans to open a new
11
Counter- Defendants argued at the Temporary Injunction hearing that •·customer" as used in the non-
solicitation clauses of their contracts is limited to ''boJTowers.'' In testimony, however, they had
previously admitted that "customer" as used in the contracts include the builders which fom1ed the core of
Amcripl'O's business for that branch, and made similar admissions in social media and in c-mails.
including in Nasserfar's e·maillist of"'Conccn1s" quoted above. The Court rc;jectcd Counter-Defendants·
overly narrow det1nition. Even under Coumer-Dctlendants · definition. however, their conduct shows that
14
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Oak Mortgage office, and exchanged texts with builder personnel about standing down until his
resignation notice was received. (As discussed below, Task destroyed his text conmnmications,
erasing evidence of similar communications he had with Ameri pro customers.)
36. While they were still employed in management positions for Ameripro, Nasscrfar
and Task also set up meetings with builder customers and business prospects on behalf of Oak
Mortgage. While still Ameripro employees, they even began scheduling meetings to occur ajter
they resigned, again for the bene lit of Oak Mortgage.
37. Even if no contractual non-solicitation existed at all, Counter-Defendants'
conduct in secretly soliciting Ameripro customers -·"-during a time when they were still serving
in fiduciary roles for Amcripro -is a plain violation of Texas common law. l11eir thcll of
Ameripro's confidential information also assisted them in soli.citing Amcripro clients, enabling
them to open a competing office in just one business day, instead of the months it would
normally take to ramp up an ollicc and begin operations.. Although the Individual Counter-
Defendants were contractually required to give Ameripro a "written account of any and all open
leads, business prospects, and/or loans in process as of the date" of his tcm1inaLion, they also
breached that provision and ialled to provide any such list. After they resigned, they refused to
return calls from Amcripro or otherwise cooperate about upcoming closings, disrupting the
closings that were still in progress and injuring Ameripro's goodwill and builder relationships.
Counter-Dej(mdams ·destruction ofjites and
evidence, including after issuance of the TRO
38. Counter-Defendants also engaged in destruction of Ameripro files and evidence.
they made no pretense of trying to comply with the contracts or common law. Oak Mortgage sent
Nasserfar scripts to use for "Bonowers" in pipcJinc, and advised that the employees could solicit to their
''book of business" and "past customer database" - all of which would be baned even under their
definition. Moreover, regardless of the contractual definition, no employee (let alone a fiduciary) is
pennitted to solicit on behalf of a competitor while still working for his employer.
15
17
TI1e same day that Nasserfa1· resigned on January 16, 20 15, he logged into Amcripro' s computer
network and began systematically deleting files, inducting almost 120 contacts in the Outlook
Contacts folder he had maintained at Ameripro. Nasserfar took additional steps to try to purge
the files trom Amcripro 's computer system altogether, by selecting the option to ''pcm1anently
delete" those tiJes from the "Deleted Jtcms" folder. Task deleted 62 folders (containing 911
customer files) from a laptop that Ameripro had issued to him, before returning it to the
company. Gosnay attempted to permanently destroy all of the evidence that he had been
forwarding Ameripro documents to his personal gmail account.
39. At least as early as December 11,2014, C()Untcr-Dcfendants knew of the potential
lawsuit with Amcripro, as cxempl.ificd by the indemnity that Oak Mortgage had previously given
the Individual Counter-Defendants while they were still fiduciaries of Ameripro. Remnants of
text messages produced by Oak Mortgage show that Task had tcxtcd with his co-conspirators
over the following month, including on the subject of contacting people whom he admitted he
was not allowed to solicit. Nevertheless, Task manually destroyed every lext message that he
had exchanged during his employment \'-'ith the other Counter-Defendants and with Amcripro
customers.
40. At the hearing on Amcripro's request for TRO on May It. 2015, Amcripro
brought Task's destruction of text messages to the Court's attention. In addition to ordering
Counter·Defendants to return all of Ameripro 's infom1ation in whatever medium they possessed
and/or took such infonnation, the Court specifically instructed Counter-Defendants "not to
destroy anything, period:' and later in the hearing repeated >+cto not destroy anything." Counter-
Defendants represented in open court that '"in the meantime, nothing is going to be destroyed."
The bard drive they supplied in response to the TRO, however, showed that Counter-Defendants
subsequently destroyed over 150 tiles, after the TRO issued, and sought to wipe out the evidence
16
18
of that conduct in the unallocated space of the hard drive. Forensic analysis of the hard drive
shows that unallocated lblders have been cleaned and zeroed out: in other words, leaving aside
any destruction of information that might be shown in the original media, confidential
documents which they had copied onto the hard drive copy were deleted atlcr the TRO actually
issued. In the process of destroying such evidence, however, Counter-Defendants overlooked or
were unaware of a Master File Table on the same hard drive. which recorded their destruction of
12
evidence after the TRO issued.
41. This Court has inherent auU1ority to punish such destruction of evidence even if
no TRO had been entered against Counter-Defendants. The tact that Counter-Defendants
destroyed additional evidence after this Court ~:ntcrcd the TRO, ho~.vcvcr, is contempt of court,
particularly in light of this Court's express conunand to Counter-Defendants at the TRO hearing
to desist from destroying anything "period.''
Upon their resignationsjl·om Ameripro, the Individual
Counter-Defimdants' actions have been as agents for Oak ~Mortgage
42. Upon their resignations from Amcripro, the lndividual Counter-Defendants all
became agents of Oak Mortgage. As of January 19, 2015, Nasscrfar was the Vice President of
Austin and Branch Manager for Oak Mortgage, Task was its new Austin Area Sales Manager,
and Gosnay was its Mortgage Loan Officer at the new Lake•way office.
43. As agents of Oak Mortgage, they kept the reams of confidential intbmtation they
took from Ameripro; ranging trom general ledgers to borrower credit reports, and in violation of
the non-solicitation provisions of their contracts, continued snliciting from Amcripro customers.
Counter-Defendants' conduct has been a continuing violation of statute, common law, and
11
~l11c Table shows that 140 file folders were deleted after May 14, 2015 at 1:52 p.m., from the "COC-
002" folder (Michael Task's thumb drive), and that another 12 files were deleted on May 19, 2015. at
1:46 p.m., via the recycle bin of"COC-001'' (Michael Nasserfar's thumb . concession tees,
builder contacts and cell phone numbers. clients' business preferences, transaction
details. proprietary templates, loan set-up sheets, document tbnns,
correspondence, and other Amcripro compilations of information and tonns that
Ameripro developed tor its business), and other duplications of information
located at Ameripro or on Amcripro computers, c-mails, original files or
documents, printouts, photocopies. electronically stored documents, and other
information taken from Amcripro, including any information which identifies or
pertains to customers and rcfetTal suppliers (and contacts with each) with whom
Amcripro did business during the tcnn of the Individual Counter-Defendants'
employment at Ameripro;
v) enjoining Counter-Dclcndants and the other Restrained Parties from using
(including tl·om using in connection with Oak Mortgage's business), or from
transferring or conveying to any third pat1y, or from accessing or granting access
to, any of Lhc documents and information they removed from or transmitted
outside of Amcripro, except to transfer such information to Ameripro (including
but not limited to infom1ation that was contained on Ameripro computers or in
21
23
Amcripro flies, Amcripro's pricing information, client and referral supplier lists,
concession fees, builder conlacts and cell phone nwnbcrs, clients' business
preferences, transaction delai!s, proprietary templates, loan set-up sheets,
document forms, correspondence, and other Ameripro compilations of
information and forms that Amcripro developed for its business), and other
duplications of infom1ation located at Ameripro or on Ameripro computers, e-
mails, original files or documents, printouts, photocopies, electronically stored
documents, and other infonnation taken from Ameripro, including any
information which identifies or pertains to customers and referral suppliers (and
contacts wiLh each) with whom Amcripro did business during the tcm1 of the
Individual Counter-Defendants' employment at Ameripro.
49. Amcripro is a mortgage company which has served the Central Texas area since
2003, and it depends on the goodwill of its customers and referral suppliers to remain in
business. Ameripro has made a significant investment in maintaining good relationships with its
customers and referral suppliers, and marketing its services.
50; As required by the Gramm-Leach-Biiley Act and Regulation P, Ameripro
maintains a sophisticated computer system and internal safeguards to comply vv·ith statutory
requirements and other regulations govcming conlidcntiality of loan information, and to ensure
that customers receive excellent service and protection of their personal and financial
infonnation. Amcripro 's saJcguards or its confidential and proprietary information include
secure-access entry to its premises, log-in requirements to access its computers (including
requiring employees first Lobe registered and accepted through Amcripro's IT department before
receiving log-in credentials), additional log-in safeguards lor loan officers, and similar security
safeguards for federally regulated banks.
22
24
51. Coantcr-Defcndants' conduct m removing confidential and proprietary
information, attempting to solicit from Amcripro's customers and referral suppliers, and the
other conduct set forth above will result (and has already resulted) in loss of customers and
referral suppliers, loss of goodwill, violation of laws which bar misappropriation of in!brmation,
and the loss of and pennanent injmy to the value of Amcripro's confidential infbm1ation.
Ameripro does not have an adequate remedy at law for the same reasons set forth in the
preceding paragraphs, including because Counter-Defendants have wrongfully taken confidential
infonnation belonging exclusively to Ameripro.
52. The injury that will result to Amcripro if Counter-Defendants and the other
Restrained Parties arc not enjoined from the conduct described above would outweigh any injury
that continued enforcement of the tempormy injunction and issuance of the pcnnanent injunction
might cause Counter-Defendants, and would not disservc the public interest. Amcripro has
posted the bond set by the Court in cmmcction with the Temporary Injunction, pending trial on
the merits and issuance of a permanent injunction. and the writs of Temporary 1(\junction have
been issued and served.
D. Breach of fiduciary duty. and knowingly aiding and abetting breach.
53. Amcripro incorporates by reference all factual allegations stated hereinabove.
Each of the Individual Counter-Defendants served in agency roles on behalf of Amcripro, and
consequently owed fiduciary duties to Ameripro as a matter of law. By the nature of their
management duties and access to files (and as detailed in their employment agreements) each of
them was cntmstcd with the most highly coniidcntial client infonnation of Amcripro, including
internal Amcripro financial reports and financial infbm1ation and loan documentation of
consumer clients, which the Individual Counter-Defendants agreed to keep confidential and to
23
usc exclusively for Ameripro's mortgage lending business. 13 Each of them owed a high duty of
loyalty, good faith, fair dealing, honest performance, titll disclosure, and strict accountability to
Ameripro. 14
54. The Individual Countcr~Dcfendants' conduct as detailed above, including
transmittals (while still employed and under agency with Amcripro) of Amcripro's general
ledgers. loan profitability reports, sales by unit and volume, pricing infom1ation, clients and
contact information, templates, and other confidential and proprietary information lor purposes
of using at Oak Mortgage's competing husiness, and their attempted pcnnanent destruction of
Amcripro computer files which identify customers, arc 11agrant violations of fiduciary duty.
Their active solicitation of Amcripro customers on behalf of a competitor, even while they were
stilt employed by Amcripro, is a flagrant violation of liduciary duty. 15 While still employed with
Ameripro and under agency, the Individual Counter-Defendants were in constant communication
with their co-conspirator Oak Mortgage to plan a competing business, using Ameripro
confidential information and its existing builder customers.
55. As a consequence of the Individual Counter-Defendants' violations of fiduciary
duty, and Oak Mortgage's knowing aiding and abetting those breaches of duty, Counter-
Defendants arc jointly and severally liable to Amcripro for its actual damages, and punitive
damages. for which Ameripro seeks recovery. Counter-Defendants are also liable to Ameripro
u Abezter 1i'ucking Co. v. :trizpe, I 13 S.W.3d 503, 50R-09 (Tex. App. - Houston [1'1 Dist.J 2003, no
pet.) (principal and agcr1t is among the formal fiduciary relationships which arise '"as a matter of law").
14
Vogr v. Warnock, 107 S.W.3d 778, 7e:2-83 (Tex. App. - El Paso 2003. pet. denied) ("A fiduciary
owes her principal a high duty of good faith, fair dealing, honest performance, and strict accountability.
. . . In discussing the nature of tiduciary relationships, our Supreme Court has stated that the higher
standards there imposed should rarely be subject to t:xccprions .. _'').
15
Their conduct also violates their common law duty to refrain from using for their own advantage. and
to the detriment of their former employer, confidential infonnation or trade secrets acquired by or
imparted to them in their employment. Employees are held to that common law duty even in the absence
of a fiduciary rdationship. The Individual Counter-Dctbndants' conduct was particularly inexcusable in
that each of them was an employee, agent, and fiduciary to Amcripm while he commincd those acts.
24
26
for disgorgcment, and in the case of the Individual Counter-Defendants, also liable for forfeiture
of compensation (including compensation they received from Ameripro during the period of
their breach), for which Ameripro seeks recovery.
E. Misappropriation and conversion.
56. Ameripro incorporates by reference all factual allegations stated hereinabove.
Counter-Defendants' conduct described above constitutes misappropriation and conversion of
Amcripro's property. Even in the absence of written employment agreements with the
Individual Counter-Defendants, each of the Counter-Defendants is charged with knowledge that
former employees may not use for their own advantage, and to the detriment of their fbnncr
employer Amcripro, confidential infom1ation acquired by or imparted to them in the course of
their employment. Similarly, the employment agreements describe in detail that t1nancial
information, client lists, pricing information, client financial infonnation, and other Ameripro
documents lo which they were given access (or which they themselves created during their
employment) are the sole property of Ameripro, and may not be used or disclosed by the
Individual Counter·Defendants for any purpose other than Amcripro 's business.
57. At least as early as December 10, 2014, Oak Mortgage had reviewed NasserHu's
and Task's employment agreement with Amcripro, and in addition to the knowledge that Oak
Mortgage is presumed to have of Texas common taw, knew of the contractual conJidentiality
provisions. Amcripro also made Oak Mortgage specifically aware of the Individual Counter-
Defendants' employment agreements, to remove any question that its continued retention and
usc of Ameripro proprietary and confidential information was a violation of law and or the
employment agreements. At the spccilic request of Oak Mortgage, however, the Individual
Counter-Defendants secretly e.-mailed and delivered copies of such confidential and proprietary
information as described above for use at Oak Mortgage. Ameripro's competitor, and deleted
25
27
Ameripro computer records. Oak Mortgage retained and used copies of those confidential
records.
58, As a consequence of their acts of misappropriation and conversion, Counter-
Defendants arc jointly and severally Liable to Ameripro for actual damages, and punitive
damages, for which Ameripro seeks recovery.
F. Breach of contract. and tortious interference with contract.
59. Ameripro incorporates by reference all factuaJ allegations stated hereinabove. As
quoted extensively above, Nasserfar's and Task's "Proprietary lnformation Agreement,''
"Confidentiality Agreement," "Non-Disclosure Agreement," and "Employment Agreement,"
Gosnay's "Employment, Confidential Information and Invention Assignment Agreement" and
"Loan Officer Agreement," and the Amcripro employee handbooks with which they
contractually agreed to comply, contain extensive provisions which dctine Amcripro's agreed
ownership of financial information, customer information, pt·icing information, compilations of
client files, and other intbnnation to which they were given access during their employment with
Ameripro, and the Individual Counter-Defendants' contractual obligation not to usc or disclose
any of that information, and not to solicit from or intertere with Ameripro 's customers, suppliers,
payers, or employees tor one year (Nasserfar and Task) and 18 months (Gosnay}.
60. l11e Individual Counter-Defendants' conduct described above, including their
disclosures of confidential information, their misappropriation and conversion of Amcripro's
confidential information, their solicitation of its customers. suppliers, payors, and employees,
and their intentional attempts to destroy Amcripro computer files, not only sound in tort but also
constitute breach of contract. In breach of contract, they also failed to provide a written list of
any and all leads, business prospects. and/or loans in process as of the date of his termination, as
required by their agreements. On account ofthcse multiple breaches of contract and commission
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28
of torts, and their failure to remain "available to help with and participate in the closing process"
despite Amcripro 's attempts to contact them, none of the Individual Counter-Defendants
tcnninatcd his employment in good standing. 16 Oak Mortgage's active encouragement of those
contractual violations constitutes tortious interference with Ameripro 's contracts.
61. Counter-Defendants argue that the Individual Counter-Defendants never received
access to confidential information at Ameripro. In testimony, however, Counter-Defendants
admitted the exact opposite, including the confidential nature of general ledgers, bo!Towcr
infom1ation, and other records they stole. Moreover, as Counter-Defendants acknowledge in
their petition, Ameripro is "a mortgage company that originates residential loans in the State of
Texas." [Second Amended Petition at ~1 3.] Each of the lndividual Counter~Dcfcndants (who
were formerly Ameripro's branch manager, sales manager, and loan officer) routinely had access
to such loan Iiles. Ameripro's client loan riles consequently are confidential as a matter oflaw,
including under the provisions of the Gramm-Leach-Blilcy Act and Regulation P.
62. As a matter of law, such information also satisfies the Texas Supreme Court's
Mann Fran/if(Jrt analysis of confidential information that will support the enforcement of non-
compete and non-solicitation provisions under Tex. Bus. & Comm. Code § 15.50, et seq.
Countcr~Defendants' argument that they never received confidential intonnation during the
course of their employment (and that they cannot be held liable for that reason) is l'rivolous.
63, Counter-Defendants have also argued that the contracts arc unenforceable as
"contracts of adhesion," because the contracts were supposedly presented to them on a ''take it or
16
In the same paragraph which required the Individual Counter-Defendants to provide a written list of
''any and all" leads, prospects, and loans in process, it adds: hProvjded the Employee terminates in good
standing and is available to help with and pa11icipatc in the closins process when requested. he:she will be
eligible for compensation on pending loans that close within 30 days oftcnnination." They failed to meet
any of those prerequisites, tailing to provide the required written list, refusing to be available to help and
participate in closings, and violating the confidentiality. ownership, and non-solicitation provisions of
their contracts. They refused to respond to Amcripro•s multiple attempts to contact them.
27
29
leave it basis'' by Amcripro. That argument not only is factually unttue, but also of no legal
consequence. The Texas Supreme Court has spccificaHy held that "an employer may make
precisely such a 'take it or leave it' oiTcr to its at-will employees." Even if the employer
premises "continued employment on acceptance of new or additional terms," it is entitled to do
so, and the contract is not rendered ..unconscionablc.'' 11 Indeed, Counter-Defendants have
purported to sue under those contracts. even as they simultaneously argue that they are
unentbrccable. Their attacks on enforcement of the contracts arc both factually and legally
without merit.
64. As a consequence of the Individual Counter-Defendants' breaches of contract,
and Oak Mortgage's tortious interference with those contracts. Counter-DefendanLs are liable to
Ameripro for its actual damages, punitive damages (as to Oak Mortgage), and attorneys' fees (as
to the Individual Counter-Defendants), for which Amcripro seeks recovery.
65. In addition, Ameripro is entitled to, and hereby respectfuUy requests, an equitable
extension of the non·solicitation period for a time period equivalent to the duration when
Counter-Defendants were in breach. Their breaches commenced at least as early as December
111
2014, and continued at least through entry of the TRO in this cause on May II, 2015.
G. Violation of Tex. Bus. & Com. Code§§ 143.001-02 (Harmful Access by Computer).
66. Amc1ipro incorporates by reference all factual allegations stated hereinabove. As
11
111 re Halliburton Co .• 80S. W.3d 566 (Tex. 2002). See also Obra Homes, Inc. v. Gonzalez, 2010 WL
2224662 *R (Tex. App.- Corpus Christi 2010, no pet.) (even if an agreement qualifies as a "contract of
adhesion'' because a party has no bargaining power, that in itself docs not render it unconscionable).
1
~ Nationsbuilders Ins. Sen• .. Inc. v. Houston lnt 'fins. Group, Ltd., 2013 WL 3423755 *6 (Tex. App. -
DaJJas July 3, 2013, no pet) ("The concept of equitable extension has also been recognized w1dcr Texas
law:· and noting the "remedy of a onc~year extension of the restricted period gave [claimant] the bcnctlt
of its bargain of a one-year period without appellees preparing to conduct a business in competition'');
Guy Cwpenter & Co. v. Pnwenzale, 334 F.3d 459, 464 (5th Cir. 2003) (court has authority to extend the
expiration of non-solicitation clause). Without equitable extension, Ameripro would be dcptivcd of the
benefit of its bargain for the time period when Counter-Defendants breached the non-solicitation clauses.
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30
a consequence of the conduct described above. Counter-Dctendants arc also liable to Amcripro
under Tex. Civ. Prac. & Rem. Code §~ 143.001-02, tor harmful access by computer. Oak
Mortgage actively encouraged the Individual Counter-Dctendants to supply it with internal
confidential records of Amcripro, while they were still employed by Amcripro. The Individual
Counter-Defendants complied. ln addition to paper copies printed from Amcripro's computers.
they transmitted electronic versions of intemal Ame1ipro information while still employed with
Amcripro, and after resignation, took and kepL copies of such records as agents or Oak Mortgage.
67. Oak Mortgage had no consent to use of Ameripro computers at all, whether
directly or indirectly through the Individual Countcr-Dctcndants. The limited conscnL that
Amcripro had given the Individual Counter-Defendants to usc its computers was strictly for the
business purposes of Ameripro, and certainly did not extend to them supplying confidential
documents that were secretly requested by a competitor. As Task admitted at the Temporary
Injunction hearing, the Individual Counter-Defendants printed and downloaded records from
Ameripro computers tbr a purpose other than that for which Arncripro had given consent. As
Nasserfar stated when he extended Amcripro 's job offer to Gosnay, any activity that would assist
"'in preparing to compete with the Company" would also certainly be outside the parameters of
any authorized use of Amcripro's computers. Similarly, their destruction of tiles and c~rnails
from Ameripro-issued laptops was outside any authorit:cd use of the company's computers.
They used that stolen information to untairly compete against Ameripro, including by
jumpstarting a competing office in one business day.
68. Under Section 143.00 l, a person who is injured, or whose computer has been
injured, as a result of intentional or knowing conduct which violates of Chapter 33 of the Penal
Code, may maintain a civil cause of action. Section 33JJ2 of the Penal Code provides, in turn,
that "A person commits an offense if the person knowingly accesses a computer, computer
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31
network, or computer system without the effective consent of the owner." "Harm" is defined to
include not only erasure of information, but also "any other loss, disadvantage, or injury that
might reasonably be suffered as a result ofthe actor's conduct." Section 33.01(12) provides that
"Consent is not etTcctive if: ... used for a purpose other than that lbr which consent was given"
- the very facts to which Counter-Defendants admitted at the Temporary Injunction hearing.
Section 33.01 defines ''Access" to include making ··usc of any resource of a computer, computer
network, computer progmm, or computer system" - the very method by which Counter-
Defendants downloaded and printed Ameripro's conJidcntial infom1ation. As a consequence of
their statutory violations, Counter-Dclcndants arc liable to Amcripro for its actual damages.
reasonable attorneys' fees, and costs, for which Amcripro seeks recovery.
H. Violation of Tex. Bus. & Com. Code § 134A.001, et seq. (Texas Uniform Trade
Secrets Acf).
69. Amcripro incorporates by reference all factual allegations stated hereinabove. As
a consequence of their conduct, Counter-Defendants arc also liable to Amcripro under Tex. Civ.
Prac. & Rem. Code§ l34A.001, et seq., for violation of the Texas Uniform Trade Secrets Act
("TUTSA''). "Trade secret" under TUTSA is defined to be '''infom1ation" (specifically including
''financial data," or a "list of actual or potential customers or suppliers") that derives actual or
potential independent economic value from not being generally known or readily ascertainable
by ''proper means" by other persons who can obtain economic value from its disclosure or use,
and that is the subject of reasonable cffm1s to maintain secrecy. Under Section 134A.002(3),
Counter-Defendants' misappropriation included their "acquisition," their "disclosure," and their
"usc" or such information, each of which independently gives rise to their liability to Amcripro.
70. The confidential and proptictary information which Counter-Dctcndants obtained
trom Ameripro, as described above, constitute trade secrets under that statutory dctinition. Each
of the Individual Cow1ter-DefendanLs admitted that the reports they copied and downloaded from
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32
Amcripro were not derived from public sources, and could not be found publicly. Amcripro's
monthly general ledgers, loan profitability reports, pro fomtas, statements of income, lists of
borrowers and their account numbers at Ameripro, and other data were accessible only (rom
Ameripro's secure offices and password-protected computer network, and was not information
generally known to the public. The very fact that Oak Mortgage actively sought copies of that
data, and secretly obtained copies from the Individual Counter-Defendants. is an
acknowledgement that the information was or economic value, including for Oak Mortgage's
analysis of the economic viability of opening a new office in the same Lakeway location and
unusual expenses associated with that location.
71. The general ledgers and other detailed data also enriched Counter-Defendants by
enabling them to jumpstart a new office in one business day - piggybacking on Ameripro 's
investment of time and resources to develop such infom1ation - instead of the usual ramp-up
time of several months. When they downloaded Amcripro fom1s, Counter-Defendants even
forgot to remove Ameripro's address, before using the same documents for Oak Mo11gage.
72. Cow1tcr-Defendants improperly duplicated Ameripro's Lakeway oflicc, from its
budget information to its templates and tom1s, and reopened the onice under its own banner. tn
the process. they destroyed Ameripro's Lakeway office. and unjustly appropriated Amcripro's
labor and Amcripro's business lor themselves. As a consequence of their conduct described
above, Counter-Defendants are liable for damages for Ameripro's loss of business, damages
measured by Counter-Defendants· unjust enrichment, exemplary damages as a consequence of
Counter-Defendants' willful and malicious misappropriation, and injunctive relief, for which
Amcripro seeks recovery.
I. Civil conspiracy.
73. Ameripro incorporates by reference all factual allegations stated hereinabove. As
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33
detailed above. the Cow11cr-Dcfcndants coordinated their efforts in committing the violations of
common law~ contract, and statute. The Individual Counter~Dctendants all abruptly resigned on
January 15-16, 2015, without prior notice to Arneripro, and immediately began working in the
same Hill Country Galleria complex for Amcripro 's competitor, Oak Mortgage. ln the months
before their departure from Amcripro, they were in constant communication with Oak Mortgage,
and at Oak Mortgage's initiation. were secretly transmitting Ameripro's confidential infom1ation
to that competitor, including internal financial records, customer information, pricing
inJonnation, and templates and forms, were secretly deleting Ameripro records from Ameripro's
computers, and secretly soliciting Amcripro 's customers. Aller the Individual Counter-
Defendants resigned from Ameripro. Lhcy continued those violations as agents of Oak Mortgage.
74. The evidence supports that beginning at least as early as October 2014. Counter-
Defendants had a common objective and design to engage in the tortious acts, statutory
violations, and breaches of contract described above, and that they each took acts in furtherance
of that conspiracy. Each Countcr-Detcndant is jointly and severally liable for the actions of each
other Counter-Defendant, in connection with each cause of action asserted by Amcripro above.
J. Spoliation of e\'idence.
75. Ameripro incorporates by reference all factual allegations stated hereinabove.
Counter-Defendants' intentional destruction of text messages and e-mails (alter Oak Mortgage
agreed to indemnify them tor a future lawsuit with Amcripro), their destruction of computer files
and folders (including destruction of over 150 files and cleaning out the unallocated space even
afler this Coutt issued a TRO and commanded them to desist such destruction). and their other
intentional and negligent acts to destroy relevant information as described above, constitute
spoliation of evidence. Counter-Defendants had a duty to preserve all such evidence,
commencing at least as early as December II,. 2014 when Oak Mortgage agreed to indemnify
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34
them in litigation against Amcripro. They certainly had such a duty on May J 1, 2015, when the
Court ordered them not to destroy "anything, period." In each instance, they nevertheless
continued to willfully and negligently destroy documents.
76. Ameripro respectfully requests that a spoliation instruction be given to the jury,
instructing the jury that such evidence had it been produced would have been unfavorable to
Counter-Defendants, in addition to any other instructions or action by the Court to appropriately
address Counter-Defendants' intentional and negligent destruction of relevant information.
K. Rule 47 statement.
77. Pursuant to Tex. R. Civ. P. 47, Ametipro seeks monetary relief over $200,000 but
not more than $1,000,000, and n~m-monctary relief (including injunctive relief as set forth
hereinabove). The damages sought by Ameripro arc within the jurisdictional limits or the Court.
78. Amcripro reserves the right to amend its statement of monetary relief sought,
following discovery into the extent of Counter-Defendants' tortious, contractual, and statutory
violations, as well as to reflect the altorncys' fee~ that Ameripro has incurred.
L. Ameripro•s Amendt.-d Answer.
79. In answer to "PlaintitTs' Second Amended Original Petition," Ameripro
incorporates by reference all factual allegations stated hereinabove, and further pleads Lhc
following by way of general denial and aflirmativc defense.
General denial
80. Pursuant 1.o Tex. R. Civ. P. 92, Amcripro generally denies each and every, all and
singular, the allegations contained in "Plaintiffs' Second Amended Original Petition." Amcripro
demands strict proof of their allegatjons by a preponderance of the evidence.
Invalid hasesfor anti-suit
injunction, and mootness
81. Subject to and without waiving the generality of the foregoing, Counter-
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35
Defendants' amended requests for injunctive relief fail as a matter of law. Counter-Defendants
requested that Ameripro be enjoined from "liling any legal action against Plaintitls," and !'rom
"asserting or alleging" claims (including to enjoin Amcripro from alleging that "any confidential
and proprietary in formation is provided'' to its employees). However, those requests fail to
satisfy any of Golden Rule's extraordinary predicates for an approp1iatc anti~suit injunction. As
a matter of law, they should be summarily dcnied. 19
82. Counter-Defendants' request for anti-suit injunction should also be denied as
moot. Ameripro's claims have a/reat925 S.W.2d 649, 651 (Tex. 1996) (pl-'1' curiam).
(1 Counter-Defendants' other request for injunctive rdic!'~ relating to ownership and control of a website
1
and alleged templates, has also already been rejected by the Court, both on the record and in the June 16.
2015 "Order Denying Plaintiffs'!Counter-Dcfcndants' Applicatioll for Tcmponuy Resttainillg Order.''
34
36
on Amcripro's prosecution of its claims or on statements made in Amcripro's plcadings. 11
85. Counter-Defendants have also alleged in bad faith that the Individual Counter-
Defendants were never given access to any confidential information at Ameripro, and that
Ameripro's contracts are consequently unenforceable. Counter-Defendants made opposite
admissions in their prior sworn testimony, and among other confidential records, admitted they
had ongoing access to loan applications fbr Amcripro botTowcrs. 22 They also had access to
Ameripro's internal financial reports, such as general ledgers (which Counter-Defendants again
admitted are confidential). Their asserti2006 WL 495663 *5 n. 15 (Tex. App.- Fort Wm1h M:u. 2, 2006, no pet.) ("comts
have consistently applied the privilege to all types of claims arising out of communications made in the
course of judicial proceedings, regardless of the lubl!ls placed on them"); Daystar Res.. inc. v. Col/mer.
I 76 S.W.3d 24, 27 (Tex. App. -llouston [1 11 Dist.] 2004. pet. denied) (privilege extends to pleadings).
21
As discussed above, the Supreme Court held that "clients' names, billing information, and pertinent
tax and financial information" is confidential for purposes of enforcing non-compete provisions under
Section 15.50. Mann F'rankfort, 289 S. W .3d at fi5 L Confidentiality provisions (like those in Amcripro 's
contracts) arc what support the existence of un "otherwise enforceable agreement" under Section 15.50,
not defeat it. Moreover, contrary to Counter-Defendants' argument that the contracts arc uncntorccablc.
this Court has enforced them twice over. in the TRO and again in the Temporary Injunction.
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37
contractual and business relationships," and have asked the Court to make various declarations
relating to "Dejendam's [Ameripro's] claim" against them. Counter-Defendants' request for a
declaration of their non-liability for tortious interference and other causes of action is an
improper usc of the declaratory judgment procedure, and should be dismissed as a matter of law.
Nasseljar ccmtractua!Zv assigned to Ameripro the website
and alleged templates (and denied the latter even existed)
88. Counter-Defendants also argue that Nasserfar supposedly authored templates
prior to working for Amcripm, and lhat Amcripro and its employees supposedly began using
iterations of those documents after he began working for Amcripm. They contend that Nasscrfin
still owns those templates. Nasserfar also claims to own the internet domain name
michaclnasscrfar.com.
89. Those arguments are baseless, however, on the face of the contracts that Nasserliu
signed with Amcripm; i) Nasscrfar contractually conveyed all ofhis right. title, and interest in
the michaclnasscrfar.com domain to Ameripro on May 12, 2014; ii) Nasserf'ar contractually
warranted to Amcripro on October !8, 20 II. that he did not have any intellectual property or
other proprietary infonnation or his own when he began working for the company (such as
templates): and iii} on four separate occasions, Nasscrrar contractually agreed that if any such
prior works existed and were used on Amcripro computers, on its premises, or in connection
with its business, then he conveyed all right, title, and interest in them to Ameripro. Pursuant to
Tex. R. Civ. P. 58, Amcripro adopts herein by reference its "Ameripro Funding, Inc.'s Response
to Counter-Defendants' Application for InJunction" tiled May 22, 2015, detailing those facts.
While Ameripro is the owner and legally entitled lo use all such property, Amcripro is not using
any templates created by Nasscrfar, and has disabled the website link.
90. In fact, at the May 26~27, 2015 hearing on Amcripro's Temporary Injunction, this
Court heard the same arguments by Counter-Defendants, and rejected them. The CoUJt also
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38
issued an order denying Counter-Defendants· application Cor restraining order on J unc 16, 20 15.
Ameripro 's lmvsuit to eJ{/tm:e its contractual rights
cannot support a claim of" tortious inte~ference
91. Counter-Defendants argue that the man11cr in which Amcripro has sought to
cniorce its contracts ·- i.e., Ameripro's filing of its lawsuil against Counter-Defendants -
constitutes tortious interference with Counter-Defendants' contracts and business relationships.
As a matter of law, Counter-Defendants' claim fails on at least two grounds: i) the absolute
judicial privilege bars them from maintaining a cause of action based on Ameripro' s prosecution
of its claims; ii) their claims arc also barred by the privilege or legal justification or excuse,
under whi.ch Ameripro has a privilege to protect its own colorable rights and seck redress for
Counter-Defendants' conduct. In the June 16, 2015 Temporary Injunction, this Court
determined that Amcripro ·•met its burden to establish that it has a probable right of recovery and
likelihood of success on the merits" as to all Counter-Defendants. At a minimum, Ameripro has
established the existence of colorable rights, and as a maHer of law. its suit to enforce those
rights is covered by both privileges.
Compensation claims are barred
92. The Individual Counter-Defendants' claims for additional compensation from
Ameripro are likewise bar·rcd on multiple grounds:
A. The Individual Countcr-Dctcndanls' employment agreements with Amcripro
included a compensation li:mnula which defined how each of them would be
paid. Amcripro paid each of them in accordance with that lbrmula. No
additional amounts are due any or the Individual Counter-Defendants under the
terms ofthcir contracts with Amcripro. Instead. as detailed above. each ofthem
is accountable to Amcripro for forlciturc and disgorgcmcnt of amounLs he was
paid during the time period he was in breach of his duties to the company.
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39
B. A~ a consequence of the Individual Counter-Defendants' breaches of contract
and fiduciary duty described above (including their admitted failure to provide a
written account or open leads, business prospects, and loans in process, their
failure to assist in closings that occurred atler their tem1inations, and their
misappropriation of confidential records), none of the Individual Counter-
Defendants was in ''good standing" with Ameripro as ofthe date of termination.
They are not owed any amounts, including any commissions lbr closings that
occurred after they tem1inatcd their employment. As a consequence or their
breaches of contract and fiduciary duty, they are also barred from seeking
enforcement of the contracts against Amcripro, and Ameripro is relieved from
any obi igation to perfom1 under those breached agreements.
C. The Individual Counter-Defendants' argument that Ameripro should have
renegotiated their contracts (and that they should be paid based on profitability)
fails to stale any valid cause of action, and is not legally unenforceable. The
parties never agreed upon any of the materia.! U!m1s for a new employment
agreement to take the place of their existing contracts, let alone in any writing
signed by both parties. Moreover. Ameripro made clear to the Individual
Counter-Defendants that they are barred (as loan originators) from being paid
based on profits for their branch, and Amcripro refused to agree to any such
provision. As a matter of law, the Individual Counter-Defendants cannot
. cxlstcnce.-
en fiorce contract terms thaL never came mto . ")3 Evcn .1f thc parttcs
. were
~ K£Jttke v. Scott, 2011 WL 1467194 *4 (Tex. App. - Austin April 14, 20 ll, no pet.) (''lt is well settled
1
law that when an agreement leaves material matters open for future adjusrmcnt and agreement that never
occur, it is not binding upon the parties and merely consritutes an agreement to agree."). In addition to a
merger clause, Amcripro's contracts with the tbrmer employees required any futtm.! modifications or
substitutions be in a writing signed by both parties. Gamer v. Fi€/elity Bank, 244 S.W.3d 855, 860 (Tex.
38
40
to have ever agreed to such a modification (which they did not), it would have
violated governing regulations, and hence been illegal, void, and unenforceable.
93. All of Counter-Defendants' claims against Ameripro arc further barred under the
doctrines of unclean hands, estoppel, and waiver, including as a consequence of their material
breaches of contract, tortious conduct, and statutory violations described in detail above.
M. All conditions precedent have been performed or have occurred.
94. Amcripro previously gave written notice and demand to each Counter-Defendant
to cease and desist the conduct described above, and for Individual Counter-Defendants to
comply with their contracts with Ameripro, but to no avail.
95. All conditions precedent have been performed or have occurred, including all
conditions precedent to Ameripro's right to recover from Counter-Defendants.
WHEREFORE, PREMISES CONSIDERED, Counter-Plaintiff Ameripro respectfully
prays that the Court continue to enforce the Temporary Jnj unction dated June 16, 20 l5 through
enu·y of linal judgment, that Counter-Defendants lake nothing by their claims, and that upon trial
or other disposition, the Court enter final judgment in favor of Amcripro and against Counter-
Defendants, jointly and severally, for the following:
(a) awarding Amcripro permanent injunctive relief against Counter-Defendants. as
requested and detailed above~
(b) awarding Amcripro recovery or its actual damages against Counter-Defendants,
including for Counter-Defendants' misappropriation and conversion of Amcripro's confidential
and proprietary infbnnation, and lbr their breaches of fiduciary duty, breaches or contract,
statutory violations, and Oak Mortgage's aiding and abetting of those breaches, its 1ot1ious
App.- Dallas 2008, no pet.) ('"A written agreement will be enforced as written and cannot be added to,
varied. or contradicted by parol rcstiml"my. This is particularly true where the written contract contains a
recital that it contains the entire agreement between the parties or a similarly-worded merger provision.").
39
41
interference with contracts, and its other acts in conspiracy with the other Countcr~Dclcndants:
(c) awarding Ameripro disgorgcment damages against Counter~Dcfendants
(including all amounl'> by which Counter-Defendants have been tmjustly enriched), and ordering
forfeiture of compensation that the Individual Counter-Defendants received and;or allegedly
earned and ordering repayment of same to Amcripro;
(d) awarding Ametipro prejudgment interest to the maximum exLcnL permitted by
law;
(e) awarding Ameripro its reasonable attomeys' fees, costs of court, and any other
fees and amounts authorized by statute;
(l) awarding Amcripm postjudgmcnt interest as provided by la\v; and
(g) awarding Amcripro such other and thrthcr relief, at law or in equity, to which
Anteripro may be justly entitled.
Respectfully submitted,
GRAVES DOUGHERTY HEARON & MOODY, P.C.
By: /:'i/ Susan
P. Burton
Susan P. Burton
State Bar No. 03479350
sburloncil)gdhmrcom
Eric G. Behrens
Stale Bar No. 02050700
cbch rcns(ciigdhm .com
401 Congress Ave., Suite 2200
Austin, Texas 7870 l
Telephone: (512) 480~5600
Facsjmilc: (512) 480-5862
ATTORNEYS FOR COUNTER-PLAINTIFF
AND DEFENDANT AMERIPRO FUNDING, JNC.
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42
AFFIDAVIT
STATE OF TEXAS §
§
COUNTY OF TRAVIS §
BEFORE ME, the undersigned >.tuthority. on this day persouaHy appt:ared ChaJ
Overhauser, who after being duly sworn stated under oath the following:
"My name is Chad Overhauser. ! am the President and Founder of Ameripro Funding,
Inc.(' Atneripro'), the Counter~Piaintiff in this cause. 1 am duly authorized to make this affidavit
on Ameripro 's behalf. J am over the age of 2 I and have not been convicted of a Jelony. r am of
sound mind. capable of making this Aftidavit, and fuUy competent to testify to the matters slated
herein. l hav~ read the above Defendant and Counter-Plaintifl" Ameripro Funding. Inc_ 's First
Amended Counterclaim, and Sw<)rn Application for Temporary Injunction and Permanent
Injunction, and Answer. and every factual statement cont~ji' therein (e:xcludi[lg only legal
conclusions) is within my personal knowledge. and is true_.IU'\a ..e'fl~-" . < ,..
,."'//_/,.J /'~·/_,J
___...._)/'... .f:~ " _.~/_____.
Chad Ove'fn\RLES BU~DRE:-.; & ASSOCIA'IES LAW GROUP, PLLC
259 I Dallas Parkway, Suite 300
Frisco, Texas 75034
·s Sus an P. Burton
Susan P. Burton
2
12
OBJt.:CTIOJ\S TO CElHAfl\1
INSTRt:CTIO!IiS :\NO DEFINITIONS
Amelipro o~jccts to the "Time Fnm1c" listed at p. II of Counter-Defendants'
intcn·ogatorics (a 4 1 /~-ycar period lhm1 January I, 2011 to the present). on the ground that it is
overbroad, harassing, and covers years that are not relevant to any issue in this lawsuit: Gosnay
did not begin working for Amcripro until 2014, and he alleges that he \Vas not paid commissions
"earned in the month of January 2015." Similarly, Nasscrfar and Task only allege they were nnt
paid amounts owed ''beginning in the first quarter of 2014.'' Ameripro's claims rdate to
Counter-Defendants' tortious conduct and breaches or contract which arc believed to have begun
no earlier than 2014. ln short Counter-Defendants' 4 1/~-year .;Time Frame" fl·om 2011 forward
is overbroad, irrelevant, and harassing.
Ameripro fitrthcr objects to the "'fimc Frame" extending through the date "the answers to
these lntelTogatorics arc made" to the extent that the instruction contlicts \Vith the exemption
contained in Tex. R. Civ. P. 193.3(c): Ameripro intends to withhold privileged infomtation that
laH within Rule 193.3{c)'s exemption, generated on or allcr its "Petitioner Amcripro Funding.
Inc.'s Verified Rule 202 Petition'' was tiled in the related proceeding bel ween the same parties
relating to the same dispute, and as permitted by Rule 193.3(c), do so without tht:: necessity of
complying with Rule l93.3{a) and (b}.
Amcripro further objects to the instructions at pp. 2-3 of Counter-Defendants'
interrogatories, in \Vhich Amcripro is inslmctcd to make detailed explanations regarding each
document that had existed in the past 4 1,2 yl.!ars that is no longer in Ameripro 's possession or
control or that otherwise is no longer arc in existence, and to list each person who might have
knowledge regarding same, on the ground that the inslmctions are unreasonable. overbroad,
would subject Amcripro to undue burden, unnecessary expense, harassment, and annoyance.
Amcripro further objects that those instructions arc beyond the scope oC Rule J97's
requirements.
Ameripro l'urther objects to the inst.ructions at pp. 9-10 of Counter-Defendants'
interrogatories, and to the interrogatories which ask Amcripro to list every document that relates
to claims in the lawsuit (including multiple categories or detail listed at pp. 9-1 0) and to list each
person who might have knowledge regarding each such individual document, on the ground that
the instructions and questions arc unreasonable, overbroad, would subject Ameripro to undue
burden, unnecessary expense, harassment, and annoyance. Am.eripro further objects that those
instructions arc beyond the scope of Rule !97's requirements which allow a party to ask f()r a
description "in general" of the .. factual bases lc>r the party's claims or dcJcnscs" and not "tl)
marshal aU of its available pmot~· that it intends tn offer at trial.
Amcdpro further objects to Counter- Defendants' eleven pages of instructions and
dcfi nitions to the extent that they exceed the spcci tic rcq uircmcnts of Rules 192, 193, and 197 of
the Texas Rules of Civil Procedure. or the requirements of any other rules pertinent to discovery.
Unless otherwise specifically agreed upon hy the parties in writing, Ameripro objects ll)
expanding its obligations beyond those exact requirements comaincd in the Texas Rule:-, of Civil
Procedure.
3
13
RESPO~SES TO INTERROGATORIES
INTERROGATORY NO. 1; Identity Defendant's Electronic Information storage devices
(hereinafter referred to as "storage devices'') which have stored any inlonnation or data related to
Plaintiff.<• and other devices which have stored or which arc cmrcntly storing electronic lites and
inf(mnation and ESI w·hich are or have been in the care, custody and control of Defendant since
January I, 2012, lhc dates the storage devices came into Defendant's custody, the name
Defendant uses to describe the storage devices, and the present location or the storage devices,
their custodian(s), the characteristics of Lhe information, where the inJ()tmation is stored, backed
up, or archived and describe the operating systems or programs used by Dl.!lcrtdant to store
Electronic Information or ESJ, as defined herein.
A~SWER:
Countcr-Dclcndants' intctrogatorics refer to "ESl, as defined herein;· but they did not
include a definition anywhere in their interrogatories; Amcripro assumes the undcJincd tcm1
"ESI'' in thi.s intcn·ogatory was intended to refer to "electronically stored inll.1rmation."
Similarly, Counter-Defendants' interrogatories state that the lcml "Ekctronic lnHxmation"
means el.ectronic or magnetic data or information '·as defined in" Rule 196.4, but Rule 196.4
docs not provide any such definition; Amcripro assumes that the defined term "Electronic
Information'' has the ordinary meaning of''clectronic or magnetic data."
Amcripro objects to lntcn·ogatory No. l on the grounds of overbreadth and vagueness,
and that responding to the entirety of the requested infonuation would subject Amcripro to undue
burden, unnecessary expense, harassment, and annoyance. Even if the scope of the interrogatory
were limited to the Lakeway branch office where Nasserfar, Task, and Gosnay were previously
employed, the request to "identitY' all or the electronically stored inlormation contained at that
branch office would require Amcripro to itemize dozens of Gigabytes or data, Moreover,
Ameripro has already produced non~privilcgcd responsive documents, as described below, and
the burden of itcmi;cing those documents \vould be no greater for Counter-Defendants than it
would be for Ameripro. 1
In addition to the undue burden o!' providing any such listing, the request to identity
electronic infbmmtion ..related to Plaintiffs" (without limiting it to any claims or defenses made
in and relevant to the lawsuil ), is overbroad, vague, and c~11ls tor infom1ation cxc1.-cding the scope
of permissible discovery under Tex. R. Civ. P. 192.3(a). Amcripro also objects to the request for
..characteristics oflhc infbnnation'' as vague and unintelligible.
1
The dcctronic infmmation which Ammipro has alrc.:ady produced, as wdl as the 26,000+ documents
that Countcr-Dctcndants have supplied in response to th~.: Temporary Injunction Order. by themselves. are
among the documenrs "related to" the three individual Coum..:r-Dcfendants: the Court's Temporary
Injunction Order found that Cmmh:r-Defcndants misappropriated rhat information ''belonging h)
Ameripro," that Counter-Defendants wrongfully took it ·'from Amcripro's computer n.:.\twork" and
premises. and that they •·attempted to permanently destroy Aml:!ripro documents and fiks."
4
14
Subject to and without waiving the foregoing objections. at the May 27, 2015 hearing on
Ameripro's ap,,lication for Temporary Injunction, Amcripro gave opposing counsel a thumb
drive which contains forensic images ofthc electronic and magnetic data stored on the Ameripro
laptops that had been issued to Michael H. Nasscdltr, Michael E. Task. and Tycord R Gosnay
(the "Individual Counter~Dcfcndants"}, and oppo~ing counsel acknowledged his receipt of that
disk on the record at the hearing; that information is incorporated herein by reference pursuant
Lo Tex. R Civ. P. 58 and l 97.2(c). In addition, those laptops (and their serial and model
numbers), arc identified in deposition Exhibits 25, 80, 153, 157, and 158 in this lawsuit As
stated in James Anagnos' and Roy Rector's deposition testimony in this cause, and in Mr.
Rector's testimony at the Temporary Injunction hearing, the three laptops were delivered by l\1r.
Anagnos to Amcripro's computer forensic expert Roy Rector. Pursuant to Tex. R. Civ. P. 58.
193.5, and 197.2Cc), Mr. Anagnos' and Mr. Rector's identity. the details of the delivery of that
information, the dates when the delivery was made, and other requested information are set forth
in detail in those deposition transcripts and exhibits, in Ameripro 's responses to requests Cor
disclosure, and in Mr. Rector's expert files which have been produced in this cause (including
APF0028145-28171, APF0028l81-28255. and APF0028259-283). In addition, Amcripro has
already produced to Counter-Defendants in discovc1y copies of the electronic infbnnation and
electronically stored information .. related to" the Counter-Dercndants; in lieu of identifying each
of those documents, Amcripro refers Counter-Defendants to Bates numbers APFOOOOOOl
through APF0028283 (including expert materials relating to Mr. Rector's work) {i-om
Amcripro's document. production and supph:mcnts thereto, pursuant to Tex. R. Civ. P. 197,2(c).
Aside from the three laptops discussed above, the ''storage devices" for electronic or magnetic
data or intbm1ation consists of Amcripro's computer network system (lo which the Lakeway
office was linked) which continues to he located at Ameripro's oflices, Arneripro came into
possession of that computer network at least as early as 2003 when the company was formed
(and in any event before the January 1, 2012 date specified in this interrogatory), and Amcripro
has continuously been the custodian orthat t..:ompulcr network system. Amcripro docs not have a
special "name" l~1r its computer network.
INTERROGATORY NO. 2: Separately and distinctly. as to Oak Mortgage. state. separately
and distinctly, as to each claim or cause or action a~sertcd as a cross-claim by Defendant against
Oak Mortgage, the amount or damages Defendant seeks from Oak Mortgage. the identity of
documents or records, separately and distinctly. supporting Detcndant's claimed damages for
each cause of action or claim, the identity of persons with knowledge of such claimed damages,
and the method and means Defendant used to calculate the claimed damages.
ANSWER:
This interrogatory inquires about matters described in Tex. R. Ci·v. fl. l94.2(d).
Therefore, in the event that Amctipro amends or supplements this answer at a later date,
~mcripro a.-.scrls its right to exclude its prior answer from e-vidence or from usc in impeachment.
pursuant to Tex. R. Civ. P. 197.3.
Amctipro objects to the request to list "the identity of documents or records. separately.
and distinctly," on the ground that the requested ilcmizatiun cxccl.!ds 26,000 documents, is
overbroad, and providing thai identification would subject Ameripro to undue burden.
5
15
unnecessary expense, harassment, and annlly:mcc, and on the ground that It exceeds the scope of
Rule !97's requirements ,~..-hich allow a party to ask fbr a description "in general" of the ·•factual
bases for the party's claims or dclcnscs" and not "'Lo marshal all or its available proof'' that it
intends to oiTcr aL triaL TI1c Temporary Injunction Order which the CourL issued against
Counter-Defendants commanded thc.~m to provide Amcripro's expert with lorcnsic images of all
original source media which contain or did c.~ontain "Amcripro li.les or infonmttion." The thumb
drive of images that Counter-Defendants have supplied in response to the Temporary lrliunction,
alone, conlains over 26,000 Amcripro coniidcntial spreadsheets, including lists of Amcripro
boJTowcrs and Amcripro 's internal linancial records. 'l'hcy arc among the thousands or stolen
documents \Vhich support each of Amcripro's damage claims against Oak Mortgage and the
other Counter-Defendants: those 26,000-r spreadsheet:-; arc part oC the conlidential inlormation
"belonging to Amcripro" which the Court stated in the Temporary Injunction Order were
wrongfully "taken rrom Amcripro 's computer network and premises.''
Ame.ripro further objects to lhc interrogatory as harassing, in that Coufllcr-Dclcndanls
have refused to produce documents that Amcripro would usc in calculating Ameripro 's
disgorgement damages, as described in Ameripro 's pending Second Motion to Compel
Production of Documents. Part of Amcripro~s damngcs claims against all Counter-Defendants
consist of disgorgemcnt retncdics. The Cowi \; ·rcmporary Injunction found that Amcripro has a
''probable right of recovery and likelihood o!' success on the merits of its claims." Despite that
iact, Counter-Defendants have refused to produce documents responsive to Amcripro 's Second
Set of Requests for Production, which would enable Amcripro to calculate its disgorgcrncnt
damages claims. Amcripro will provide that disgorgcmcnL calculation when Counter-Defendants
produce the source documents responsive to Amcripro 's second set of requests for production.
Subject to and without waiving the llwcgoing o~jcctions, Amcripro fut1hcr amrwcrs as
follows.
Di'>gorgement. Amcripro seeks disgorgcmcm damages against all Counter-Defendants.
As to Oak Mortgage, Ameripro seeks disgorgcmcnL based on Oak Mortgage's conversion,
misappropriation, knowing participation in and aiding and abcning the Individual COLmtcr-
Dcfendants' breaches of llduciary duty, recovery Cor unjust enrichment as statutorily allowed
under Tex. Civ. Prac. & Rem. Code ~ l34AJ}04(a) (the Texas Unitorm Trade Secrets Act or
"TUTSA"), and conspiracy with the Individual Counter-Defendants in connection with their
breaches of fiduciary duty and acts of conversion nnd misappropriation.
Disgorgcment damages (including unjust enrichment) against Oak Mortgage ate based on
the income t.hat it and the other CounLer-Derendants have n~ccivcd for their new Lakev.·ay ollkc
since January 16, 2015, and the other benefits that Oak Mot1gage derived from having access to
Amcripro's confidential information (including being able to gauge the viability of opening a
Lakeway office and in shortening the normal time It would Lake to open a new bnmch). As
shmvn as the hearing on Amcripro's Temporary I11Junction application and in depositions in this
cause, Countcr-Dclcndants' commission or the conduct set out in the First Amended
Counterclaim (including their conversion und misappropriation of Amcripro's intcmal linancial
data and cu~tomcr infomuttion. and commission and knowing participation in breaches of
fiduciary duty) enabled Oak Mortgage and the other Countcr·Dcfcndants to assess the financial
viability of opening a branch office in that same locale as Ameripro. to jumpstart the opening of
6
16
a competing branch office in sh01iencd time and commensurate cost savings, to unfairly compete
fbr Amctipro 's customers, Lo avoid the expense of gencmting fom1s and templates and compiling
spreadsheets and contact list infom1ation, to compare internal Amcripro pricing infbrmation in
setting their own pricing, to wrongfully obtain the value of using Amcripro 's conlidcntial and
proprietary information vvithout authoriLaliou, and to crrcctivcly duplicate Amcripro 's business,
among olhcr wrongful bendits they gained through their conduct Amcripro is entitled 10
recover from Countcr~Defendants. jointly and severally. disgorgemcnt of the value or those
receipts, avoided costs, and other benefits, including but not limited to the value of the above
bcnelits and of their unlicensed usc or the property which they took from Amcripro. I'o date,
however, Countcr-Delcndants have refused to produce that information in response to
Amcripro's second set of requests for production, as needed for Amcripro's calculation.
Amcripro reserves the right to supplement with its calculation or disgorgcment damage amounts,
once Counter-Defendants comply with discovery by producing documents responsive to
Amcripro 's second set of requests for production.
Actual damages. Amcripro also seeks actual damages against all Counler-Detcndants.
Jointly and severally. As lo Oak Mortgage, Ameripro seeks actual damages based on Oak
Mortgage's knowing participation in and aiding and abetting of the Individual Counter-
Defendants' breaches of fiduciary duty, misappropriation, conversion. hHiious interference with
contract, violations ofTcx. Civ. Prac. & Rem. Code* 143.002 and Tex. Civ. Prac. & Rem. Code
~ l34A.004, and its conspiracy with lhc other Counter-Defendants in the commission or those
violations. Those actual damages over a foreseeable twelve-month period include Counter~
Defendants' joint and several liability for the dcstmction or the mortgage practice at Amcripro 's
Lakeway office, which was proximately caused by Oak Mortgage's (and each of the other
Counter-Defendants') commission or each of those violations, in the amount of $1 ,974,405.77.
multiplying Amcripm's average gross margin by the total production volume loan origination
volume lor 2014 for the Lakeway branch oCiicc.
Reasonable rovaltv. As set fmth in Amcripm' s First Amended Petition, Amcripro is also
entitled to a reasonable royalty lor Counter-Defendants' unauthorized disclosure andlor use of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem. Code§ 134A.004(a). Pursuant to that
section, Amcripro will also present an alternate damage model measured by imposition of
liability for a reasonable royalty against Oak Mortgage and the other Countcr-Dclcndams for
their unauthori.t~:d usc or disclosure of Ameripro 's trade secret information (as defined in that
statute). Amcripro reserves the right to supplement this portion of its answcn\ of
$103,120.51, consisting of the income Amcripro paid to Nasscrfar fi·om November I, 2014
through the end of his employment, during the period that Nasserib.r was actively breaching his
fiduciary duties, engaged in conversion, in violation of Section 134A.OOJ, et seq., and in breach
or his contracts.
For disgorgcmcnt or amounts that Counter-Defendants have received lor their new
Lakeway office since January 16, 20 !5, Counter-Defendants have refused to produce
information in response to Amcripro's second set of requests for production, as needed for
Amcripro's calculation. Ameripro reserves the right to supplement with its calculation of
disgorgemenl damage amounts, once Counter-Defendants comply with discovery by producing
documents responsive to Ameli pro's second set or
requests for production.
Actual damages. As stated above, Amcripro also seeks actual damages against all
Counter-Defendants, jointly and severally. As to NasscrHtr, Amcripro seeks actual damages
based on Nasscrfar's breaches of fiduciary duty, misappropriation, conversion, breaches of his
contracts, violations of Tex. Civ. Prac. & Rem. Code § 143.002 and Tex. Civ. Prac. & Rem.
Code § l34A.004. and his conspiracy with the other Counter-Defendants in the commission of
those violations. Those actual damages over a foreseeable twelve-month period include
Counter-Defendants' joint and scwcral liability for the destruction of the mortgage practice at
Amcripro's Lake"vay office, which was proximately caused by Nasserlar's (and each ofthc other
C'ountcr-Dctendants') commission of each of those violations, in the amount of $1,974,405.77,
multiplying Amcripro's average gross margin by the tolal production volume · loan origination
volume lor 2014 for the Lakc\vay branch olTicc.
Rea.'wnable rnvaltv. As set forth in Amcripro's First Amended Petition. Ameripro is also
entitled loa reasonable royalty lor Counter-Defendants' unauthorized disclosure and'or use of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem. Code§ 134A.004(a). Pursuant to that
section, Ameripro will also present an alternate damage model measured by imposition or
Uability for a reasonable royally against Nasscrfar and the other Counter-Defendants for their
unauthorized usc or disclosure of Amcripro 's trade secret infbrmation (as de lined in that statute).
Amcripro reserves the right to supplement this portion of its answer with its calculation, once
Cow1tc1·-Defendants comply with discovery by producing documents responsive to Amcripro 's
second set of requests lor production.
10
20
Attornevs · lees and costs. Amcripro seeks to recover its rcasonab!c and necessary
attorneys' fees from all Countcr-Dc!cndants, including Nasscrfar. Amcripro's lee recovery
against Oak Mortgage is based on Amcripro's claims under Tex. Civ. Prac. & Rem. Code §
143.002 and Tex. Civ. Prac. & Rem. Code § l34A.005. Amcripro's calculation of reasonable
and necessary fees is based on the factors set forth in Texas Disciplinary Rule of Professional
Conduct 1.04 and the Arthur Andersen & Co. v. Perry Equipment Co., 945 S.W.2d 812, 818-19
(Tex. 1997) line of decisions. Because or the interrelated nature of Ameripro's contract and
statutory claims with the olhcr causes of action lhat Ameripro has asserted, and with the dctcnscs
that Plaintifis!Countcr-Defcndants have raised, their prosecution entails proof of essentially the
same facts, and the discrete legal services thai Ameripro's attorneys have pcrlormed advance
both recoverable and unrecoverable daims and dercnscs Ameripro asserls in this matter. 95°-o of
the legal services Amcripro's attomcys and paralegals pcrfonncd would have been ncccssal)' in
connection with Amcripro 's contract claims. 95% would have been necessary in connection with
Amcripro 's TUTSA claims, 95%. would have been necessary in connection with Amcripro 's
Section 143.002 claims (even if Amcripro's attorneys and paralegals had not devoted pretrial and
trial work specifically toward claims lor which attorneys' fee recovery is not statutorily allowed
or to Amcripro's defense of C'ounter~Defcndants' claims), and 95% or the legal services
Ameripro's ~Ulorneys and paralegals perlhm1ed would have been necessary even if Amcripro did
not assert claims for vvhich no Icc recovery is permitted. Because of the joint nature of Counter~
Defendants' wrongfhl conduct. 95o.;, or the legal services Ameripro's attorneys and paralegals
performed would have been necessary as to each Counter-Defendant and on each of the claims
for which that Counter-Defendant is statutorily liable ror attorneys' tees, even i r the othl'r
Countcr·Dcfcndants {or any of them) were not parties in the lawsuit. Through July 31, 2015,
that reasonable and necessary amount totals $200,669. Pursuant to Tex. R. Civ. P. 58 and
193.5(a)(2), Amcripro also adopts by reference its testifying expert designations set out in its
responses to requests for disclosure (under Rule 194.2((} relating to attorneys' lees).
Eremplary damages. Ameripro seeks to recover punitivc 1cxemplat-y damages against all
Countcr-Dclcndants, including Nasserfar. Amcripro's recovery of punitivctcxemplary damages
against Nasscriar is based on his breaches of liduciary duly, misappropriation. conversion. and
violations of Tex. Civ. Prac. & Rem. C\lde ~ 134A.004. Ameripro's punitive/exemplary
damages against Nasscrfar is the greater of i) two times the amount or its economic damages
(including disgorgcmcnt and actual damages) plus any noneconomic damages found by the jury,
or ii) $200,000 (as authorized under Tex. Civ. Prac. & Rem. Code § 41.008), and.·or l\\icc the
amount of disgorgement and actual damages ::n.varded to Amcripro (as authorized under Tex.
Civ. Prac. & Rem. Code* 134A.004).
r~TERROGATORY ~0. 4: Separately and distinctly, as to Michael Task, state. separately
and distinctly. as to each claim or cause of action asserted as a cro~s-claim by Defendant against
Michael Task, the amount of damages Dc!cndant seeks from Michael Task, the identity of
documents or records, separately and distinctly, supporting Defendant's claimed damages for
each cause of action or claim, the identity or persons with knowledge of such claimed damages,
and the melhod and means Dctcndant used to calculalc the claimed damages.
A~SWER:
II
21
This interrogatory inquires about matter!' described in Tex. R. Civ. P. 194.2(d).
Thcrclbrc, in Lhc event that Amcripro amends or supplements thi~ answer at a later date,
Amcripro asserts its right to exclude its prior ans\vcr from evidence or from use in impeachment.
pursuant to Tex. R. Civ. P. 197.3.
Amcripro objects to the t·cqucst to list ''the identity of documents or record~. separately,
and distinctly," on the ground that the requested itemization cxcl.!eds 26,000 documents, is
overbroad. and providing that identification would subject Ameripro to undue burden,
unnecessary expense, harassment. and annoyance, and on the ground thnt it exceeds the scope of
Rule !97's requirements -...·hich allow a party to ask lor a description "in general" of the "ractual
bases for the party's claims or defenses" and not "to marshal all of its available proof" that it
intends to oiTer at triaL The Temporary Injunction Order which the Court issued against
Counter·Defendants commanded them to provide Ameripro's expert with forensic images of all
original source media which contain or did contain ·'Amcripro files or infonnation.'' The thumb
drive of images that Counter· Defendants have supplied in response to the rcmporary Injunction,
alone, contains over 26,000 Amcripro confidential spreadsheets, including lists of Amcripro
borrowers and Amcripro's internal linancial records. They are among the thousands or stolen
documents which support. each of Amcripro's d.1magc claims against Task and the other
Counter-Defendants: those 26,000·+ spreadsheets arc part of the contidential information
•·belonging to Ameripro'' which the Court stated in the Temporal)' Injunction Order \\ierc
wrongfltlly "taken from Amcripro 's compuLcr network and premises.''
Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have rcluscd to produce documents that r'\mcripro would usc in calculating Amcripro 's
disgorgcmcnt damages, as described in Amcripro's pending Second Motion to Compel
Production of Documents. Part of Arncripro's damages claims against all Counter-Defendants
consist of disgorgemcnt. remedies. The Court's Temporary Injunction found that Amcripro has a
.. pn.1bable right of recovery and likelihood of "ucccss on the merits of its claims." Despite that
iact. Counter-Defendants have refused to produce documents responsive to Amcripro 's Second
Set of Requests f(w Production, which \.vould enable Ameripro to calculate its disgorgcmcnt
damages claims. Ameripro \Viii provide thai disgorgcment calculation when Counlcr-D<:fendants
produce the source documents responsive to Amcripro's second set of requests for production.
Subject to and without waiving the foregoing objections, Amcripro fmthcr answers as
follows.
Disgnrgeme111. Amcripro seeks disgorgcmcnl damages against all Ccnmtcr-Dcfcndunts.
As to Michael Task, Amcripro seeks disgorgemenl based on Tas.k's conversion,
misappropriation, breaches of tiduciary duty, recovety for unjust enrichment as statutorily
authorized under Tex. Civ. Prac, & Rem. Code § l34A.004(a), and conspiracy with the other
Countcr~Dcfcndants in connection with their breaches of liduciary duly (and knowing
participation in and aiding and abetting or same) and acts of conversion.
Disgorgcmcnt damages (including unjust enrichment) against Task arc based on the
income that he and the other Coumcr-Dcfcndants have received fi.•r their new Lakev.-·ay office
since January 16, 2015, the other benefits that. they derived from having access to Amcripro's
confidential infi.xmation (including being able to gauge the viability or opening a Lakeway oflice
12
22
and in shortening the normal time it \vould take to open a new branch), and for forfeiture of
amounts that Amcripro paid to Task during the time period he w·as breaching his liduciary duties
and was engaged in conversion and violations of Section l34A.OO I, er seq. (which began at least
as early as October 30, 20 14). As shown as the hearing on Amcripro 's Temporary Injunction
application and in depositions in this cause, Countcr-Ddendants' commission of the conduct set
out in the First Amended Counterclaim (including their conversion and misappropriation of
Ameripro's internal financial data and customer infonnation, and commission and knowing
participation in breaches or fiduciary duty) enabled Task and the other Counter-Defendants to
assess the financial viability of opening a branch onicc in that same locale as Ameripro, to
jumpslart the opening of a competing branch onicc in shortened time and commensurate cost
savings, to unfairly compete for Amcripro's customers, LO avoid the expense or generating fOrms
and templates and compiling spreadsheets and contact list infommtion, to compare internal
Amcripro pricing infbrmation in setting their mvn pricing, to wrongfully obtain the value of
using Amcripro's conJidential and proprietary inforn1ation without authorization, and to
e11ectively duplicate Ameripro's business, among other wrongful benefits they gained through
their conduct. Ameripro is entitled to recover from Counter-Defendants, jointly and severally,
disgorgement of the value of those receipts, avoided costs, and other bcnc1its, including but not
limited to the value of the above bene tits and of their unlicensed use of the property which they
took ti·om Amcripro. For fbrfciturc damages, that amount consists or $34,861.73, consisting of
the income Ameripro paid to Task from November 1, 2014 through the end of his employment,
during the period that Task was actively breaching his tiduciury duties, engaged in conversion, in
violation of Section 134A.00l, et seq., and in breach ofhis contracts.
For disgorgemcnt of amounts that Counter-Defendants have received for their nc•v
Lakeway otrice since January 16, 2015, Counter-Defendants have refused to produce
information in response to Amcripro's second set of requests lor production. as needed fix
Ameripro's calculation. Amcripro reserves the right to supplement with its calculation of
disgorgement damage anwunts, once Counter-Defendants comply with discovery by pmducing
documents responsive to Ameripro's second set of requests for production.
Actual damages. As stated above, Amcripro also seeks actual damages against all
Counter-Defendants. jointly and severally. As to Task, Ameripro seeks actual damages ba~ed on
Task's breaches of fiduciary duty, misappropriation, conversion, breaches of his contracts,
violations of Tex. Civ. Prac. & Rem. Code ~ 143.002 and Tex. Civ. Prae. & Rem. Code §
134A.004, and his conspiracy with the other Counter-Defendants in the commission of those
violations. Those actual damages over a f(Jrcseeablc twelve-month period include Counter-
Defendants' joint and several liability lor the dcstntction or the mortgage practice at Amcripro 's
Lakeway office, which was proximately caused by Task's (and each of the other Counter-
Defendants') commission of each of those violations, in the amount or $1,974,405.77,
multiplying Amcripro's average gross margin by the total production volume loan origination
volume for 2014 for the Lakeway branch ofticc.
Reasonable rovaltv. As set lhnh in Amcripro's First Amended Petition. Ameripro is also
entitled to a reasonable royalty for Counter-Defendants· unauthorized disclosure and' or usc of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem. Code § 134A.004(a). Pursuant to that
section, Amcripm will also present an alternate damage model mcasurl.!d by imposition of
liability tor a reasonable royalty against Task and the other Counter-Defendants {or their
13
23
w1authorizcd usc or disclosure of Amcripro'~ trade secret information (as defined in that statute).
Amcripro reserves the right to supplcmcm this portion of ils answer with Its calculation, once
CountcrMDcfendants comply with discovery by producing documents responsive to Amcripro 's
second set of requests lor production.
Attornev.s·' tees and costs. Amcripro seeks to recover its reasonable and necessary
attorneys' fees from all Counter-Defendants, including Task. Amcripro's fcc recovct)' against
Oak Mortgage is based on Ameripro's claims under Tex. Civ. Pmc. & Rem. Code§ 143.002 and
Tex. Civ. Prac. & Rem. Code§ 134A.005. Ameripro's calculation of reasonable and necessary
tees is based on the factors set lorth in Texas Disciplinary Rule of Professional Conduct I .04 and
the Arthur Andersen '~ Co. v. Perry Equipmellf Co., 945 S.W.2d 812. R18- I9 (Tex. 1997) line nf
decisions. Because of the interrelated nature or Amcripro's contract and statutory claims with the
other causes of action that Amcripro has asserted, and with the dclcnses that Plaintil'fs . f'ounter-
Dcfcndants have raised, their prosecution entails proof of essentially the same facts, and the
discrete legal services that Ameripro's attorneys have pcrfonm~d advance both recoverable and
unrecoverable claims and defenses Amcripro asserts in this matter. 95% of the legal services
Amcripm's attorneys and paralegals pt.:rformcd would have been necessary in connection with
Amctipro's contract claims, 95~'o would have been necessary in connection \Vit.h Amcripro 's
Tl.JTSA claimii, 95%> ·would have been necessary in connection with Ameripro's Section 143J)02
claims (even if Ameripro's allorneys and paralegals had not devoted pretrial and trial work
specifically toward claims for which attorneys' fcc recovery is not statutorily allowed or to
Amcripro's defense of Countcr-Dctcndants' claims), and 95~'o of the legal scrvict.~s Amcripro's
attorneys and paralegals performed would have been necessary even ir Amcripro did not assert
claims for which no fee recovery is permitted. Because of the joint nature or Counter-
Defendants' wrongful conduct. 95°/o or the legal services Ameripro's auomeys and paralegals
perfonncd would have been necessary as to each Counter-Defendant and on each of the claims
fbr which that Counter-Defendant is statutorily liable tor attorneys' fees, even if the other
Counter-Defendants (\1r any of them) were not parties in the lawsuit. Through July 31, 2015,
that reasonable and necessary amount totals $200,669. Pursuant to Tex. R. Civ. P. 58 and
193.5(a)(2), Amcripro also adopts by reference its testifying expert designations set out in its
responses to requests for disclosure (under Rule 194.2(f) relating to attorneys' fees).
Etemp/arv damages. Amcripro seeks to recover punitive/exemplary damages against all
Countcr~Dcfcndams. including Task. Amcripro's recovery of punitive/exemplary damages
against Ta~k is ba~cd Oil his breaches of liduciary duty, misappropriation, conversion. and
violations of Tex. Civ. Prac. & Rem. Code § 134A.004. Ameripro's puni.tivc/cxcmplary
damages against Task is lhc greater of i) two times the amount of its economic damages
(including disgorgcment and actual damages) plus any noneconomic damages found by the jury,
or ii) $200,000 {as authorized under Tex. Civ. Prac. & Rem. Code* 41.008), andlor twice the
amount of disgorgcmcnt and actual damages :w. ardcd to Arncripro (as authorized under Tex.
Civ. Prac. & Rem. Code* 134A.004).
INTERROGATORY NO.5: Separately and distinctly, as lo Ty Gosnay, state, separately and
distinctly, as to each claim or cause of action assc11cd as a cross-claim by Defendant against Ty
Gosnay, the amount of damages Defendant seeks from Ty Gosnay. the identity or documents or
records, separately and distinctly, supporting Defendant's claimed damages for each cause of
14
24
action or claim, the identity of persons with knowledge of :-o:uch claimed damages, and the
method and means Defendant used to calculate the claimed damages.
A~SWER:
TI1is intcrrogatOJ)' inquires about matters described in Tex. R. Civ. P. 194.2(dl.
Therefore, in the event that Amcripro amends or supplements this answer at a later date,
Amcripro asserts its right to exclude its prior answer from evidence or from usc in impeachment,
pursuant to Tex. R. Civ. P. 197.3.
Ameripro objects to the request to list '"the identity of documcnls or records, separately,
and distinctly," on the ground that the requested itemization exceeds 26,000 documents. is
overbroad, and providing that identification \\Ould subject Ameripro to undue burden,
unnecessary expense, harassmcm, and annoyance, and on the ground that it exceeds the scope of
Rule 197's requirements which allow a party to ask lor a description "in general" of the "factual
bases Cor the party's claims or defenses" and not ··to marshal all of its available proor· lhat it
intends to offer at trial. The Temporary Injunction Order which the Court issued against
Countcr~Dcii:ndants commanded them to provide Amcripro's expert with forensic images of all
original source media which contain or did contain "Amcripro Iiles or inlormalion." The thumh
drive of images that Counter· Defendants have supplied in response to the Tcmrorary Injunction,
alone, contains over 26,00() Amcripro confidential spreadsheets, including lists of Ameripro
borrowers and Amcripro't> internal financial records. They arc among the thousands of stolen
documents which support each of Amcripro's damage claims against Gosnay and the other
Counter-Defendants: those 26~000+ spreadsheets arc part of the con fidcntial information
''belonging to Ameripro" which the Court stated in the Temporaty Injunction Order were
wrongfully ''taken from Amcripro 's computer network and premises."
Ameripro further objects to the interrogatory as harassing, in that Cotmter~Dcfcndants
have refused to produce documents that Ameripro would usc in calculating Amcripro ·s
disgorgement damages, as described in Amcripro's pending Second Motion to Compel
Production of Documents. Part of Ameripro's damages claims against all Counter-Defendants
consist of disgorgemenl. remedies. The Court's Temporary Injunction found that Amcripro has a
"'probable right of recovery and likelihood ol' success on the merits of its claims." Despite that
fact, Countcr-Dclcndants have refused to produce documents responsive to Amcripro's Second
Set of Requests lor Production. which would enable Amcripro to calculate its disgorgemcnt
damages claims. Amcripro will provide thai disgorgcmcnl calculation when Countcr-Detbndants
produce Lhe source documents responsive to AmL'ri pro's second set or requests for production.
Subject to and without waiving the foregoing objections, Amcripro further answers as
follows.
DZ:,·gorgemem. Amcripro seeks disgorgemcnt damages against all Counter-Defendants.
As Lo Tycord Gosnay, Amcripro seeks disgorgcmcnt based on Gosnay's convcr,ion.
misappropriation, breaches of fiduciary duty, recovery for unjust enrichment as statutorily
s
authorized under Tex. Civ. Prac. & Rem. Code l34A.OO.t(a). and conspiracy with the other
Counter·Defendanls in connection \vith thdr breaches or liduciary duty (and knowing
participation in and aiding and abetting of same) and acts of conversion.
15
Disgorgcmcnt damages (including unjust enrichment) against Gosnay arc based on the
income that he and the other Counter-Defendants have received for their new Lakeway oflicc
since January 16, 2015, the other benefits that they derived lrom having access to Amcripro's
confidential information (including being able to gauge the viability of opening a Lakeway office
and in shortening the normal time il would take to open u new branch), and Cor forfeiture of
amounts lhat Amcripro paid to Gosnay during the time period he \vas breaching his Jiduciary
duties and was engaged in conversion and violations ofScction 134A.001, et sf!q. (whkh began
at least as early as October 30, 2014). As shown as the hearing on Ameripro's Temporary
Injunction application and in depositions in this cause, Counter-Defendants' commission or the
conduct set out in the First Amended Counterclaim (including their conversion and
misappropriation of Amcripro 's internal financial data and customer infomtation, and
commission and knowing panicipation in breaches or fiduciary duty) enabled Gosnay and the
other Counter-Defendants to assess the financial viability of opening a branch oiTice in that same
locale as Amcripro, lo jumpstat1 the opening of a competing branch oflice in shortened time and
commensurate cost savings. to unfairly compete for Amcripro's customers. to avoid the expense
of generating forms and templates and C<>mpiling spreadsheets and contact lisl infonnation, to
compare internal Ameripro pricing infl.1m1ation in setting their own pricing, to wrongfully obtain
the value of using Ameripro's contidcmial and proprietary information without authoriLation,
and to effectively duplicate Amcripro's business, among other wrongful bl.!ncfits they gained
through their conduct. Amcripro is entitled to recover trom Counter-Defendants, jointly and
severally, disgorgcmcnl of the vah.1c of those receipts, avoided costs, and other benefits.
including but not limited to the value of the above benefits and of their unlicensed usc of the
property which they took from Ameripro. For forfeiture damages, that an10unt consists of
$21.709.73. consisting ofthc income Amcripro paid w Gosnay from November l, 2014 through
the end of his employment, during the period Lhat Gosnay was actively breaching his fiduciary
duties, engaged in conversion, in violation of Section 134A.00 I, et seq., and in breach of his
contracts.
For disgorgemcnt of amounts thai Counter-Defendants have received for their new
Lakeway otlice since January l6, 2015, Counter-Defendants have refused to produce
ini(lmtation in response to Ameripro' s sccond sct of rc4ucsl~ l~Jr production, as needed l()r
Amcripro's calculation. Amcripro reserves the right to supplement with its calculation of
disgorgement damage amounts. once Countcr-Detendants comply with discovery by producing
documents responsive to Ameripro's second set of requests for production.
Actual damages. As stated ab<.wc, Amcripro also seeks actual damages against all
Countcr~Ddcndants, jointly and severally. As lo Gosnay, Ameripro seeks actual damages based
on Gosnay's breaches of fiduciary duty, misappropriation, conversion, breaches of his contracts.
violations of Tex. Civ. Prac. & Rem. Code § 143.002 and Tex. Civ. Prac. & Rem. Code §
t34A.004; and his conspiracy with the other Counter-Defendants in the commission of those
violaLions. Those actual damages over a lbrcsecablc t\velve-month period include Counter-
Defendants' joint and several liability for the dcstntction or the mortgage practice at Amcripro 's
Lakeway office, which was proximately caused by Gosnay's (and each of the other Counter-
Defendants') commission of each of those violations. in the amount or $1,974.405.77,
multiplying Amcripro's average gross margin by the total production volume ' loan origination
volume for 2014 for the Lakeway branch orticc.
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26
Reasonable rovdlt}". As set lot1h in Amcripro's First Amended Petition, Ameripro is also
entitled to a reasonable royalty for Count~r-Dcfendants' unauthorized disclosur~ andior use of its
trade secrets pursuant to TUTSA, T~x. Civ. Prac. & Rem. Code ~ 134A.004(a). Pursuant to that
section, Amcripro will also present an altemat~ damage model measured by imposition of
liability lor a reasonable royally against Gosnay and tht: other Counter-Defendants lor their
unauthorized usc or disclosure ofAmcripro's trade secret inlonnation (as defined in that statute).
Amcripro rc:.encs the right to supplement this porlion or its answer with ils calculatton, once
Counter-Defendants comply with discovery by producing documents responsive to Ameripro 's
second set of requests for production.
Attornevs' tees ami costs. Amcripro seeks to recover its reasonable and necessary
attorneys' fees from all Counter-Defendants. including Gosnay. Amcripro 's Icc recovery againsl
Oak Mortgage is oased on Amcripro's claims under Tt~x. Civ. Pruc. & Rem. Code~ 143.002 and
Tex. Civ. Prac. & Rem. Code§ 134A.005. Ameripro's calculation of reasonable and neccssting in the maintenance and review of any clcclronically stored
information of Defendant, Ddendant's electronic data, computers, database, hard drives, or other
electronic infom1ation.
A~SWER:
Amcripro objects to Interrogatory No. 6 on the ground that the open-ended request lor the
identity or every employee who worked in A.mcripro's IT or technology department or division
is overbroad, and is not reasonably limited to persons with knowledge of any relevant fact~.
Su~jcct to and without waiving the foregoing objections, the persons who were responsible for
maintaining Amcripro 's dcctronicaUy stored inforrnation. data, computers, and other electronic
intbrmalion from January l, 201 1 to the present arc Jeremy Robichau, IT Lead, and James
Anagnos, Director - Inlbrmation Tcdmology, Tcnura Holdings, Inc., 8300 N. Mopac
Expressway, Suite 220. Austin, Texas 78759, c'o Susan P. Burton, Graves Dougherty Hearon &
Moody, 401 Congress Ave., Stc. 2200, Austin, Texas 78701. (512) 480-5738.
INTERROGATORY NO. 7: Identify all persons that reviewed, copied, revised or made
changes to. or installed operating systems on. or deleted any electronic Illes or electronically
stored information from any clccu·onic devices that \\·ere in the possession. custody or control of
Michael Nasserfar, Michael Task or Ty Gosnay at any time during thei.r employment with
Dc!endarH, and any and all persons who deleted any information from the laptop computer or
other electronic storage devices of Michael Nasscrfar. Michael Task or Ty Gmmay, and any and
all persons who installed new operating systems on any computer or electronic device previously
in the possession of Michael Nasscrfar, Michael Task or Ty Gosnay during their employment
with Defendant, and, separately and distinctly, identify the dates of such actions, the electronic
devices involved, and the identity, separately and distinctly, of the person or persons who engage
in such activities, and identify the electronic Iiles or clcclronically stored intormation that wa.;;
deleted fmm the computers or clcctronica!ly stored devices in the possession, custody or control
of Michael Nasscrfar, Michael Task or Ty Gosnay at any time.
A~SWER:
On January 26, 2015, as part of a mutinc update for company laptops a new operating
system was loaded onto the laptop that Nass..::rfar had used during his employment. Pursuant to
Tex. R. Civ. P. 58 and l97.2(c), Amcripro adopts and incorporates herein by reference the May
l, 2015 deposition testimony oC its expert. Roy Rector, testifying on that subject. Updates \~tould
have been installed by Tcnura IT Support (either Norm Booher or Colin Stewart), and Amcripro
is unaware which updated this particular laptop.
J8
28
However, lhc forensic images that Counter-Defendant$\ have subsequently provided.
including forensic images from Nasscrfar thumb drives and other ek-ctronic devices that the
Temporary Injunction Order commanded Countcr-Dclcndants to return to Amcripro, show that
Nasscrfar did remove confidential records from Amcripro·s computer network system. and kept
possession of that Amcripro property for several monlhs after his cmploymcnr with Amcripro
ended.
J~TERROGA TORY NO. 8: Identify all Iiies reviewed by Defendant or any of its consultants
from the forensic images of any and all electronic devices of Plaintiffs.
A~SWER:
Pursuant to Tex. R. Civ. P. 192.5 and 193.3(a) & (c), Ameripro withholds n·orn this
answer the identity of any of the files that Amcripro 's counsel or their staff have reviewed from
those forensic images, based on the attorney work-product privilege. Counlcr-Dctcndants
provided the forensic images of their ``lectronic devices after the Cow·t issued its mlings at the
May 26~27, 2015 Temporary Injunction hearing - i.e., well after litigation was not only
anticipated, but actually on lilc. Ameripro will also \vithhold the identity of any lon.msic images
which relate to Amcripro which the undersigned counsel show to any Ameripro in-house
attorneys (as permitted under the Temporary Injunction Order), based on the attomcy work-
product and attorney-client privileges.
Ameripro also objects to the intcn·ogatory on the grounds of overbreadth, and that
responding to the requested inlortnation would subject Ameripro to w1due burden, unnecessary
expense, harassment, and annoyance, and that it exceeds the scope of Rule 19Ts requirements.
For example, the review that has occurred to date has shown that there are over 26,000 Ameripro
spreadsheets on one Nasserfi:tr thumb drive alone, which Nassertar improperly took ti·om
Ameripro: leaving aside that the specific identity of files reviewed by Amcripro attorneys is
privileged infonnation, itemizing those thousands of documents would also he unduly
burdensome and expensive and is calculated solely to harass.
Subject to and without waiving the foregoing, Amcripro's testifying expert, Roy Rector,
reviewed all of the files from forensic images that Counter-Defendants delivered on June 3,
2015. As stated at the Tcmportt.ry lnj unction hearing, a purpose of his cxpc11 review was to
ensure that the !om1at of those images complied with the technical fom1at and metadata
requirements that the Court imposed on Counter-Defendants in its injunction against lht:m, as
opposed to review of the substantive content.
Pursuant to Tex. R. Civ. P. 58, Amcripro also adopts herein by rclercncc its response to
Interrogatory No. 1 above.
J~TERROGATORY ~0. 9: Identify all files duplicated or copied either electronically or in
paper by Defendant or any of its consultant~ rrom the forensic images or any and all electronic
devices of Plaint ills,
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29
A~S\\iER:
Pursuant to Tex. R. Civ. P. 192.5 and 193.3(a) & (C), Amcripro withholds from this
answer the identity of any of the Iiles that Ameripro 's counsel or their staff have copied or
duplicated from lbrensic images, based on the attorney work~product privilege. Counter-
Defendants provided the forensic images of their electronic devices after the Cowt issued its
rulings at the May 26-27. 2015 Temporary Injunction hearing -i.e., well after litigation ·was not
only anticipated, but actually on file.
Amcripro also objects to identifying each copy or duplication it makes of any images, on
the ground that the request on ils face w·ould invade the attorney work-product and attorney-
client privileges, and would subject Amcripro to undue burden, unnecessary expense,
harassment. and annoyance, and that it exceeds the scope of Rule l9Ts requirements (for
example, the request would have Arncripro identify each time it makes a copy of a document to
use as an exhibit).
Subject h> and without waiving the foregoing, Amc-ripro's testifying cxpel1, Roy Rector,
made a forensic copy of the external hard drive that Countcr·Dcfendants delivered on June 3,
2015, for purposes of reviewing whether the rormat of lhe forensic images complied with the
technical tormat and mctadata requirements that the Court imposed on Counter-Dclendants.
l~TERROG.t\ TORY NO. 10: ldcnti!'y all person or persons who have reviewed or have been
provided with electronic or paper iilcs from the forensic images or any and all electronic devices
of Plaintiff:-., and as to each person, separately and distinctly, identify the person or persons and
the files provided to such person or rcvic ..vcd by :mlation would subject Aml..!ripro to undue burden. unnecessary
expense, harassment, and annoyance, and that it exceeds the scope of Rule !97's requirements.
There are over 26,000 Amcripro spreadsheets on one Nasserfar lhw11b drive alone, and
identifying each lite that has been "provided" to or "reviewed" by Amcripro altomcys or its
consultants would be unduly bmdcnsomc and calculated solely to harass.
:w
30
Subject to and without waJv1ng. the foregoing, on or about June 3, 2015, Countcr-
DcCendants themselves provided Amcripro 's testifying expert, Roy Rector, with all of the files
that were contained on the thumb drive delivered on June 3. 2015. Pursuant to Tex. R. Civ. P.
197.2(c), Amcripro refers Counter-Defendants to the contents of that thumb drive they provided.
Again, that thumb drive conlained over 26.000 documents, and the burden of itcmit:ing those
contents would be substantially the same for Countcr-Ddendants as it would be lor Ameripro.
lNTERBOGATOI~Y NO. 11: Separately and distinctly, as to Oak Mortgage. state, separately
and distinctly, as to each claim or cause or action asserted as a cross-claim by Defendant against
Oak Mortgage, the amount, if any, of economic loss, damage, specific lost sales transactions and
lost profits, if any, Defendant allegedly suffered as a result of any actions of Oak Mortgage, the
identity of all docum<.'nls or records, separately and distinctly, supporting or forming the bases of
such of Defendant's claimed economic loss, spccitic lost sales transactions and lost prolits, if
any, for each cause of action or claim asscncd by Defendant against Oak Mortgage, and the
identity of all persons with knowledge of such claimed economic loss spccitic, lost sales
transactions and lost profits., if any, allegedly suftcrcd by Defendant and the method and means
Defendant used to calculate the claimed economic, loss spccilic lost sales transactions and lost
profits, if any.
A~SWER:
This interrogatory inquires ahout matters described in Tex. R. Civ·. P. I32
Tex. Civ. Prac. & Rem. Code* 143.002 and Tex. Civ. Prac. & Rem. Code* l34A.004. and its
conspiracy with the other Countcr-Dcl't•ndants in the commission of those violations. Those
actual damages over a l(m~sccablc twelve-month period include Countc'r-Dcfcndams' joint and
several liability for the destruction of the mortgage practice at Amcripro's Lakeway office,
"'hich v.,.,as proximately caused by Oak Mortgage's (and each of Lhc other Countcr-Dcfcndnnts·)
commission nf each orthosc violations, in the amount of $1 ,974.405. 77, mulliplying Arncripro' s
average gross margin by lhc total pmduction volume 1 loan origination volume for 2014 lor Lhe
Lakeway branch ontcc.
Reasonable rtJl'ttiH;. As set I(H1h in Amcripro 's First Amended Petition, Amcripro is also
entitled to a reasonable royalty for Count(:r-Dcfcndants' unauthorized disclosure and/or usc of its
trade secrets pursuant to TUTSA, Tex. Civ. Prac. & Rem Code~ 134A.004(a). Pursuant to that
section, Amcripro will also present an alternate damage model measured by imposition of
liability for a reasonable royalty against Oak Mortgage and the other Counter-Defendants lor
their unauthol'[zcd usc or disclosure or Amcripro ·s track secret information (as de tined in that
statute). Ameripm reserves the right to supplement this portion of its ans\\rer with its calculation,
once Counter-Dcicndants comply with discovery by pmdltcing documents responsive to
Amcripro's second set of requests for produc1ion.
Pursuant to Tex. R. Civ. P. 58. Amcripro abo adopts herein by reference its response w
lnten·ogatory No. 2 above.
INTERROGATORY NO. 12: Separately and distinctly, as to Michael Nasserfar, slate,
separately and distinclly. as to each claim or cause of action asserted as a cross-claim by
Defendant against Michael Nasscrlar. the arnounl, if any, of economic loss, damage, specific lost
sales transactions and lost profits, if any, Dclendant allegedly suftercd as a result of any actions
of Michael Nasscrfar, the identity of all documents or records, separately and distinctly,
supporting or fonrting the bases or such or Dclcndam's claimed economic loss, specific lost sales
transactions and lost profits, if any J'lx each cause or action or claim asserted by Dctcndant
against Michael Nasserfiu, and the identity or all persons with knowledge of such claimed
economic loss specific. lost sales transactions and lost profits, if any, allegedly suffered by
Defendant and the method and means Dclcndanl used to calculate the claimed economic, loss
specific lost sales transactions and lost profits, If any.
ASSWER:
This interrogatory inquires about maucrs described in Tex. R. Civ. P. 194.2(d).
Therefi:>rc, in the event that Amcripro amends or supplements this answer at a later date,
Amcripro asserts its right to exclude its prior am.wer from evidence or Ji·om usc in impeachment,
pursuant to Tex. R. C'iv. P. 197.3.
Amcripro objects to the request to list ''the identity of all documents or records,
separately, and distinctly," on the ground that the n:questcd itemization exceeds 26.000
documents, is overbroad, and providing that identification would subject Ameripro to undue
burden, unnecessary expense. harassmcut, and annoyance, and on the ground that il exceeds the
23
33
scope of Rule l97's requirements which allow a party to ask for a description "in general" of the
·'factual bases for the party's claims or defenses" and not "to marshal all of its available proof"
that it intends to oiler at trial. l11e Temporary Injunction Order which the Court issued against
Counter-Defendants commanded them to provide Amcripro\ expert with forensic images of all
original source media which contain or did contain "Arncrtpro tiles or information." The thumb
drive of images that Countcr-Dclcndants have supplied in response to the Temporary l~junclion,
alone, contains over 26,000 Ameripro confidential spreadsheets. including lists of Amcripro
borrowers and Amcripro's internal financial records. They are among the thousands of stolen
documents which support each of Amcripro's economic loss claims against Nasscrfar and the
other Counter-Dclcndants.
Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have refused to produce documents that Amcripro \\ould usc in calcu.lating Amcripro 's
disgorgcmcnt. damages, which is part of Amcripro's economic claims. The Court's Temporary
Injunction found that Amcripro has a "probable right of recovery and likclihot1d of success on
the merits of its clajms." Despite that li.1cl, Counter-Defendants have reCused to produce
documents responsive to Ameripro's Second Set of Requests for Production, which wmtld
enable Amcripro to calculate its disgorgcmcnt damages claims. Ameripro will provide that
disgorgcment calculation when Counter-Defendants produce the source documents responsive to
Ameripro's second set ofrcqucst~ lol' production.
Subject to and without waiving lhc tlxegoing objections, Ameripro further answers as
fbllows.
Ameripro seeks disgorgcment damages against all Counter-Defendants.
Dis[lOrf:Jement.
As to Nassertar, Ameripro seeks disgorgcmcnt based on Nasscrlh( s conversion.
misappropriation. breaches of fiduciary duty, recovery fbr unjust enrichment as statutorily
allowed under Tex. Civ. Prac. & Rem. Code 9 l34A.004(a) (the Texas Unifonn Trade Secrets
Act or "TUTSA "), and conspiracy with the other Counter-Defendants in connection with their
breaches or fiduciary duty (and knowing participation in and aiding and abetting of same) and
acts of conversion.
Disgorgcment damages (including unjust enrichment) against Nassertar arc based on the
income that he and the other Coumer~Dcfendants have received lor their new Lakeway onicc
since January 16, 2015. the other bcncilts that they derived Jl·om having access to Amcripro 's
confidential information (including being able io gauge the viability of opening a Lakeway oflicc
and in shortening the normal time it \vould take to open a new branch). and for forfeiture of
amounts that Ameripro paid to Nasscrfar during the time period he was brt~aching his fiduciary
duties and was engaged in conversion and violations ofSection l34A.OOI, et seq. (which began
at least as early as October 30, 2014}. As shown as the hearing on Amcripro's Temporary
Injunction application and in depositions in this cause. Countcr-Dclcndanls' commission of the
conduct set out in the First Amended Counterclaim (including their conversion and
misappropriation or Amcripro 's internal linancial data and customer information, and
commission and knowing participation in breaches of fiduciary duly) enabled Nasscrlar and the
other Countcr~Detcndants to assess the linancial viability of opening a branch office in that same
locale as Ameripro, to jumps:tart the opening of a competing branch otlicc in shortened time and
commensurate cost savings, to unfairly compctt~ for Amcripro 's customers, to avoid the expense
24
34
of generating lbrms and templates and compiling spreadsheets and contact list infbm1ation, to
compare internal Amcripro pricing information in setting their mvn pricing, to wrongfully obtain
the value of using Amcripro 's confidential and proprietary information without authorization,
and to effectively duplicate Amcripro 's business, among other wrongful bcnclits they gained
through their conduct Ameripro is entitled lo recover lium Counter-Defendants, jointly and
severally. disgorgcmenl of the value of those receipts, avoided costs, and llther benefits,
including but not limited to the value of the above benefits and of their unlicensed usc of the
property which they took from Ameripro. As set forth in Amcripro's First Amended Petition.
Ameripro is also entitled to a rea~onablc royalty tbr Counter-Defendants' unauthorized
discl.osurc and;or usc or its trade secrets pursuant to TUTSA. For lbrfciturc damages, that
amount consists of $103,120.51, consisting of the income Ameripro paid to Nasserfar from
November L 2014 through the end or his employment during the period thaL Nasscrlar was
actively breaching his fiduciary dulics, engaged in conversion, in violation or Section 134A.001,
et seq., and in breach of his contracts.
Actual damages. Ameripro also seeks actual damages against all Coumcr-Detendants.
As to Nasserfar, Amcripro seeks actual damages based on Nasserfar·s breaches of liduciary duty,
misappropriation, conversion, breaches of his contracts, violations of Tex. Civ. Prac. & Rem.
Code~ 143.002 and Tex. Civ. Prac. & Rem. Code~ 134A.004, and his conspiracy with the other
Countcr-Delendants in the commission of those violations. Those actual damages over a
lorcsccable twelve-month period include Counter-Defendants' joint and several liability for the
destruction of the mortgage practice at Amcripro's Lakeway office, which was proximately
caused by Nasscrfar's (and each of the other Counter-Defendants') commission of each of those
violations, in the amount of$1,974,405.77, multiplying Arncripro's avemge gross margin by the
total production volume 1 loan origination vnlume for 2014 for the Lake\\•ay branch onice.
Pursuant to Tex. R. Civ. P. 58, Amcripro also adopts herein by reference its response to
Interrogatory No. 3 above.
INTERROGATORY NO. 13: Separately and distinctly, as to Michael Task, state, separately
and distinctly, as lo each claim or cause or action asserted as a cross-claim by Defendant against
Michael Task, the amount, if any, of economic loss. damage. specific lost sales transactions and
lost profits, if any, Defendant allegedly suffered as a result of any actions or Michael Task, the
identity of all documents or records, separately and distinctly, supporting or ibm1ing the bases of
such of Defendant's claimed economic loss, specific lost sales transactions and lost profits, if any
for each cause of action or claim asserted by Defendant against Michael Task, and the identity of
all persons with knowledge of such claimed economic loss specific, lost sales transactions and
lost prolits, if any. allegedly suffered by Defendant and the method and means Defendant used to
calculate the claimed economic. loss specific lost sales transactions and lost protits, if any.
A~SWER:
This interrogatory inqum.·s about math:rs described in Tex. R. Civ. P. 194.2(d).
Therefore, in the cvcnl that Amcripro amends or supplements this answer at a later date,
Amcripro asserts its right to exclude its prior answer li·om evidence or from usc in impeachment,
pursuant to Tex. R. Civ. P. 197.3.
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35
Ameripro objects to the request to list ''the identity of all documents or records,
separately, and distinctly/' on the ground that the requested itemization exceeds 26.000
documents, is overbroad. and providing that idcntirication would subject Ameripro to undue
burden, unnecessary expense, harassment, and annoyance, and on the ground that it exceeds the
scope of Rule I97's requirements which allow a party to ask for a description "in general'' of the
''factual bases lor the party's claims or defenses" and not "to marshal all of its available proof'
that it intends to oflcr at triaL The Temporary Injunction Order which the Court issued against
Counlcr~Defendants comtnanded them to provide Amcripro's expert with forensic images or all
original source media which contain or did contain "Amcripro tiles or infom1ation." The thumb
drive of images that Counter-Defendants have supplied in response to the Temporary Injunction,
alone, contains over 26,000 Amcripro con fidcntial spreadsheets, including lists of Amcripro
bon·owcrs and Amcripro's internal tinan~iaJ n::cords. They arc among the thousands of stolen
documcob which support each of' Amcripro •s economic loss claims against Task and the other
Counter-Defendants.
Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have refused to produce documents that Amcripro would usc in calculating Ameripro 's
disgorgcment damages, which is part or Amcripro 's economic claims. The Court's Temporary
Injunction found that Amcripro has a "probable righl of recovery and likcl ihood of success on
the mcri.ts of its claims.'' Despite that fact, Counter-Defendants have refused to produce
documents responsive to Ameripro·s Second Set of Requests tor Production, which would
enable Amcripro to calculate its disgorgcmcnt damages claims. Amcripro will provide that
disgorgcmcnt calculation when Countcr-Dclcndants produce the source documents responsive to
Ameripro 's second set of requests for production.
Subject to and without waiving the li:.wcgoing objections, Amcripm fu11hcr answers as
follows.
Disgorgement. Amcripro seeks disgorgement damages against all Countcr-Detl:ndants.
As to Task, Ameripro seeks disgorgcmcnt based nn Task's conversion, misappropriation.
breaches of fiduciary duty, recovery fix unjust enrichment as statutorily allowed under Tex. Civ.
Prac. & Rem. Code ~ 134A.004(a) (the Texas Uniform Trade Secrets Act or "TUTSA"), and
conspiracy with the other Countcr-Dcfcndanb in connection with their breaches of fiduciary duty
(and knowing participation in and aiding and abetting of same) and acts of conversion.
Disgorgemcnt damages (including unjust enrichment) against rask are based on the
income that he and the other Counter-Defendants have received for their new Lakeway ofticc
since January 16, 2015, the other bcr``:~lits that they derived from having access to Amcripro 's
conlidential inlonnation (including being able to gauge the viability of opening a Lakeway ofticc
and in shortening the normal time it would take to open a new branch), and for forlciturc of
amounts that Amcripro paid to Task during the time period he was breaching his fiduc1ary duties
and was engaged in conversion and violations of Section 134A.OO I, ct .'>eq. (which began at least
as early as October 30, 2014). As shown as the hearing on Ameripro's Temporary Injunction
application and in depositions in this cause. Countcr~Dcfendants' commission of the conduct set
out in the First Amended Countc:rclaim (induding their conversion and misappropriation of
Amcripro's internal financial data and customer inforrnation. and commission and kno\ving
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36
participation in breaches or fiduciary duty) enabled Task and the other Countcr-Dc1cndant:-, to
assess the financial viability or opening a branch office in that same locale as Amcripro, lo
jumpstart the opening of a competing branch office in shortened time and commensurate cost
savings. to unl'airly compete frms
and templates and compiling spreadsheets and contact lisl intomtation, to compare internal
Ameripro pricing info1111ation in setting their own pricing, to wrongfully obtain the value of
using Ameripro's confidential and proprietary inf'onnation w·ithout authorization. and to
crtectivcly duplicate Amcripro's business, among other wrongful benefit~ they gained through
their conduct. Amcripm is entitled to recover from Counter-Dctcndants, jointly and severally,
disgorgcmcnt of the value of those receipts, avoided costs. and other benefits, including but not
limited to the value of the above bcnctits and of their unlicensed usc of the properLy which they
took from Ametipro. As set forth in Ameripro's First Amended i>etition, Amcripro is also
entitled to a reasonable royalty for Counter-Defendants' unauthorized disclosure and'or usc of its
trade secrets pursuant to TUTSA. For f(xfciturc damages, that amount consists of $34,861.73,
consisting of the income Amcripro paid to Task from November I, 2014 through 1.hc end of his
employment, during the period that Task was actively breaching his fiduciary duties, engaged in
conversion. in violation of Section 134A.OO l. er seq., and in breach of hi~ contracts.
Actual damages. Ameripro also see-ks actual damages againsl. all CoLJntcr-Dcfcndants.
As to Task, Amcripro seeks actual damages based on Task's breaches of liduciary duty~
misappropriation. conversion, breaches of his contracts. violations of Tex. Civ. Prac. & Rem.
Code* l43JI02 and Tex. Civ. Prac. & Rem. Code~ 134A.004, and his conspiracy with the other
Coantcr-Dcfendants in the commission of those violations. Those actual damages over a
foreseeable twelve-month period i.ncludc Counter-Defendants' joint and several liability tor the
destruction of the mortgage practice at Ameripro 's Lakeway onicc, which was proximately
caused by Task's (and each of the o!hcr Countel'-Dcfcndants') commission of each of those
violations, in the amount of$1.974,405.77, multiplying Amcripro's average gross margin by the
total production volume/ loan origination volume fc)r 20 14 for the Lakeway b.-anch ollicc.
Pursuant to Tex. R. Civ. P. 58, Ameripro also adopts herein by reference its response to
JntetTOgatory No. 4 above.
INTERROGATORY ~0. 14: Separately and distinctly, as to Ty Gosnay, sLate, separately and
distinctly, as to each claim or cause of action asserted as a cross-claim by Defendant against Ty
Gosnay. the amount, if any, of economic loss, damage, specific lost sales transactions and lost
profits, if any, Defendant allegedly suiTercd as a result or any actions of Ty Gosnay, the identity
of all documents or records, separately and distinctly, supporting or forming the bases of such of
Defendant's claimed economic loss, specific lost sales transactions and lost profits, if any lor
each cause of action or claim asserted by Defendant against Ty Gosnay, and the identity of all
persons with knowledge of such claimed economic loss spt.-cific. lost sales transactions and lost
profits, if any~ allegedly suncrcd by Dc!cndant and the method and means Dclcnd1mt used to
calculate the claimed economic, loss specific lost sales transactions and lost profits, if any.
A~SWER:
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This interrogatory inquires about matters described in Tex. R. Civ. P. l94.2(d).
Therefore, in the event that Amcripro amends or supplements thi~ ansvvcr al a later date,
Amcripro asserts its right to excludl! its prior answer from evidence or from usc in impeachment,
pursuant to T~:~x. R. Civ. P. 197.3.
Amcripro objects to the request to list "the identity of all documents or records.
separately, and distinctly," on the ground that the requested itemization exceeds 26,000
documents, is overbroad, and providing that identi ticaLion would subject Amcripro to undue
burden, unnecessary expense, harassment, and annoyance, and on the ground that it exceeds the
scope or Rule l97's requirements \\'hich allow a party to ask for a description "in general" ofthe
••factual bases tor the party's claims or defenses" and not "to marshal all of its available proor'
that it intends to offer at ttial. The Temporary Injunction Order which the Court issued against
Counter~Defendants commanded them to provide Ameripro's expert with forensic images of all
original source media which contain or did contain ·'Ameripro files or infonnation." The thumb
drive of images that Counter~ Defendants have supplied in response to the rcrnporary Injunction,
alone, contains over 26,000 Amcripro conlich:ntial spreadsheets, including lists of Ameripro
borrowers and Ameripro's internal nnandal records. They are among the thousands of stolen
documents which support each of Amcripro's economic loss claims against Gosnay and the
other Counter-Defendants.
Amcripro further objects to the interrogatory as harassing, in that Counter-Defendants
have refused to produce documents that Am.cripro would use in calculating Amcripro 's
disgorgcment damages, which is part of Amcripro's economic claims. The Court's Temporary
Injunction found that Amcripm has a '"probrtblc right of recovery and likelihood or success on
the merits of its claims." Despite that fact, Counter-Defendants have rcfhscd to produce
docwncnts responsive to Amcripro 's Second Set or Requests for Production, which would
enable Ameripro to calculate its disgorgemcnt damages claims. Amcripro will provide that
disgorgcmcnt calculation \\<'hen Counter-Defendants produce the source documents responsive to
Ameripro 's second set of requests for production.
Subject to and \Vithout waiving the lorcgoing o~jcctions, Amcripro li..uthcr answers as
follows.
Disgorgement. Ameripro seeks disgorgcmcnt damages against all Countcr-Dclcndants.
As to Gosnay~ Ameripm seeks disgorgcment based on Gosnay's conversion, misappropriation,
breaches of tiduciary duty, recovery for unjust enrichment as statutorily allowed under Tex. Civ.
Prac. & Rem. Code§ 134A.004(a) (the T\.~xas Unifom1 Trade Secrets Act or "TUTSA"), and
conspiracy with the other Counter-Defendants in connection with their breaches of fiduciary duty
(and knowing participation in and aiding and abetting or same) and acts of conversion.
Disgorgemcnt damages (including unjust enrichment) against Gosnay are based on the
income that he and the other Counter-Defendants have received for their new Lakeway ortkc
since January 16, 2015, the other bcnclits that they derived ri·om having access to Amcripro 's
confidential infonnation (including being able to gauge the viability or opening a Lakeway office
and in shortening the nom1al time it \Vould take lo open a new branch), and lor forfeiture of
amounts that Amcripro paid to Gosnay during the time period he was breaching his fiduciary
duties and was engaged in conversion and violations of Section 134A.OO 1, (!f seq. (which began
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38
at least as early a."i October 30, 2014). As shown a:-: the bearing on Amcripro's Temporary
Injunction application and in depositions in this cause, Counter-Defendants' commission of the
conduct set out in the First Amended Counterclaim (including their conversion and
misappropriation or Amcripro's internal financial data and customer infonnation. and
commission and knowing participation in breaches or fiduciary duty) enabled Gosnay and the
other C'ountcr-Dctcndanls Lo assess the Jinancial \'iability of opening a branch office in that same
locale as Amcripro, to jumpstati the opening of a competing branch otlicc in shortened time and
commensurate cost savings, to unfairly compete for Ameripm's customers, to nvoid the expense
of generating forms and templates and compiling spreadsheets and contact list intormation, to
compare intcmal Amcriprt:l pricing information in setting their own pricing, to wrongfully obtain
the value or using Amcripro's contidcntial and proprietary information wilh<. R. Civ. P. 194.2(c).
Thcrcf(m;, in the event that Amcripro amends or supplements this answer at a later date,
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39
Amcripro asserts its right to exclude its prior answer from evidence or from use in impeachment.
pursuant to Tex. R. Civ. P. 197.3.
Ameripro objects to the request to identify "all racts" and "dates'' which it contends
constitute a breach of NasscrJar's Employment Agreement, on the grounds of overbreadth, and
that that responding to the entirety or the requested information would subject Amcripro to
undue burden, unnecessary expense, harassment, and annoyance. and on the ground that it
exceeds the scope of Rule !97's requirements which allow a party lo ask for a description "in
general'' of the "tactual bases fbr the party's claims or defenses" and not "to marshal all or its
available proof'' that it intends to otTer at triaL For example, Nasserfar's Employment
Agreement (and other contracts) provided tl13t all of the documents and infom1ation that was
provided to him during lhe course of his employment at Amcripro, or that he generated during
his employment at Amcripro, is Ameripro's sole property, and fmiher provided that he could not
retain, usc, or disclose any of that information, let alone to a competitor. Nasscrlfu's thumb
drives, by themselves, show that he took thousands or Amcripro confidential spreadsheets and
other documents ·with him after he resigned fi·om the company, in breach of his Employment
Agreement and other contracts. Similarly, all Ameripro documents contained on the thumb drive
received on June J, 2015 from Counter-Defendants (over 26,000 document'>) arc documents
\\'hich form the basis tbr Amcripro·~ claim against Nasscrfar for breach. Similarly, Nasscr1:1r's
ongoing communications from October 30, 2014 through January 16, 2015 ('>vhilc Nasser tar was
still employed with Ameripro and serving a!'. its fiduciary) with Ameripro's competitor, Oak
Mortgage, about setting up a competing branch violated his contracts. Itemizing all such dates
and thousands of documents would subject Amcripro to undue burden, unnecessary expense.
harassment, and annoyance.
Subject to and without waiving the foregoing l)~jcctions, Ameripro lhrthcr answers as
Jbllows.
Pursuant to pursuant to Tex. R. Civ. P. 58, 193.5, and t97.2(c), Amcripro adopts and
incorporates by reference into this answer:
t) the transcripts of the direct examination testimony of Chad Ovcrhauscr and Roy
Rector, and the cross examinations of Nasserlar and Task. given at the May 26-
27, 2015 hearing on Amcripro's application for Temporary Injunction (Amcripro
understands that Counter-Defendants have ordered transcripts of that testimony in
connection with Counter-Defendants' appeal of the Temporary Injunction entered
against them), describing the Amcripro property taken in violation of his contracts
(including general ledgers, Joan prolitability reports, consumer loan applications
and files, pro rormas, and the categories of infom1ation listed in the Temporary
Injunction Order which the Court lbund that Counter-Defendants took from
Ameripro), his failure to provide a list or business opportunities and loans in
process and to cooperate in closings. and his work lbr a competitor while still
employed and serving a,_ a fiduciary for Ameripro;
2) Applicant's [Amcripro's] Exhibit Nos. AX 1-24, 27-3R~ 42-50, 53-70, 75, 78-R5,
which were admitted into evidence at the May 26-27, 2015 injunction hearing.
Those exhibits include the contract!':~ that Nasserlar and the other Individual
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40
Countcr·Dcfcndants signed with Amc1ipro, examples of the internal confidential
rccordi> of Ameripro which Countcr~Dcfcndants mi.sappropriated, and c-mails and
text messages among C'ountcr-Delcndants and with Amcripro customers
(including builder customers) in which Amcripro's confidential information
taken, disclosed, and used, and during which the Individual Counter-Defendants
began assisting Amcripro 's competitor Oak Mortgage in competing with
Amcripro even while the Individual Counter-Defendants were still under
liduciary obligations with Amcripro (that same conduct also violated the
Individual Counter-Defendants' contracts);
1) The forensic: images that Counter-Defendants provided to Ameripro (received on
or about June 3, 2015), pursuant to the June 16, 2015 Temporary Injunction
Order, of thousands of Amcripro confidential spreadsheets, loan applications and
credit reports of consumers who submitted applications to Amcripro, and other
records that Counter-Defendants took, disclosed, and used in violation or statute,
common law, and the Individual Counter-Defendants' contracts.
As stated by the Court in the Temporary Injunction Order, "based upon the evidence" at lhat
May 26-27 hearing (including the evidence listed in items I and 2 immediately above), the Court
found that Amcripro ''met its burden to establish that it has a probable right of recovery and
likelihood of success on the merits on its claims for misappropriation of trade secrets and
confidential and proprietary infom1ation, conversion, breach of fiduciary duty, tortious
interference with contract, and breach of contract" and that Counter-Defendants '"have attempted
to pcm1anently destroy Amcripro documents and files, and have taken li·mn Ameripro's
computer network and premises contidential and proprietary information belonging to Amcripro
(including but not limited to Amcripro's pricing infmmation, general Ledgers, prolil and loss
statements, loan profitability reports, statements of income. customer and rclciTal lists and
contract information, builder preferences or builder contacts or cell phone numbers, pro formas,
concession fees, borrower inlormation, transaction details, templates, loan set-up sheets, c-mails
exchanged using Amcripro servers, correspondence . and other information that had been stored
on Amcripro 's computer network or in Ame1ipro olliccs) (hcrcinallcr ·Amcripro lnlbrmation ')."
That propc11y contractually belonged to Amcripro, and Counter-Defendants' taking, disclosure.
and use of that information was without authorization.
Moreover, assuming that Counter-Defendants complied with the Temporary Injunction
Order in good faith. Lhe forensic images that Countt.:r-Dcfendants provided lo Ameripro on or
about June 3, 2015, were supposed to he media which "contains or did contain Ameripro Iiies or
infonnation" -· none of which Nasscrfar should have had in his possession alter January 16,
2015. had he been in compliance with his Employment Agrccrncnt. Therefore, all such
Ameripro files and inlonuation that Nasscrfi:rr and his co-conspirators provided on June 3, 2015,
are among lhe documents which support Amcripro's claims for breach of Nasscrfar's
Employment Agreement.
Persons with knowledge or Nasscrfar's breach include Chad Overhauser, President,
Ameripro Funding, Inc., 8300 N. Mopac Expressway, Suite 120, Austin, Texas 78759 C1 0 Susan
P. Burton, Graves Dougherty Hearon & Moody, 401 Congress Ave., Stc. 2200, Austin. Texas
78701, (512) 480-5738; James Anagnos, Director. lnf'onnation Technology. Tcnura Holdings,
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41
lnc., !BOON. Mopac Expressway, Suite 220, Austin, Texas 78759, c/o Susan P. Burton. Graves
Dougherty Hearon & Moody, 401 Congress Ave .. Ste. 2200, Austin, Texas 78701, (512) 480-
5738, and (as shown by admissions against interest at the Temporary Injunction hearing and in
depositions) Michael H. Nasscrfar, Vice President, Oak Mortgage Group, Inc., c'o Wm. Charll.!s
Bundren, Wrn. Charles Btmdrcn & Associatt.!s Law Group, PLLC, 2591 Dallas Parkway, Suite
300, Frisco, Texas 75034, (972) 624-5338: Michael E. Task, Austin Area Sales Manager. Oak
Mortgage Group, Jnc., clo Wm. Charles Bundren. Wm. Charles Bundren & Associates Law
Group, PLLC, 2:Wl Dallas Parkway, Suite 300, Frisco, Texas 75034, (972) 624-5338: Tycord R.
Gosnay. Residential Mortgage Loan Originator, Oak Mortgage Group, Inc., c.oo \Vm. Charles
Bundren, \Vm. Charles Bundren & Assncialcs Law Group. PLLC. 2591 Dallas Parkway, Suite
300, Frisco. Texas 75034, (972) 624-5338: James Holden Thomas, Chief ExccuLivc OCfic:cr, Oak
Mortgage Group, Inc., c/o Wm. Charlc!> Bundren. \Vm. Charles Bundren & Associates L:nv
Group, PLLC, 2591 Dallas Parkway, Suite 300, Frisco, Tl"xas 75034, (972) 624-5338.
I~TERROGATORY ~0. 16: Separately and distinctly, state all facts. including dates and
actions which Defendant contends con:-;tilutes a breach of the Task Empk)ymcnt Agreement, and
the identity or aU documents fom1ing the bases of Defendant's contention or a breach and the
identity of person or persons who have knowledge of lhc alleged breach.
A:'\ISWER:
This interrogatory inquires about matters described in Tex. R. Civ. P. l94.2(c).
Therefore, in the event that Amcripro amends ur supplements this answer at a later date,
Amcrit'ro asserts its righlto exclude its prior answer from evidence or from use in impeachment.
pursuant to Tex. R. Civ. P. 197.3.
Ameripro objects to the request to identify .. aU facts" and "dates" which it contends
constitute a breach of Task's Employment Agreement, on the grounds of overbreadth, and that
that responding to the entirety of the requested inlhmmtion would subject Amcripro to undue
burden, unnecessary expense, harassment, and annoyance, and on the ground that it exceeds the
scope of Rule !97's requirements which allow a patty to asl<. for a description "in general" or the
"factual bases f{lr the party's claims or defenses'' and not "to marshal all or its available proof'
that it intends to offer at trial. For example, Task's Employment Agreement (and other
contracts) provided that all of the documeng and information that was provided to him during
the course of his employment al Ameripro, or that he generated during his employment at
Ameripro, is Amcripro 's sole prope11y, and further provtdcd that he could not retain, usc. or
disclose any of that infonnation, let alone to a competitor. The box of confidential Amcripro
records Task took to his home, by themselves, show that he look Arm:ripro consumer
inrormation and confidential financial documents wilh him after he resigned rrom the company,
in breach of his Employment Agreement and other contracts. Similarly, all Amcripro documents
contained on the thumb drive received on June J, 2015 from Counter-Defendants (over 26.000
documents) are documents which form the basis t<:w Amcripro 's claim against Task for breach.
Similarly, Task's ongoing communications with Amcripro 's competitor, Oak Mortgage (while
Task was still employed with Amcripro and serving as its fiduciary), about selling up a
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42
competing branch violated his contracts. Itemizing all such dates and thousands or documents
would subject Amcripro to undue burden, unnecessary expense, harassn1enl, and annoyance.
Subject to and without waiving Lht~ foregoing objections, Amcripro further answers as
follows.
Pursuant to pursuant to Tex. R. Civ. P. 5R, 193.5, and l97.2(c), Amcripro adopts and
incorporates by relcrencc inLo this answer:
1) the transcripts ol' the direct examination testimony or Chad Ovcrhauscr and Roy
Rector, and the cross examinations of Nasscrfar and Task, given at the May 26-
27, 2015 hearing on Amcripro 's application for Temporary Injunction (Ameripro
understands that Counter-Defendants have ordered transctipts of that testimony in
connection with Counter-Defendants' appeal orthe Temporary lnjttnction entered
against them), describing the Amcripro property taken in violation of his contracts
(including general ledgers, loan profitability reports, consumer loan applications
and Jiles, pro formas, and the categories of infom1ation listed in the Temporary
Injunction Order which the Court tound that Counter-Defendants took from
Ameripro), his failure to provide a lisl or business opportunities and loans in
process and to cooperate in closings, and his work for a competitor while still
employed and serving as a iiduciary fi.-,r A meripro~
2) Applicant's [Amcripro's] Exhibit Nos. AX 1-24, 27-38: 42-50, 53-70, 75, 78-85,
which were admitted into evidence at the May 26-27, 2015 injunction hearing.
Those exhibits indudc the contracts that Task and the other Individual Counter-
Defendants signed with Amcripro, examples of the internal conlidentiai records
of Amcripro which Counlcr-Dclendants misappropriated, and c-mails and text
messages among Counter-Defendants and with Amcripro customers (including
builder customers) in whkh Amcripro 's confidential infonnation taken, disclosed,
and used, and during which the Individual Countcr-DcJcndants began assisting
Amcripro's competitor Oak Mortgage in competing with Amcripro even v:hilc the
Individual Coumcr-Detcndants were still under fiduciary obligations with
Amcripro (that same conduct also violated th~ Individual Countcr-Delcndams'
contracts);
3} The forensic images thai Ccnm1er-Dcfcndants provided to Ameripro (received on
or about June 3, 2015), pursuant to the June 16. 2015 Temporary IJ\junction
Order, of tlmusands or Amcripro ~.:onlidcntial spreadsheets~ loan applications and
credit reports of consumers who submiltcd applications to Ameripro, and other
records that Countcr-Dcn.mdants took, disclosed, and used in violation of statute,
common law, and the Individual Counter-Defendants' contracts.
As stated by the Court in the Temporary Injunction Order, "based upon the evidence" at that
May 26-27 hearing (including the evidence listed in items 1 and 2 immediately above), the Court
found that Amcripro ··met its burden to cslablish that it has a probablr.: right of recovery and
likelihood of success on the merits on its claims for misappropriation of trade secrets and
con.lidential and proprietary information, conversion, breach or fiduciary duty, tortious
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43
interference with contract, and breach of contract" and that Counter-Defendants "have attempted
to pcm1anenlly destroy Amcripro documents and tiles, and have taken H·om Amcripro 's
computer network and prcn1iscs conlidcnt1al and proprietary information belonging to Amcripro
(including but nol limited to Amcripro's pricing information, general ledgers, profit and loss
statements, loan profitability reports, statcnwnts of income, customer and referral lists and
contract information~ builder preferences or builder contacts or cell phone numbers. pro formas.
concession fees, borrower inlormation, transaction details, templates. loan set-up sheets, c-mails
exchanged using Amcripro servers, correspondence, and other information that had been stored
on Amcripro's computer network or in Amcripro ollkcs) (hereinafter 'Amcripro Information')."
That property contractually belonged to Ameripro, and Counter-Defendants' taking, disclo~urc,
and usc of that inl(mnation was without authorization.
Moreover, assuming lhal Counter-Defendants complied with the Temporary Injunction
Order in good faith~ the forensic images that Counter-Defendants provided to Amcripro on or
about June 3, 2015, were supposed to be media which "contains or did contain Amcripro Jiles or
information" ·-- none of which Task should have had in his possession alier January 16, 2015.
had he been in compliance vvith his Employment Agreement. Thercl'l1rc, all such Amcripro Iiles
and infotmaticm that Task and his co-conspirators provided on June 3, 2015, arc among the
documents which suppot1 Ameripro's claims lor breach of Task's Employment Agreement.
Persons with knowledge of Task's breach include Chad Ovcrhauscr, Prc:;ident, Ameripro
Funding, fnc .• 8300 N. Mopac Expressway, Suite !20, Austin, Texas 78759 c.·o Susan P. Bw1cm,
Graves Dougherty Hearon & Moody, 401 Congress Av<..~ .• Ste. 2200, Austin, Texas 7g701, (512)
480~5738; James Anagnos, Director, lnCormation Technology, Tenura Holdings, Inc., 8300 N.
Mopac Express\vay, Suite 220, Austin, Texas 78759, c;o Susan P. Burton, Graves Dougherty
Hearon & Moody, 401 Congress Ave., Ste. 2200, Austin. Texas 78701, (512) 480·5738, and (as
shO\\·n by admissions against interest at the Temporary rnjunction hearing and in depositions)
Michael H. Nasscrfar, Vice President, Oak Mortgage Group, Inc., cJo \A/m. Charles Bundren,
Wm. Charles Bundren & Associates Law Group, PLLC, 2591 Dallas Parkway, Suite 300. Frisco,
Texas 75034, (972) 624-5338; Michael E. rask, Austin Area Sales Manager, Oak Mortgage
Group, Inc., c..o Wm. Charles Bundren, Wm. Charles Bundren & Associates Law Gwup, PLLC
2591 Dallas Parkway, Suite 300, Frisco, Texas 75034. (972) 624-5338: Tycord R. Gosnay.
Residential Mortgage Loan Originator, Oak Mm1gagc Group, Inc., c/o Wm. Charles Bundren,
Wm. Charles Bundren & Associates Law Group, PLLC. 2591 Dallas Park\vay, Suite 300, Frisco,
Texas 75034. (972) 624-5338; James Holden Thomas, Chief Executive Ofticcr, Oak Mortgage
Grc•up, [nc., c!o Wm. Charles Bundren, Wm. Charles Bundren & Associates Law Group, PLLC,
2591 Dallas Parkway, Suite 300, Frisco. Tcxas 75034, (972) 624-5338.
I:'IIITERROGATORY NO. 17: Separately and distinctly, state all facts, including dates and
actions which Defendant contends constitutes a breach or the Gosnay Employment Agreement,
and the identity or all documents fom1ing the bases or Defendant's contention of a breach and the
identity of person or persons who have knowledge of the alleged breach.
A.:'IIISWER:
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44
This interrogatory inquires about matters described in Tex. R. Civ. P. 194.2(c ).
Therefore, in the event that Amclipro amends or supplements this answer at a later date,
Amcripro asserts Its right to exclude its prior answer from evidence or fium usc in impeachment.
pursuant to Tex. R. Civ. P. 197.3.
Amcripro objects to the request to idc..'ntif); "all facts" and "dates" which it contends
constitute a breach of Gosnay's Employment Agreement, on the grounds of overbreadth. and that
that responding to the entirety of the rcquc~ted infcmnation would subject Amcripro to undue
burden, unnecessary expense, harassment. and annoyance, and on the ground that it exceeds the
scope or Rule !97's requirements which allov.c :I party to ask for a description "i.n general" ofthc
*'factual bases for the party's claims or defenses" and not ''to marshal all of its available proor·
that it intends to otTer at triaL For example, Go~nay'~ Employment Agreement (and other
contracts} provided that all or the documents and information that \Vas provided to him during
the course of his employment at Amcripro, or that he generated during his employment at
Amcripro, is Amcripro's sole property, and further provided that he could not retain, usc, or
disclose any of that information, let alone to a competitor. Gosnay and Lhc other Counter-
Defendants even forgot to change Amcripro' s address on forms they downloaded (rom
Amcripro's computers, before using them at 1J1cir new competing business. Similarly, all
Amcripro documents contained on the thumb drive received on June 3, 2015 from Counter-
Defendants (over 26,000 documents) arc documents which !bnn the basis for Ameripro's claim
against Gosnay fnr breach. Similarly, Gosnay's ongoing communications with Amcripm's
competitor, Oak Mortgage (while Gosnay was still employed with Amcripro and serving as its
fiduciary), about setting up a competing branch violated hi$ contracts. Itemizing all such dates
and thousands of documents would subject Amcripro to undue burden. unnecessary expense,
harassment, and annoyance.
Subject lo and without waiving the foregoing objections, Amcripro further answers as
follows.
Pursuant to pursuant to Tex. R. Civ. P. 58, 193.5, and 197.2(c), Amcripro adopts and
incorporales by reference into this answer:
I) the tmnscripts of the direct examination testimony of Chad Ovcrhnuscr and Roy
Rector, and the cross examinations of Nasscrfar and Task, given at the May 26-
27, 2015 hearing on Am~ripro\; application for Temporary Injunction (Amcripro
understands that Counter-Defendants have ordered transcripts or that testimony in
connection with Counter-Dcfend~mls' appeal or the Temporary Injunction cnlcrcd
against them), describing the Amcripro property taken in violation of his contracts
(including general ledgers, loan proiitability reports, consumer loan applications
and files, pro formas, and the categories of inforrnation listed in the Temporary
Injunction Order which the Com't lbund that Counter-Defendants took thm1
Amcripro), his failure to provide a list of business opp011unities and loans in
process and to cooperate in closings, and his work lbr a competitor while still
employed and serving as a fiduci:Iry ll1r Amcripro;
2) Applicant's [Amcripro's] Exhibit Nos. AX. 1-24. 27~38: 42-50,53-70, 75, 78-85,
which were admitted into evidence at lhc May 26-27, 2015 injunction hearing.
35
45
Those exhibits include the contract!ii that Gosnay and the other Individual
Counter-Defendants signed with Amcripro, examples or the intcmal confidential
records of Amcripro which Counter~Dclendants misappropriated. and c-mails and
text messages among Countcr-Dcf160 S.W.3d 19L 200 (Tex. App.- Fort Wm1h 2005, no peL).
~9
49
INTERROGATORY NO. 19: As to each separate and distinct Plaintift: identity the
specific electronic me or paper lllc Defendant contends each separate Plaintiff used without
pcnnission or authorization from Defendant, the date of the usc, and the person or persons who
have knowledge of such alleged usc, and idcmify anu describe all damages or economic loss and
the methods and means of calculating ail damages or economic loss. separately and distinctly as
to each electronic file or paper file and Plainti 1"1: Defendant contends Defendant suffered as a
result of such use.
ANS\VER:
This imcn·ogatory inquires about maltct:i described in Tex. R. Civ. P. 194.2(c) & {d).
TI1creforc, in the event that Atncripro amends t)r supplements this answer at a later date,
Amcripro asserts its right to cxdudc its prior answer from evidence or from usc in impeachment,
pursuant to Tex. R. Civ. P. 197.3.
Pursuant to Tex. R. Civ. P. 197.2, the answ1.~r to thifl interrogatory may be ascertained or
derived from the June 3. 2015 thumb drive. and the responsive documents consi:-;l of all
Amcripro files contained on that thumb drive. Amcripro objects to the request to identify each
of the 26,000+ documents on that thumb drive, and each individual date of usc (which is
available to Counter-Defendants in the metadala for those 26,000+ documents), on the ground
that to do so would subject .Amcripro to undue burden, unnecessary expense, harassment, and
annoyance. The entirety of the Ameripro Iiles contained on the thumb drive that Counter-
Defendants gave to Ameripro on June 3, 2015 (as commanded by the Temporary Injunction
Order) arc documents responsive to thi:-. interrogatory, and apply to each of the Countcr-
Dctendants individually: each of them actively participated in the misappropriating those
documents for usc in their competing business, were co-conspirators, and are jointly and
severally liable for the conduct of each other. Moreover, Counter-Defendants j.Qintly produced
those Ameripro confidential documents (•vhich lawfully should not have been in Counter-
Defendants' possession), and their joint posscs1.ion of those records gives rise to the legal
presumption that they each used it to Ameripro's detriment! Counter-Defendants did not have
Ameripro's authorization to usc (or even to pos~css) any of the Amcripro records on the Jlmc 3,
2015 thumb drive.
Pursuant to Tex. R. Civ. P. 58, Amcripro also adopts herein by rcrcrcnce its response to
Interrogatory Nos. 2-5, and ll·~ 14 above as th\.~Y relate to damages, and its answer to
Interrogatory No. 18, which are also responsive to this interrogatory. Damages relating to
Counter-Defendants' misappropriation of Arncripro's confidential records while they were
setting up a competing onice in the same locale income, in particular, include disgorgcmcnt
damages. Ameripro will supplement its response to this interrogatory once Counter-Defendants
produce records in response to Arncripro's second set of requests for production.
Persons \vilh knowiC'dgc of Countcr-Dclcndanl'>' conduct include Chad Overhauscr,
President, Amcripro Funding, Inc .. 8300 N. Mopac Expressway, Suite I :w. Austin. Texas 78759
c/o Susan P. Burton . Graves Dougherty Hearon & Moody, 40 I Congress Ave .. Stc. 2200, Austin,
'Hill, supra, 2011 WL 5n06l *5; Conley, supra, 1999 \VL 89955 *S: lAC. supm, I nO S.W.3d at 200.
40
50
Texas 7R70 I, (5 I 2) 480-5738~ James Anagnos, Director. lnfommtion T<.~chno!ogy. Tcnura
Holdings. Inc., 8300 N. Mopac Expressway. Suite 220, Austin, Texas 78759, c/o Susan P.
Burtonj Graves Dougherty Hearon & Moody, 40 I Congress Avc., Slc. 2200, Austin, Texas
7870 I, (5 I2) 480-5738, and (as shown by admissions against interest at the Tcmpomry
Jnjunction hearing and in depositions) Michael H. Nasscrfhr, Vice President, Oak M(1rtgagc
Group, Inc., c/o Wm. Charles Bundren. Wm. Charles Bundren & Associates Law Group. PLLC,
2591 Dallas Parkway, Suite 300, Frisco, Texas 75034, (972) 624-5338: Michael E. Task, Austin
Area Sales Manager. Oak Mortgage Group, Inc .. C/O Wrn. Charles Bundren, Wm. Charles
Bundren & Associates Law Group, PLLC, 2591 Dallas Parkway, Suite 300, Frisco, Texas
75034, (972) 624-5338; Tycord R. Gosnay, Residential Mortgage Loan Originator, Oak
Mortgage Group, Inc., c/o Wm. Charles Bundren, Wm. Charles Bundren & Associates Law
Group, PLLC, 2591 Dallas Parkway, Suite 300, Frisco. Texas 75034, (972) 624-5338: James
Holden Thomas, Chief Executive Ofliccr, Oak Mortgage Group, Inc., c;o Wm. Charles Bundren,
Wm. Charles Bundren & Associates Law Group, PLLC. 2591 Dallas Parkway, Suite 300, Frisco,
Texas 75034, (972) 624-5338.
41
51
VE.RlFICATIO~
STAT£ OF TEXAS §
§
COUNTY Olj' TRAVIS §
BEFORE ME. th~: um.lcrsigncd authority. on thi~ day pL'rsonaHy appci.trcd Chad
Ovcrhauser, President of Am~ripro Funding, In~ .. known to me to he the person \vhos~: signature
is amxed belo\.V, and upon his oath. stal\'!d that he answered the foregoin9'interrogatories in the
capacity therein set out and that such answers (exclu 'ng legal wnc siom;} arc within his
personal knowledge and are !rue and con~ ct. . ' . . /J .. ..,
AY11'0r
1 o WNni, 1, rNc .
/
" c " • « . ~ .•. ~ < • ••••••••• •• "'"' ..... "
By: Chad Ovcrhauser
Its: President
SWORN TO AND SUBSCRIBED befL1re me by Chad Overhauser on the 17th day of'
August,2015. ~ ~
c, Stute or Texas
42
52
CASE NO. 03-15-00416-CV
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS
OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,
MICHAEL E. TASK, AND TYCORD R. GOSNA Y
Appellants
v.
AMERIPRO FUNDING, INC.
Appellee
Appeal from the 345th Judicial District Court
of Travis County Texas
APPELLANTS' APPENDIX
EXHIBIT 6
1
2
3
4
5
6
7
8
9
10
11
12
13 APPLICANT'S EXHIBIT NO. 11
14
15
16
17
18
19
20
21
22
23
24
25
EXHIBIT
~
DIPLOY~T AGltlEMENT
Producing Branch Manager- Cor.Jmissi on Off-Set
This EMPLO'r,~.tE'l'mpaayj, and Mii;!tael H.
~asserfar, an individual resident oftlle State of Texas (t.'le ..Em-p)oyet").
REC)TALS:
A. The EmployH bas experience i:llhe business of res!dentia: mortpge lending (the ~Busi.ness").
B. The Company desi~s that the Employee serve as Prranch designated as B:ancb #152)80 and the Employee desires ~o Mlc! such position under the lerms and
wnditior.s ofl!;is Agn:r:n:nt
C. The parties des.lre lO enrer into this Agreement setting forth the tem'ls and c:onditiors of the
m:ployment relatlor.ship oftbe E..•np!oyee ·whh :be Corr.pany.
NOW, THEREFORE, the parties agree as foilows:
l. ~
(a) At-Will Eml210vmt:nt. E.'TtpJoyee understand$ and acknowledges that hislller employnlmt
wit.h the Company is for an unspecified dura::ioo and eonstitutu "a.t·wi II" employme.r.t. Subject to the te:rms of
this Agreement, Employee acltnow!odges that this em,:loymem relationship may be bmninated al 1."1)' :ime. witb
or without good eaUK or for any or l'Xl cause. a! the optior. either of !he Company or Employee, with or withcut
notice.
t
{C) ~ Empleyee shall serve as the Producing Bram;h Mantger fOC" the Company's
bran<:ll designated as Branch #I 52 i 80, with such duties and respor.slbilitie.s as the Company shall detcnnine.
Er'l?loyoc shall devote his full time and atention during normal business hours to the business anlieab!e fef illeg.aJ, improper, or
-c.1ethieal or O'Jltr Material information or matters ccncurri::-.g the Company end/or Braneb operations; (l\1)
infom'ling Company of all expenses on a timely ~.s in order to msu;c ~t payment thereof &."ld tc!hering to
~he Com?tJ!Y'$ accoumable expense ~i.mbutsement plan ~ (v) forwarding all fc:e5, c;;heclcs, deposlu, ett. in the
possession of Manager to Company's Corporate Headquarte'l'S in a limely ma.-mer; (vi) wuring thal all c!osed
loan dOCl.lments are s::cm! in Company's docl.II!ICl'l! storage system and teeeSSible!O Company upon demand; (vii}
hiring. developing. maintaining. trz:.ining and super-ising a sales force of loan origil'l2t0rs 2!ld support staff 1o
maxhniz:: Branch, pro:fir and ·miruJ'l'liz.c risk; {~iii) C!W.lring that all pttSOnS performing any ser.1ces for the
Cot:'lpany ti:rough the Branch are Company employees, properly lioenscd ar.d registered, as applicable, and are
ap!lfO'oted tc start bJ Com?a.ey an4, as applieable apprc11ed by the Company to origina:e lo~ (ix) enNring that
J.ll employee a<:tl'\1':} including bet not limited to hiring. firing. position ;:hange, pay changes, leaves of e.blence,
ete,, Takes p}l!ce in aecordance with policy. practice,. and appropriate COIJ)cratt level p!"'l·approval; {x) erw.uing
lhet 11H ..0'\lt:rtising and marketing is dOTI« only .,..,-t,h the pre-approval orcom?any and that an telematlate are approvee senl from and directed thrC>I!gh corporate email. P1ivate em!til is r:ot to be used .!Or any official Company
l>usiness; (xiii) ensuring that all borrowers are advised ofthe nost appropriate financing options, are not steered
:o -product~ based on maximi:z.ing compensation, and are only advised to elose ioans if there is a good fllith basis
:o l:elieve that the borrower will be able tc re-pay tie IOl!ll; (xiv) ensuring tha1 an employees are pe:formir:g
:iuties consist=:nt with their clessitication {i.e. ~'lcmpt"!'!Onexempt) and the.t the Company is advised ~f any
inconsistencies respecting duties and classificatio:;; and (xY) ensuring that all timekeeping policies are followtmpa."ly and :nay not: share sp;a;e!signat;e with a.'"ly
other business; (x,") ensu:ing all phon::: O.."ld f~ Hnes :nust be listed in the name of the Company and the lmnth
(A!IleriPro Funding,. Inc., Braneb #) er.d must be a.'lSWeted and displeyed aCIXIJ'dingly; and (.xxi) ensuring there is
always a staff oht least tw<.1 employees and be open during normal busi!l.ess h0'1.1J11. Alll>ranehes are subject to an
a.-:nu.al onsite ins~1ion, wiili or without notice, to ensure complia:"lce wl1l aU applicable regulations..
{e) ;qotwithstandir.g a:ty provision of !~is A~l!r.lent to the c::ontracy, witho:.;t the pri\.lr
wr~nen consent of Ccmpaey, Manager is not authorized on behalf of Company to (i) sell, lease, trade, exchtftge or
ott.erwise dispose of any capital asset of the Company; (H) grant a security interest in, hypotJ1ecate or otherwise
eneumb"..r any e.sset of Com!lany; (iii) incur any debt, sign any lease, or borrow money in the name of or on behalf
of the Company;{iv) confess a jUdlrJnen: again$ the Ccr.npany or settle or compr«nise in any manner ar.; !ega!
action, claim or litigation in the Tllll7.e of !he Company brough~ by or again.st the Company, nor may Employee
take auy actiou ir. furtherance of any .!tternpt to accomplish suth llt:ti~m without tile Company's prior )a;oy, ledge
and conse:1t; (v) implcmtn! ma1e:iel chan&es to the operation of the B:"U~ch~ (11i) open any bank, savings, eredit,
or investment account in !he name of Compar.y or an; DBA, parent. subsidiary or aJTtJiate thereof; (\'ii) deposit,
cash, endorse, :rar.sfer cr negotiate any t:heck, instrument, draft or other payment payab!e to or intended for
Company; (viii) acquiB or attemp! to acquire any signature righl.s to a;~y cfthe aforcmentioued ac.::ounts. nor may
Manager open any account in the nune of cr a name similar to the foregoing; (ix) accept any funds or wic.
transfers intended or for the benefit or on behalf of the Company; (x) c:.onduct any Realtor activities or hold an
active Realtor license during. the period of employme:tt or penn it or allow other loan office:rs of the Company to
engage in sccb activities; {xi) pay tJJ"f expenses for the branch out of any pe."'Scnal funds, or pay ar pi'O!Tlise
payment to any person for services. as;ociated with t.ie migir.ation or pfe<::ssing of leans, who !s not en approved
employee of the Company; (xii) issue or allow others ~o issue a comm:tment of financi.ng without proper prior
under.vf.ting approval; (x.iii) waive any commiTment fees or fees for appraisals, credit reports, title policies, flood
certitiea::ons or survey~ (.xh·) undel!alu: ar.y limmcing or origination of !t>a.~ in contravention of COC1Pa:JY
policies, inclurung but not limited to st:;aw financi:-Jg, f;ip financing, or the trar.sfer ofloans .from or to Company
wichout proper apprOYal; (xv) dcvilte from approved C.Oil1?CJ1Sation plans for any loan officers cr other
employees; (~vi) encourage or permit loan officers !O $"((:~ eustomtlt'S toward particular loans for the purpose of
maximizing revell'Je at 6e expl:l'.sc of custoC"'ers' in:erests ar:dJor facilitate or er.cour'!lge lending to consumers in
the absence o.f any good faltb belie.f that the borrower is ahle to repay t.~ loan; (xviu enecu,.·age or permit any
actions fuar.result in lending to cons;;mers ur.der false pretenses, or p~;t Company at risk fur early pay-of:, early
payment defauit, repurchase or r~pture; (xviii) llSe the Con?any 's r.ame ex.cept in fur>.herance of his/her duties
em teha!f of the Company; (xix) supply Company information or com:ne:1t to :be media without express approval.
Ma;:ager has no t>Wnctship or omer wage righls wlth respect to the: Company's name and upon term:natlon of t?lis
Agreement. Manager shall cnse using the Company's :'l~e or any sembll!.l':~ thereof.
(d} &runpanv Rl!les. Employee will remain f2roii!ar wlth aud a&.eu: tQ O.:i Com;tzny
policies, s:andards and rtqcirements published or otherv.-ise li!ssemir.a1td by the Com1:1e;::y as we.!! tts all
applicable federal, state. and !t~c:aJ laws and re:gu:atio:-.s, lnch.!dfng the T~ura Holdings, lnc. and Operat:ng
CONFIDENTIAL APF00000153
Subsidiar:es Employee Hanat'IOo!c and Company Lo;m Offlw Compensation a.1d Broke~d I..oan Politic\.
Employee is res;onsibl¢ for abiding by All knding laws and may not mislead, aher, falsify or f:a!.:duiently change
any doCJ.-mentation or commit fraud::~ any manr:cr with relation to any loan 5le at any stage offue loan p~ocess.
Employee may not steer customers 10 loMS in order to increase or maximize personal compcr.sation. Employee
may not enwurag,e ar:y customer to enter into a lean vnleS$ Employee bas a good iaith belief !hat the customer
ilas the ability \o repay the loan. Emrloyee may r.ot assist a w.stomer in clo$ing a Joan if Employee has s::~fficient
:eason to believe the customer has provided matcria:ly false information in C01ll'leetion wit~ the mortgage
applicaticn. Employee shall immediately report any conduct of which slhe becomes aware, in violation of the
above, to the President IJ! the Company.
(e) l.icensu,re. Employer requires t1at Employee holds am~ loan o:iginator license as
~qulred ~y lm SAFE AGlll:ld the applic.eble state in w)",ich bt:/she des.ir:s to do t:usintsS. Employee mlrj ~n:y
or;g.inate !oa:u in the swte: where heishe is licensed and Err.ployce andtor bis!her bnmc:b are physica!l}' located,
unless otherwise appreV"'..d by management in writing. Please contact the Company for a liS! of ap?toved sta.'leS.
Employee is ret~ulred to be licensed md agrees to complete an r.ecessa1)' steps witiJin the Nationwide Mortgage
Lieensing System & RegistryC'NMLS") to asSQcisre wi'h the: Company.
a) Mai!'rtenanc:e of Current Licensure -1; i;; Emp!O)-ee·s responsibility to renew and keep all requited
registration. licensing and training obligations eonti::uousJy cUrrent. 'It is Employee's respo!'.sibility {0
provide documentallon of license: renewal at the: time of renewal and as required and -requeS!ed by the
Company. Employee must be current with 1icensure to originate loans.
b) Failure to Mainmin Licensure - Should Employee fa!! to renew Jm.lher liW~Se or if Com-pi!lly is
unable !o verify that Smpioyee holds a C:\!trent license, t.'ler. Employee will not be allowed to originate
loans and may be plac:cd on unpai~ l1JSPI!'r'.Sion and!or be subject to immediate te:-mination.. Employee
will have a maxim11rr. rsf 30 days !o produce verification uf currem licensure. lf, After JO days,
Employee has not produced verification of current licensure and Company is enable to obtain NMLS
veriti:ation,. hel$he will be tt-'Tninated for fl!ilure to meet minimum requiremllnts e>f the po5ition.
Smployee is ::ol entitled to eomm!ssion on any loa.'1 originated a: any time wllen Employee was nat
p~operly licensed.
Employee v:::rifies that he/sht does nclhold a current .ar.d active Real Estate License.
2. Qmloensation.
{a) Compensatioo; Bene1lts. The Employee wll m:eivt cash compensation of $2,000.00
per month as hlsrner selary to be paid on a semi~monthly basis i.r. accordance with the Cor:rpz.r.:y's regular pay day
schedule, wh!cb will be a draw agailJSt cmr-'1l1ssiosls and other tompemation ee.mcd as set forth below. The
&-npioyee will also be eJlgible to re::eive commissior.slbonuses in aceordarr.:e with -exhibit A attached hereto;
provided, thAt, the Company may amend 1his Agreer.~ent from time to time 1o provide Employee with an adjusted
base arJ'!ual salary and adjusted period¥:: bonuses as it may d::e.m advisable in Us St>!e discretion. CommissiellS are
calculated by deducting the Base Pay paid dcring tl:e C'Jr.eJlt pay period,. from the aggregate commission. ltl the
event tMt Employee's Base Pay for the applicable period e:tceeds 1M commission, any negative balan« will be
can-led over and reduced :n :he calculation of furore commissior.s. Ir is understood t.'tat Employee is not er.tit!ed
to commission simply for proeunng a loim; N6 commission is eaJ·»ta. ea:rued. or payable to Empfoyee unless and
unril the loan has closed and funded 1lnder the Empl~e·s superl'isfop. As defined herein, a loan is not :losed
t.'llless and \.rotH tl-Jt loan has gone tn~ugh t:!esi:1g, ell monies have funded, any rescission period has expired, and
a!! proper COC'.lll'Jentatlon bas beer. fi!ed ir. c.on~Vection wi!h the lO!ln, and in ac:eordanc:e with &iY,Jiicable federa!,
Slate, ar:d ioc:al mor:gege lend!ng la\\S a11d regulatior.s. ln tie event that Employee fails to obtain reimbu~ement
for the CompMy on expenses on Jeans t'Urt do not elose. or the commissions are n:captwed pe• :he Company's
Scondary Marketing Policy Maaual, st.'Ch company {or bo;TOWer) e~sc:; reduce the E:nploye::'s gross
commission as stated in Exhibit A. Employee agrees !hat in the event he/sl:e believes there is any error In
January t, 201~
CONFIDENTIAL APF00000154
~;ono!!ctior. witl'l the 1::lculction ofhis:her comrni$$ion, he/she wi!l mise: •l'l}' mch di~agreernent in writing with me
Ccmpacy. within 30 days c;f paymern of t!t~ eommission. Failure :o do so acknowledges agreement wrt.l) the
amount of the commissions paid. Emplo)'ce agrees that '.lpon 1he execution of tiis Agreemem, there a.re no
disputes pertaining to compensation with Company and that Employee has received all pay n.'\d compensation due
:o him/her !!S or or
the date the fl:Ne:Clltion cf this Agr:.e:ncr.t. Employee agrees and acknowledges tmJl the
Company is umkr no obligatio:~ tc provide Employee with benefits, including. but not llmi!ed to, :!leallh
:muranc~ prQvidtd, thttt Employee will be errtit;ed to any benefits ~he Company rna'kes ava!l.able to its employees
in the ordinert cou11e of business. Employee shall be entitled tc receive vacation and sick time per the
Company's employee handbock. Such vacation time to be scl:eduled cy mct>..ml ~eernent of the Company and
employee.
(a} The c~mpany represent\; ar.d Wamlnts that tbis Agreement has been authoriwl C}' ell
:lCC'=SSlU')' corporate action of the Company and is a valid and binding ~ement of tlote Company enforceable in
accordance-with its te."ms.
(b) The Employee represents and warrants that he/she is I'!Qt a party to any agreement or
inst:'l.l.'nent that wcu1c prevent himll'.er from ente:ir.g into <::t performing, his/her duties in my w::y •.mdcr t..>tis
Agreement
4. Assignmsg1; Bindin& Aszeement. This Agreement is a personal contra::! and the ri~1'ts and
in1etests ofthe Employee hereunder may not b! sold, transfetT~, assi!lJ1ed, JJledged, encumbered, or !lypot~ec!
by hlmlber, except as otherwise expressly permitted by the provisioD$ of tf:ris Agreement. This Agreement s!!all
inm to :he benefit of and be enforceable by the Employee and his/her personal or !ega! representalives,·
execulms, adminlstra:ors, successors, heirs, d:stnoutes, devisees a..,d legatees. Tf the Employee should die while
arrj a.'Tiount would still be payable to himfner hereunder had the Employee cantim:ed to iive, all stK:h am:O\Ints,
unless otherwise provided hen:ln, shall be paid in accr:nefrt.
(b) The E:nplo)·ee &cknowledges that: {i) the Business is intensely eompetitlve and that the
E::'lp1cyee'J emjlloyment by the Company wiil require t"':a.t the Employee have ac¢:55 to a``d k."lowle-dge of
eonfider.rial information oftl;c: Company, inc!uding, but not lirn:ted to, the identity of the Company's employee:<,
customers, payers or suppliers, wit~ whO!ll :he Company has deal!, the kinds of services provided by tbe
Ccrnj::any, tile manner in wbi<:h s>.tch services arc pe:-for:ned or offered to be performed, pricir.g informa~ion and
other oontrac1!icl tems, in:"cr:t:ation c:oncemil'lg the w...ation, acquisition or disposition cf products and services,
creative ideas "aft:! conctp:s, including fir.a~1cia1 systems, cor.l?uter softwa.-e awlications and ot.ier p~zms,
research datll, ?CfSon~el mformatitm a'ld omet trade secrets (c<-Hectiv-:iy, !he "Confidential ln!ormatio~:~'}; {i!)
lhe direct or indirec: disclosun: of any sue~ Confidentiallr.fonnation would place the Company a~ a eompttitive
diSt~dvarr..age an~ would: do damage, mor.etary or otherwise, to the Comp~my's business; iL"!d (iii) the en&aglng by
the E.-nrloyce in any of the ac:tivities prohibited by this Section 2 may constitute improper appropriation and/or
1.\St of n:cb Confidential ltlfonr.atiop. The Em;>lo;ec expressly acknowledge$ the trade secret status of the
Confioer;tie1 lnformn:lon and that tie Cor.fi dential Information ecnstitt.ttes a protectllble business ir'teres1 aftl'te.
Compa.'ly.
CONFIDENTIAL APF00000155
(c) For p\lrpo~s nfthi~ Secp1,;-g 5 me Compl'lny shuli be construed to include tiJC Company
:L'ld ixs pare!lts and subsidiaries engaged in t!:c Busi:less, ite!uding any divisions managed by ;';le Employte.
(any, and at all times 11fter the
~ermina!ion of the Employee's e.rr.ploymeot, the Employee shell :101. directly or indirec:ly, whether il'l'dividual!y,
as a director, stcck.holder, O\\IJ'ler, par:ne:, employee, principal or agent of an~ business, or in any oiher ea~acity,
-n;.;K.t known, cli.sc:os:, fumish, make availebl!: or utilize any of the Confidential Information,. other than in the
proper perfom:ance of the duties eonterr.pla:cd herein, or u expre$sly ;>!!r;':'littei e:ny customer of Employee thm existed prior ~o employment
\.,.;~ lh~ Com;-any, provided the customer ane an is ;;~1 being se:-vi::eWledges that all leads and !oarxs ir; process ~ Ce>mpany'z prt~perty.
Err.pioyee a~rees to provide Ul)On termination a '~.'~'litter. accot:n1 of any and all open leads, business prospects,
an ir. good star,ding an:lls available 10
help with and per.!cipate in ·the closing -process whea requested, heishe will be· eligtb!e ror compensl'tfon on
pending loans that <:lese within 30 days of terminatior:.
(g) The Employee wi;: rr:a':$clt, to any eme:n, from u.s~ of the Company's premises or property (all of which are col!ecti~ly refer:td to iu
this Agreemer:t as "Work.") All Works shrul be eortsidered "WORK MADE FOR HTP..E" l!nC shiT !lethe sole
pro;:>ertY oft he Com~any, am!. to the extent :."tat the Company is not already considered the owner l!li a matter of
law of aD)' Wotks created, mace, conceived or reduced to prae:ice by the Employee prior to the Effcetlve Date, to
:he ext~t not pre'lliously assigned to Lie Company, the Employee h~"t!>y migns to the Company, without further
compensation, all his/her righ:, title: and in:erest in and to suer: Works and any a"ld all related intellectual pror;my
rights {i:!Ctuding, b:it not limited :o, pater:!$, patent tli)plieations, copyrights. copyright applict.tions, and
lrademarks) in the United Slates and elsewr.ere.
(h) The Employee agrees, upon :he h::ml.inatic-n of his employment, that .slt:e will
rmmediately r1:frain from a:;d di:s.cor.tint.-:h lnformetion on any social :11cdia sfle constitutes a false,
;r.ate:ial statemer.: cffsct that !s detrimental tc the Company's legitimate busi!'leSS i"'terests.
(i) 1"l'ta Employee acil:nowledges that the sen·icts to t:e rendered by himn:er to •.he Compa.1y
an: of a syecial and uniq'Je chan::.cter, which gives this Agrer.m~nt a pe.culiar value to the Company, the loss of
wllith may not ~ reasonably or adequa:e!y compensated for by ::lamages in an ac+.ion at law, and that a breach or
threatened by himrber of any of the provisions con:ained in this ~on .S will cause the Compa.'ly
irn:parabie injc:y. The Err.ployee 1heteftm:: agrees :hct tl'le Company sl-.nl! bfl entitled, in addition 1c any other ri&ht
or remedy, to ~t!:m)lOTilr)', preliminary and permanent injunction, wit!: out tbe neecssity of proving the irntdequecy
of mor.e!!I"J on Employc:e end
tile Company as :hc'Jgh the un~mfcre:able por:ion or provision had neve: been lnclu.li:~r lnw-n~ !"'l$lil'IP.;
CONFIDENTIAl.. APF00000157
7. lngemnifil:!!ion. Swjec:; to and as pe:miued by the ~egulalions promulgated ~Y aneta: PU11ir upon receipt or refusal !f mailed by cer!ified mail, return receipt reqt:ested, to the pe.'tics at the fol:owing
addl't$SC$ (or 10 such other address as a party may have spe:cified by notice given 10 the other party pursuant to
this prpv~sion):
1fto Com;acy:
Ameriprc Funeing. Jl'\c.
Ann: Lora Gray
SlOG N. Mo'Pac Expressway. Sui!e i 2\l
Aust:n. Texas 78759
lito tile Employee:
Michael H. Nasserfar
41 09 HookbiJ!ed Kite
Austin, TX i873&-657l
9. £mire Agreement. This Agreement col'li2Jns all the understandings between the pa.rties hereto
pertaining to the matters referred 'to ~ercin, and supersedes any other ;mdertakings and agreements, whether c-:al
cr ln writing,, previously el'!"..ered imo by ndit\onal!y cor:sents to sub:r.il to Lie excl~ivejurisdiction of:he courts of the State of'Texas
CONFIDENTIAL APF00000168
.a.nd of the Un:tcd Slates, in each c~ iocated in Travis County, Texas, for any litig2:ion :ansir:g ou: of or re!atir.g
!c this Agreement and the tra:Jsactins under t.IJis
Agreemerll, may net be assig.'led by ~ny patty without the prior w:i!t!ln ::cns<:nt of:he other pany, except tlls: the
C:>mpar1y may assigJ~ this Agreement to any of its st:b5idiar!es or affiliates or to a.1y su:cesS()r by merger or sale
of zll or s:.tbstanti:dly all of tl~ Company's !!$StU, wiilio\lt th" Employee's consent provided that the assigs-.me:~t
doc.~ not diml:::ish ilil)' cf the Employee's benefits, !"ig.1ts or obligation$ 1-..ere>JJlder.
! 4. Withholding. AJl pzyments ~o :he Employee under this Ag;-cer.tern sr.all be reduced by all
appllcab!e withholding requ!ree by fede:-al, stille or local law.
l $. . fwirr.lle E?;eeutioo and QelivS£'1. A facsimile, electronic mai!IPOF c>r o1her reproduction ::f this
Agreement may be exec!lted by one cr more parties hereto. art! an executed copy of this Agreement may be
clellvered by one or more parties hereto by f&e>i:ni!e, electronic maU?Df' or similar :!ee:ror.ic rremmissior.
de'>' icc pcrsu!lllt to .,..,hi~b the signature of or on beha!f of sccb ptr.y can be seen, and such execution and delivery
shall be considered vali and obligations h~rrJnd'lll',
18. ln!eruretation. The vrords "hereof,.. "iiereto," "herein" and "hereunder" a."ld wnrds of similar
i'rport -,.ben used in tltis Ag:rcemer,t shall refer to th1s Ag;·eemer.t as a whole andnot to any ~art!c:~lar pro¥ision
of this Agrl!t~ent, ancl Set1ion and Article w.f~rcr.ces a~ to this Agreement unless otherwise specified. Whenever
the words "im:lude," "Included" or "ir.ehding" are used !n t.iis Ag:reemertt, t"':ey shall be t.!eemehall b: construed as though of the gender and numbe;
;equircd by the context, and the smgt:Jlar shall inelu:ie the ph!ra! and the plural the singular as may be required by
L'le conte:tt. The ;:attics hereteab!e Revenues for the entire Lekew11y Branch (l52l80)(BPS x
volume from commission schedule: beiow) (BPS x volume from commission schedule below) leJs
Commissi-on OF.sel Ballll'lce less Uncollec:ed Fees less Approved Business Exp.mse (in
accordance wilh the Compar.y's accounu61c expense reimburseme:'lr plan) ~:Ja!s Gross Eamee
CemmissiorJ.
Tht above mentioned ca1:1mission sch!:dule:
-does not apply to any low that cemains bo!'l'Ower paid compensation
-applies only to first lie::: closed end for,.·ar<.l transaerioi\S unless otherwise appravec! by the
Company in w:iting
Cqmmiss.ion Pgy Schedule:
Semi-monthly: Commissions ere paid on a semi-monthly basis. All loans with a Payroll Eligible
Date from the i"tbroug,h~e 15ugh Company approved channels (provided he/she
resides in a Nor.-Prooueing or Relai: c!esignated branch).
_x_Yes __ N.,
~ .. AI~,
Mich.:el H. Nasscrf2r
January 1, 20l4
CONFIDENTIAL APF00000162