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Morrison v. Profanchik

Court of Appeals of Texas, Fifth District, Dallas

August 13, 2019


          On Appeal from the 416th Judicial District Court Collin County, Texas Trial Court Cause No. 416-02057-2015

          Before Justices Whitehill [1] , Partida-Kipness, and Pedersen, III



         After a jury trial, appellants Kenneth W. Morrison, Rick Adams, and Stonecoat of Texas, LLC[2] appeal from a final judgment incorporating an adverse, take-nothing summary judgment on their counterclaims against John D. Profanchik, Sr. for (1) breach of his nondisclosure/noncompete agreement with Stonecoat, (2) his interference with Stonecoat's nondisclosure/noncompete contracts of others, and (3) misappropriation of trade secrets. In three issues, appellants generally complain the nondisclosure/noncompete contracts were enforceable, there was evidence that Profanchik was competing with appellants and interfered with their nondisclosure/noncompete contracts with others, and the trial court erred by granting summary judgment on their misappropriation of trade secrets claim. For the reasons that follow, we conclude the trial court did not err in granting summary judgment against appellants. Accordingly, we affirm. We issue this memorandum opinion because the issues are well-settled in law. See Tex. R. App. P. 47.4.


         This is at least the fourth lawsuit that has arisen from disputes involving two limestone veneer companies, Stonecoat of Texas, LLC and ProCal Stone Design LLC, and their owners.[3] In the case before us, Profanchik sued appellants for various tort causes of action arising out the parties' negotiations and conduct after Profanchik and his son-in law allegedly sought to purchase a Stonecoat franchise. Profanchik alleged that during a meeting in February 2015, Morrison represented to him, among other things, that Morrison owned Stonecoat and that Profanchik should purchase a controlling interest in it. Profanchik signed a nondisclosure/noncompete agreement with the understanding that Morrison would be divulging confidential and trade secret information in response to Profanchik's due diligence.[4] According to Profanchik's petition, shortly after signing the nondisclosure/noncompete agreement, Profanchik allegedly discovered documents that suggested many of Morrison's representations were untrue and revealed the companies' legal troubles and other improprieties. Profanchik ultimately walked away from a Stonecoat deal and instead started ProCal Stone Design, also a limestone veneer company.

         In response to Profanchik's lawsuit, appellants filed a counterclaim against Profanchik alleging he breached the nondisclosure/noncompete agreement he signed and also interfered with Stonecoat nondisclosure/noncompete agreements signed by others. Appellants asserted various claims against Profanchik including breach of contract, breach of fiduciary duty, misappropriation of trade secrets, theft, and tortious interference with existing contracts.

         Profanchik moved for summary judgment on all of appellants' counterclaims asserting both traditional and no-evidence grounds. Appellants then moved for summary judgment on Profanchik's claims against them. After a hearing, the trial court granted Profanchik's motion on appellants' counterclaims and denied appellants' motion on Profanchik's claims. Profanchik's claims were then tried to a jury, which returned a take-nothing verdict. The trial court rendered a final judgment on the jury's verdict, incorporating its earlier take-nothing summary judgment on appellants' counterclaims. In the final judgment, the trial court also rendered a declaratory judgment that the nondisclosure/noncompete agreement between appellants and Profanchik is unenforceable as a matter of law. Appellants timely filed this appeal.


         Before analyzing the merits of this appeal, we first consider issues related to appellants' briefing and preservation of appellate complaints. The only citations to the almost 3, 000-page clerk's record appear in the section entitled "Statement of the Case" and "Statement of Facts." Within the "Statement of Facts" section, excluding citations to certain provisions in the various nondisclosure/noncompete agreements at issue, appellants cite exclusively to various paragraphs in the thirty-four-page affidavit of Ken Morrison. Elsewhere, appellants merely cite to "the summary judgment record" or "the summary judgment evidence record" without further guidance or clarification.

         Although appellants identify three issues, they have not presented a separate argument for each issue or cause of action and instead argue their first two issues together under the heading "I. The District Court Erred in Granting Summary Judgment for Plaintiff with respect to the NDA/Non-Compete Contracts." Appellants' complaints about the ruling on its misappropriation of trade secrets is addressed in the argument section under heading "II. The District Court Erred in Granting Summary Judgment for Plaintiff Regarding Stonecoat's Trade Secrets Misappropriation Counterclaim." Although the argument section of appellants' brief is supported by legal authority, it provides no citations to the record or discussion of the facts as they relate to the issue presented.

         The appellate rules require a brief to contain a clear and concise argument for the contentions made with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(i). Appellants have the burden to present and discuss their assertions of error in compliance with the appellate briefing rules. We have no duty, or even right, to perform an independent review of the record and applicable law to determine whether there was error. See Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.-Dallas 2010, no pet.). Mindful of our obligations to construe the briefing rules liberally, we have structured our discussion of appellants' complaints about the trial court's summary judgment ruling in terms of the various causes of action to which they relate. On appeal, appellants challenge only the trial court's summary judgment ruling with respect to their claims for breach of contract, tortious interference, and misappropriation of trade secrets claims against Profanchik. Accordingly, our discussion will be limited to those causes of action.[5]

         We review the trial court's summary judgment ruling de novo. See B.C. v. Steak N Shake Operations, Inc., 512 S.W.3d 276, 279 (Tex. 2017). The movant for traditional summary judgment has the burden to establish there is no genuine issue of material fact and that it is entitled to summary judgment as a matter of law. See Tex. R. Civ. P. 166a(c). No-evidence motions are reviewed under the same legal sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Thus, the non-movant must produce more than a scintilla of evidence to support each challenged element of its claims. See id. When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Where, as here, a party moves for summary judgment on multiple grounds and the trial court's order does not does not specify the ground or grounds upon which it was based, the appealing party must negate all possible grounds upon which the order could have been based. See Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.- Dallas 2009, pet. denied).

         In their first and second issues, appellants generally complain about the trial court's summary judgment ruling with respect to their contract claim based on Profanchik's breach of his nondisclosure/noncompete agreement with Stonecoat and their tortious interference claims based on Profanchik's alleged interference with the nondisclosure/noncompete agreements Stonecoat executed with Justin Kinser, Irma Villareal, and Alfred Gonzalez.[6] The argument portion of appellants' brief ...

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