Appeal from the 269th District Court Harris County, Texas
Trial Court Cause No. 2016-26355.
consists of Chief Justice Frost and Justices Jamison and
Thompson Frost Chief Justice.
appeal of a special-appearance denial, we address personal
jurisdiction in the context of allegations that a
non-resident former employee wrongfully acquired, used, or
transmitted alleged confidential information as part of a
scheme to solicit and steal a Texas company's Texas-based
customers. The Texas company alleges that the former employee
took the information while working in its Louisiana office,
went to work for a competitor in Louisiana, and then used the
ill-gotten information to compete with the company in Texas.
Though the alleged theft occurred in Louisiana, the Texas
company alleges the former employee solicited business from
Texas customers using the stolen information and later
performed work for those customers in Texas. We affirm the
trial court's denial of the employee's special
and Procedural Background
Scotty Moring was working in Louisiana for Waterdraws, LLC,
in 2012, when the company's owner Robert LeJeune sold the
company's assets to Inspectorate America Corporation.
LeJeune, Moring, and other employees then began working for
Inspectorate. As a condition of his continued employment,
Moring signed a document entitled, "Employee Invention
Assignment and Confidentiality Agreement" in which he
agreed not to disclose to anyone Inspectorate's
confidential information and not to remove, during employment
or upon termination of employment, any records that contain
confidential information. The agreement defines
"confidential information" broadly to encompass
strategic information. Strategic information includes
"business strategies, pricing, billing information,
actual or potential customer lists, contracts, contract terms
and conditions, sale lists, process descriptions, financial
data, marketing plans . . . trade secrets" as well as
Employment with Inspectorate
2012 and 2014, Inspectorate based Moring out of its Houston,
Texas office. Moring prepared bids and quotes that
Inspectorate used to get work from Texas customers. During
that time, Moring also performed waterdraw calibrations, pipe
prover inspections, pipe prover rebuilds, and small volume
rebuilds for customers located in Texas. These tasks required
Moring's physical presence in Texas. Moring then moved
back to Louisiana, where he continued working for
Inspectorate until 2015.
Employment with Intertek
2015, LeJeune, Moring, and at least three other employees
terminated their employment with Inspectorate and began
working for Inspectorate's competitor, Intertek USA, Inc.
Inspectorate alleges that before he left, Moring took
confidential information, including customer lists and base
working for Intertek, Moring completed waterdraw
calibrations, pipe prover calibrations, and pipe prover
rebuilds for Texas customers. Moring also generated quotes
and bids for customers. Many of the Texas customers for whom
Moring was performing work and generating bids were the same
customers for whom Moring had completed work on
filed suit against Intertek, LeJeune, Moring, and the other
employees who left Inspectorate to go work for Intertek,
asserting a variety of claims. Against Moring, Inspectorate
asserted breach of contract, misappropriation of trade
secrets and confidential information, breach of fiduciary
duty, tortious interference with existing contracts and
prospective business relationships, civil conspiracy, unjust
enrichment, and unfair competition.
Moring, and the other employees (Rory Quebedeaux, Kenneth
Soileau, and Curt Bowers) filed a special appearance that
they later amended. In the First Amended Special Appearance,
the movants asserted that they were not subject to suit in
Texas. Moring filed an affidavit in which he averred that he
is a Louisiana resident, employed in Louisiana. Moring stated
that he worked at an Inspectorate office in Texas between
2012 and 2014, but that he returned to Louisiana and was
working in Louisiana at the time of the alleged conduct that
is the subject of Inspectorate's claims. Inspectorate
nonsuited its claims against two of the employees (Quebedeaux
response to the First Amended Special Appearance,
Inspectorate asserted that all of the individual defendants
purposefully availed themselves of the privilege of
conducting business in Texas by directing marketing efforts
into Texas in the hope of soliciting sales and performing the
same services for Texas customers on behalf of Intertek as
they had done for those customers on behalf of Inspectorate.
trial court granted the special appearances as to Moring and
Bowers and denied LeJeune's special appearance.
Inspectorate moved for reconsideration, arguing that
Moring's attempt to exploit business opportunities in
Texas constituted purposeful availment. Specifically,
Inspectorate alleged that Moring misappropriated confidential
information and used it as part of a scheme to solicit and
steal the Texas company's Texas-based customers.
Inspectorate argued that liability rests on whether Moring
wrongfully acquired, used, or transmitted the alleged trade
secrets. The trial court granted rehearing as to Moring and
denied rehearing as to Bowers. Moring now appeals the trial
court's denial of his special appearance.
raises two appellate issues: (1) Inspectorate waived its
objection to the trial court's order granting
Moring's special appearance, and (2) Moring is not
subject to personal jurisdiction in Texas.
Did Inspectorate waive its right to seek reconsideration of
the order granting Moring's special appearance?
asserts that Inspectorate waived its objection to the trial
court's ruling on his special appearance by failing to
take an interlocutory appeal from the order granting the
special appearance. The Supreme Court of Texas has not
addressed this issue, and intermediate appellate courts in
Texas are split as to whether a party waives its right to
appellate review of an order granting or denying a special
appearance if it fails to file an interlocutory appeal of
that order. Some courts find waiver when a party fails to
take an immediate appeal. See, e.g., GJP, Inc.
v. Ghosh, 251 S.W.3d 854, 866-67 (Tex. App.-Austin 2008,
no pet.); Matis v. Golden, 228 S.W.3d 301, 305 (Tex.
App.-Waco 2007, no pet.) (holding a party waives its right to
appellate review by failing to immediately appeal a special
appearance order). But, we do not. Under our precedent, a
party does not waive its right to appellate review of an
order granting or denying a special appearance by failing to
take an interlocutory appeal of that order. See DeWolf v.
Kohler, 452 S.W.3d 373, 383 (Tex. App.-Houston [14th
Dist.] 2014, no pet.).
Inspectorate had waived appellate review of the trial
court's initial order granting Moring's special
appearance, that waiver would not prohibit the trial court
from reconsidering its initial order. And, that is precisely
what happened. A trial court holds plenary power over its
judgment until the judgment becomes final. Fruehauf Corp.
v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam).
A party's failure to file an interlocutory appeal from an
interlocutory order does not make that order final. See
Lehman v. Har-Con Corp., 39 S.W.3d 191, 206 (Tex. 2001).
The trial court holds continuing authority to reconsider its
interlocutory orders while it has plenary power over the
case. See Fruehauf, 848 S.W.2d at 84.
has not cited any authority suggesting Inspectorate waived
its ability to ask the trial court to reconsider the denial
of Moring's special appearance while the trial court had
plenary power over the case. The order granting Moring's
special appearance was interlocutory because it did not
resolve all claims between and among all parties, so the
trial court still held plenary power over the case when it
reconsidered its order granting the special appearance.
See Lehman, 39 S.W.3d at 206; Fruehauf, 848
S.W.3d at 84. The trial court had plenary power to issue the
order denying Moring's ...