Court of Appeals of Texas, Fifth District, Dallas
KENNETH W. MORRISON, RICK ADAMS, AND STONECOAT OF TEXAS, LLC, Appellants
JOHN D. PROFANCHIK, SR., Appellee
Appeal from the 416th Judicial District Court Collin County,
Texas Trial Court Cause No. 416-02057-2015
Justices Whitehill  , Partida-Kipness, and Pedersen, III
jury trial, appellants Kenneth W. Morrison, Rick Adams, and
Stonecoat of Texas, LLC 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.
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. 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. 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
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.
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.
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.
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.
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.
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).
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. The argument portion of appellants'