Atlantic Richfield Co. v. Misty Products, Inc.

820 S.W.2d 414, 1991 Tex. App. LEXIS 3096, 1991 WL 269043

• Court: Court of Appeals of Texas
• Decided: December 19, 1991
• Docket: C14-90-00741-CV
• Status: Published

Opinions

MAJORITY OPINION

ROBERTSON, Justice.

This is an appeal from a judgment in favor of Misty Products, Inc., d/b/a MPI Products (“MPI”), and Misty Rucker based on jury findings of false representations, conspiracy, and misappropriation of trade secrets. The jury awarded appellees $1,030,000.00 in actual damages and a total of $890,000.00 in punitive damages. Appellants bring eighteen points of error, primarily complaining of insufficient evidence to support the jury’s findings of liability and damages. We reverse.

On an annual contract basis, MPI supplied Atlantic Richfield Company (“ARCO”) with industrial cleaners and related equipment from 1980-84. In the summer of 1984, Misty Rucker, owner of MPI, had discussions with Frank Sullivan, a regional manager for ARCO, Chemlink Division, regarding the possible sale of MPI to Chem-link. Sullivan had previously heard from a Chemlink Sales Manager in Beaumont that ARCO should consider entering the industrial soap market. Sullivan contacted Richard Quinn, Marketing and Planning Manager of Chemlink in Philadelphia, regarding Chemlink’s interest in acquiring MPI. Quinn testified that he requested and received general product information from MPI. Rucker testified, however, that Quinn requested and received confidential financial data. Chemlink subsequently advised Rucker that they were not interested in acquiring MPI.

The ARCO Purchasing Manager, Steve Murphy, became concerned about the increasing cost of industrial cleaners in 1984. Although there were no complaints about the MPI product’s quality, an investigation revealed that increased quantities of the product were being used. Murphy spoke to James Waterfallen, Chemlink Area Manager who in turn spoke to the Chemlink product development division about the possibility of developing an industrial cleaner.

In Fall 1984, Chemlink decided to bid on the ARCO industrial cleaner contract. Chemlink’s chemists bought an industrial cleaner concentrate (Stepan) and diluted it with water. This cleaner, named IPC 5180, was the product Chemlink submitted in its bid in December 1984. Because the Stepan product contained a hazardous chemical, Chemlink ultimately supplied ARCO with another product containing the concentrate Witco 45DS.

ARCO conducted a test of all products involved in the bidding. The tests revealed that the MPI, Chemlink, and Oakite products performed satisfactorily. The Oakite product performed best, but was more expensive than the others. Although the Chemlink product cost more per gallon than the MPI product, Chemlink included an activity percentage that showed its product to be more cost effective than MPI’s product. ARCO ultimately chose to award the contract to Chemlink. Chem-link’s product did not have a material safety data sheet (MSDS), which ARCO required in the bids, but an MSDS was supplied before the product was delivered to the plant.

The ARCO contract was 50-60% of MPI’s total business and the loss of this contract resulted in a loss of approximately $300,-000.00 in annual gross sales. Rucker and her employees took pay cuts and attempted to recover the ARCO business in 1986. In the ARCO tests for the 1986 contract bids, Chemlink’s product received the poorest performance rating. The Maintech product had the best performance and price and was awarded the 1986 ARCO contract. The loss of the ARCO business ultimately caused Rucker to file bankruptcy.

MPI filed suit in 1988 against appellants alleging breach of contract, unfair competition, tortious interference with contract and with business relations, misappropriation of trade secrets, conspiracy, misrepresentation (fraud), conversion, quantum me-ruit, and negligent and intentional infliction of emotional distress. The case was tried to a jury. The judgment indicates that the trial court granted appellants’ motion for instructed verdict on all claims other than fraud, conspiracy, and misappropriation of trade secrets. On the claims submitted, the jury found: (1) misappropriation of MPI’s trade secrets by ARCO, Chemlink, and Steve Murphy, as an employee or agent of ARCO; (2) civil conspiracy to deprive MPI of business by Chemlink, ARCO, and Murphy as employee of ARCO, and by Richard Quinn as employee of Chemlink; and (3) misrepresentation by Chemlink, ARCO, and Murphy as employee of ARCO.

In points of error three through seven, appellants challenge the jury’s findings of false representations. In point of error six, appellants contend no evidence supports the jury’s finding that Murphy made a false representation. In points of error four, five, and seven, appellants claim insufficient evidence supports the jury’s findings that Chemlink, ARCO, and Murphy made false representations.

In reviewing a no evidence point, we may consider only the evidence and inferences tending to support the jury’s finding, disregarding all evidence and inferences to the contrary. Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990). If any evidence of probative force supports the finding, the point must be overruled. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989). If, on the other hand, the evidence is so weak as to create mere surmise or suspicion of the existence of a fact, the evidence is no more than a scintilla and is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).

Where a party alleges factually insufficient evidence to support a finding, the court must review all of the evidence. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). The reviewing court may set aside the finding only if the evidence is too weak to support the finding or if the finding is so against the overwhelming weight of the evidence as to be manifestly unjust. See Wilson v. Goodyear Tire & Rubber Co., 753 S.W.2d 442, 448 (Tex.App.—Texarkana 1988, writ denied).

In their petition, appellees pled misrepresentation and fraud, alleging that appellants misrepresented facts with the intent of inducing appellees to disclose confidential MPI product and equipment data and to submit a bid with sealed trade secrets when ARCO was engaged in preferential bidding practices. The elements of actionable fraud are: “(1) that a material representation was made; (2) that it was false; (3) that, when the speaker made it, he knew it was false or made it recklessly without any knowledge of its truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that he thereby suffered injury.” Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983) (quoting Wilson v. Jones, 45 S.W.2d 572, 574 (Tex.Comm.App.1932, holding approved)). Given an instruction closely resembling the above definition of fraud, the jury found that Chemlink, ARCO, and Murphy, acting in the course and scope of his employment for and as an agent of ARCO, committed fraud.

We find insufficient evidence to support a finding that ARCO or Chemlink made false representations to MPI with the intent to induce MPI to disclose confidential data or to submit a bid with sealed trade secrets. Appellees contend ARCO’s feigned interest in acquiring MPI came through the Chemlink chain of command and induced Misty Rucker to disclose considerable confidential MPI information. To constitute a false representation, the evidence would have to show that ARCO and Chemlink falsely represented ARCO’s interest in acquiring MPI.

The record indicates that Frank Sullivan, an area manager for Chemlink, discussed with Misty Rucker Chemlink’s possible interest in acquiring MPI. This discussion occurred in the summer of 1984. Sullivan contacted Quinn, Marketing and Planning Manager for Chemlink in Philadelphia, to determine whether Chemlink was interested in MPI as a possible acquisition. Quinn testified that he requested only general product information from Rucker. Although the letter from Rucker to Quinn indicates that it transmits “various product data and equipment information,” Rucker testified that she also sent Quinn confidential financial information. Quinn further testified that he gave the general product data to Bill Britton, another Chemlink manager in Philadelphia who was in charge of the industrial cleaner area. Quinn testified that he concluded from his own review of the material that Chemlink would not be interested in acquiring MPI and that Brit-ton reached the same conclusion. Chem-link subsequently advised Rucker that they were not interested in pursuing acquisition discussions.

This evidence shows that Quinn and Sullivan, acting as employees of Chemlink, made representations to Rucker that ARCO might be interested in acquiring MPI. Appellees contend that the jury could infer these representations were false because they induced MPI to divulge confidential information which she would not have done had she known that Chem-link was preparing to bid against her for the ARCO contract. To raise a reasonable inference that Chemlink feigned an interest in MPI to gain access to MPI’s confidential financial data, there must be some evidence of Chemlink’s access to this data, such as using it to gain a competitive advantage in the bid process. Rucker testified that Chemlink reviewed MPI’s books, financial statements, and assets. The record contains no evidence indicating that Chemlink used any confidential MPI data. In fact, the record shows that Chemlink submitted a bid using a different product than MPI, charging a higher price per gallon than MPI, and, unlike MPI, including a per gallon delivery charge.

To conclude that Chemlink made false representations, the jury must have inferred that Chemlink’s interest in acquiring MPI was false based on an inference that Chemlink accessed and used MPI’s financial data to gain a competitive advantage. The piling of inference upon inference is impermissible. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex.1968); Carr v. Hunt, 651 S.W.2d 875, 882 (Tex.App.—Dallas 1983, writ ref’d n.r.e.). The evidence must do more than raise suspicion. Carr, 651 S.W.2d at 882. Thus, we find insufficient evidence to support the jury’s finding that Chemlink made false representations about its interest in acquiring MPI.

Appellees suggest the jury could have inferred that, even if Quinn and Sullivan did not know their representations to Rucker were false, others in the Chemlink organization made the false representations to Rucker through Quinn and Sullivan to obtain the confidential information. If evidence tended to show that Chemlink employees made representations about Chem-link’s interest in acquiring MPI to Quinn and Sullivan with the intent that Quinn and Sullivan communicate this representation to Rucker, such evidence would support the jury’s finding against Chemlink. A person indirectly makes false representations by making the representation to another with the intent that it be repeated to the intended party for the purpose of deceiving him. Neuhaus v. Kain, 557 S.W.2d 125, 138 (Tex.Civ.App.—Corpus Christi 1977, writ ref’d n.r.e.). Our review of the evidence, however, reveals no evidence that other Chemlink employees made false representations to Quinn and Sullivan regarding the acquisition of MPI. Thus, only speculation would support an inference that Chemlink indirectly made false representations to Rucker.

We further find no evidence that Murphy made any false representations to MPI with the intent to induce MPI to disclose confidential data or to submit a bid with sealed trade secrets. Appellees claim that Murphy approved the Chemlink acquisition of MPI in June 1984 and discussed the possibility of Chemlink bidding on the ARCO contract in July 1984. If these alleged facts were supported by the record, then we might agree with appellees that the jury could infer Murphy was encouraging acquisition negotiations while soliciting Chemlink’s bid on the business that made MPI valuable. Our review of the record, however, indicates that appellees’ version of these facts is inaccurate.

In addition to the false representations alleged in the petition, appellees claim other false representations were raised and supported by the evidence. If the evidence raises an issue and the opposing party fails to raise the lack of pleading before submission to the jury, the issue is tried by implied consent as if it were raised by the pleadings. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991).

Appellees claim that the rules in the bid invitation were a continuing representation that MPI’s formula would remain sealed until a question about the product arose. Appellees claim ample evidence showed that no such question ever arose, and thus, the jury could conclude that Murphy opened the formula with malicious intent to share the formula with Chemlink. While we understand appellees’ theory, the evidence does not support it.

The evidence shows that Murphy became the Purchasing Manager for the ARCO refinery on July 1, 1984. Murphy testified to concerns about increases in usage of the MPI product. Murphy told James Water-fallen, Chemlink Area Manager, to investigate the industrial cleaning costs. Murphy testified that he had a conversation in September 1984 with Archer Allan Muse, Jr., the plant manager about the increase in usage of MPI soap. Murphy testified that Muse asked if there were a way to determine whether the MPI product had changed. Murphy told Muse that he could check the sealed formula in the files. Murphy sent the formula to other personnel at Chemlink to determine the make-up of the product, but no one was able to understand the formula. Murphy testified that he did not discuss the formula with any Chemlink employee and that he asked the personnel attempting to analyze the formula not to discuss the formula with anyone. Murphy further testified that Chemlink began to consider bidding on the ARCO contract in October-November 1984.

Murphy also discussed with Waterfallen the possibility of Chemlink bidding on the ARCO soap contract. Waterfallen asked the Chemlink chemists to develop an industrial cleaner. Murphy told Misty Rucker that Chemlink would bid on the ARCO contract. In early 1985, after Chemlink had been awarded the contract, Rucker called Murphy and asked for the MPI formulas submitted with the prior bids. When she received them, she found that one envelope had been opened, even though the envelope stated “CONFIDENTIAL FORMULATION NOT TO BE OPENED OR USED UNLESS PURCHASING MANGER [sic] APPROVES.” The ARCO bid invitation stated that all bidders were required to furnish exact formulations of the soap submitted. This document further stated:

This formulation will be sealed and will remain sealed until the contract is awarded. Formulations belonging to unsuccessful bidders will be returned to them, still sealed, at that time. Arco Purchasing will retain the sealed formulation of the successful bidder in case a question should ever arise concerning material being furnished.

Although the record shows that Murphy opened a sealed envelope containing MPI’s formula, no evidence shows that anyone deciphered the MPI formula or that Murphy shared the formula with anyone at Chemlink. Even if evidence did show that Chemlink had access to the MPI formula, no evidence shows that Chemlink used this formula. The record shows that Chemlink submitted in its bid a soap product consisting of a diluted product from Stepan and that Chemlink ultimately supplied ARCO with a diluted product from Witco. Thus, the evidence shows that Chemlink purchased commercially available soap concentrates and diluted them with water.

Finally, appellees suggest that, based on the testimony about the tests of the Chemlink soap submitted for the 1985 and 1986 bids, the jury could have found that ARCO or Murphy knew that Chemlink used MPI’s product for the 1985 test. Ap-pellees do not explain how this constitutes a false representation that induced MPI to bid on the contract or to do anything MPI would otherwise not have done. As we mentioned earlier, a speaker is liable for fraud if he makes a false representation with the intention that the other party act in reliance upon the representation and if the other party thereby suffers injury. Trenholm, 646 S.W.2d at 930.

Raymond Allen Stephenson, a corrosion engineer for ARCO, testified that he was involved in the testing of cleaners for the bids for the ARCO 1986 contract. Stephenson had representatives from the bidding companies bring a sample of their product and demonstrate its cleaning ability. According to documentation from the test for the 1986 contract bids, the Chemlink product performed poorly and left the surface oily. This documentation shows that the MPI product performed well, demonstrating “good heavy and light oil removal_”

Darrell Sutherland, a former corrosion engineer for ARCO, had performed the tests for the 1985 contract bids in January or February 1985. Sutherland testified that he recalled the performance of the Chemlink and MPI products as very close in effectiveness. These test results, therefore, conflict with the test results in 1986. Sutherland reported the results of his tests to Murphy, but he did not recall what he told Murphy. Misty Rucker testified to the following statements by Bill Stevenson, who cleaned coker units at the ARCO refinery:

Q. He told you that Chemlink was using your product to test to get the bid?

A. No. I asked him how Chemlink’s product worked when he tested it in 1984. He said, “Just fine. It is your product.”

We agree with appellees that, if the jury believed this testimony, the jury could have found that Chemlink used MPI’s product in the tests for the 1985 contract bid. This was not, however, the question submitted to the jury. The jury question asked whether ARCO or Chemlink made false representations to MPI “inducing [MPI] to rely on such false representation to the detriment of [MPI].” In answering this question, the jury was instructed they had to find the false representation was “made for the purpose of inducing [MPI] to do something which they otherwise would not have done....” No evidence shows that ARCO or Chemlink made any representations, with awareness of their falsity, that induced MPI to do something it otherwise would not have done.

Aside from finding no evidence that MPI relied on any representations, we find no evidence that Murphy was involved in the 1985 testing or was aware that MPI’s product may have been used. Having found no evidence supporting the jury’s finding of false representations by Murphy, and insufficient evidence supporting the findings of false representations by ARCO and Chemlink, we sustain points of error four, five, and six. We need not address point of error seven challenging the factual sufficiency of the evidence supporting the finding that Murphy made a false representation.

In point of error three, appellants claim there is a fatal conflict in the jury’s finding that Chemlink made a false representation but that neither Quinn nor Sullivan made a false representation. Asserting that a corporation can act only through its agents and that Quinn and Sullivan are the only Chemlink agents who made representations to MPI, appellants reason that Chemlink cannot be liable for fraud unless one or both of these agents were liable for fraud. Because we have found insufficient evidence to support the jury’s finding that Chemlink made false representations, we need not address this point.

In point of error eight, appellants claim the trial court erred in rendering judgment in favor of MPI and in denying appellants’ motion for judgment notwithstanding the verdict because as a matter of law ARCO and Chemlink cannot conspire with each other. The evidence showed that, during the time in question, Chemlink was a wholly owned subsidiary of ARCO. As a matter of law, a parent corporation cannot conspire with its fully owned subsidiary. Copperweld Corp. v. Independence Tube Co., 467 U.S. 752, 777, 104 S.Ct. 2731, 2744-45, 81 L.Ed.2d 628 (1984); Deauville Corp. v. Federated Dept. Stores, Inc., 756 F.2d 1183, 1192 (5th Cir.1985). A panel of this court, following precedent from the First Court of Appeals, extended this principle and held that an agent, acting within the scope of the agency relationship, cannot tortiously interfere with the business relations of the principal. American Medical Int’l, Inc. v. Giurintano, 821 S.W.2d 331 (Tex.App.—Houston [14th Dist.] 1991, n.w.h.) (opinion on reh’g) (citing Baker v. Welch, 735 S.W.2d 548, 550 (Tex.App.— Houston [1st Dist.] 1987, writ dism’d)). See also Wilhite v. H.E. Butt Co., 812 S.W.2d 1, 5 (Tex.App.—Corpus Christi 1991, no writ) (holding that, as a matter of law, a corporation cannot conspire with itself, no matter how many agents of the corporation participate in the alleged conspiracy). We hold that, as a matter of law, Chemlink and ARCO could not conspire with each other and we sustain point eight. Based on this holding, we need not address points of error nine and ten challenging the sufficiency of the evidence supporting the jury’s findings that Chemlink and ARCO conspired.

In points of error eleven and twelve, appellants contend that insufficient evidence supports the jury’s findings that Quinn and Murphy entered into a civil conspiracy. The jury found that Murphy, “acting in the course and scope of his employment, for or as an agent of [ARCO],” entered into a civil conspiracy. The jury also found that Quinn, “acting in the course and scope of his employment for or as an agent of Chemlink, Inc.,” entered into a civil conspiracy. Because we have held that a parent corporation and its wholly owned subsidiary cannot conspire, we further hold that an employee or agent of the parent corporation and an employee or agent of the wholly owned subsidiary, acting within the course and scope of their employment or agency relationship, cannot conspire. Thus, we need not address points eleven and twelve.

In point of error thirteen, appellants claim the trial court erred in overruling objections to the admissibility of Bill Stevenson’s statement because it was inadmissible hearsay. Misty Rucker testified that an ARCO employee, Bill Stevenson, told her that Chemlink used MPI’s product for the 1985 performance test. Appellants claim they timely objected to this statement as inadmissible hearsay. To preserve complaint on appeal regarding a trial court’s ruling on the admissibility of evidence, a party must make a timely objection and obtain a ruling before the testimony is offered and received. Zamora v. Romero, 581 S.W.2d 742, 747 (Tex.Civ.App.—Corpus Ghristi 1979, writ ref’d n.r.e.). The party waives any complaint if an objection is made after admission of the evidence, id., or if testimony to the same effect has been previously admitted without objection. Badger v. Symon, 661 S.W.2d 163, 164 (Tex.App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.).

Our review of this testimony reveals that appellants first objected to this alleged hearsay testimony on the ground that there was no predicate indicating whether Stevenson would have any knowledge about the Chemlink performance test. The trial court overruled this objection. After Rucker repeated this statement twice, appellants finally objected on the grounds of hearsay and no proper predicate. The trial court overruled these objections. Appellants did not object on the ground of hearsay until Rucker had made the statement three times. Appellants waived any complaint on appeal. We overrule point thirteen.

In points of error fourteen through sixteen, appellants challenge the sufficiency of the evidence to support the jury’s findings that Murphy, ARCO, or Chemlink misappropriated or disclosed any of MPFs trade secrets. Appellants argue that the evidence does not establish commercial use, a required element of the tort of misappropriation of trade secrets. Appellees counter that ARCO and Chemlink benefitted from the use and disclosure of MPI’s confidential financial, cost, sales, and customer data provided during acquisition discussions and from the use and disclosure of MPI’s soap formula.

Where a party alleges factually insufficient evidence to support a finding, the court must review all of the evidence. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). The reviewing court may set aside the finding only if the evidence is too weak to support the finding or if the finding is so against the overwhelming weight of the evidence as to be manifestly unjust. See Goodyear Tire & Rubber Co., 753 S.W.2d 442, 448 (Tex.App.—Texarkana 1988, writ denied).

In Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763 (1958), cert, denied, 358 U.S. 898, 79 S.Ct. 223, 3 L.Ed.2d 148 (1958) (opinion on reh’g), the court offered the following definition, which is essentially the definition offered to the jury in this case:

A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers.

Id. 314 S.W.2d at 776 (quoting Restatement of TORTS § 757 (1939)). Liability occurs if one discloses or uses another’s trade secrets, without privilege to do so, if “(a) he discovers the secret by improper means, or (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him.” Huffines, 314 S.W.2d at 769. Thus, actual use or disclosure of the trade secret is a required element of the tort. Use of the trade secret means commercial use by which the offending party seeks to profit from the use of the secret. See Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d 1195, 1205 (5th Cir.1986).

We may uphold the findings that Murphy, ARCO, and Chemlink misappropriated MPI’s trade secrets only if the evidence shows they disclosed or used MPI’s trade secrets to its competitive disadvantage. See University Computing Co. v. Lykes-Youngstown Corp., 504 F.2d 518, 542 (5th Cir.1974). Rucker testified that, during acquisition discussions, she sent Richard Quinn confidential financial data. Quinn testified that he requested and received only general product information and that he did not receive any detailed financial data from Rucker. Quinn further testified that he gave this information to Bill Britton for his opinion whether Chem-link should pursue acquisition negotiations. Britton and Quinn determined that Chem-link would not pursue acquisition of MPI. Even if the jury had believed Rucker’s testimony, no evidence established that Quinn or Britton, the two individuals with access to this data, had any knowledge of or were in any way involved in Chemlink’s decision to develop a soap product and market it to ARCO.

As to MPI’s formula, the evidence shows that Murphy opened a sealed envelope containing the formula and disclosed it to several Chemlink employees for analysis. Murphy testified that he advised these employees to maintain confidentiality. Uncon-troverted testimony established that Chem-link’s chemists were unable to decipher MPI’s formula. Furthermore, the evidence showed that Chemlink’s product consisted of a commercially available soap concentrate diluted with water. Upon review of all the evidence, we agree with appellants that insufficient evidence supports the jury’s findings that Murphy, ARCO, and Chemlink misappropriated or disclosed any trade secrets of MPI. Thus, we sustain points of error fourteen through sixteen.

In points of error one and two, appellants challenge the sufficiency of the evidence supporting the jury’s award of actual damages. In points of error seventeen and eighteen, appellants challenge the jury’s findings regarding exemplary damages. Having sustained appellants’ challenges to the jury findings of conspiracy and to the sufficiency of the evidence on the findings of false representation and misappropriation of trade secrets, we need not address the points of error regarding damages.

Because we have found that no evidence supports the jury’s finding that Murphy made false representations and that, as a matter of law, we cannot uphold the findings of civil conspiracy, we reverse the trial court’s judgment and render judgment in favor of ARCO Chemlink, Murphy and Quinn on these findings. Having found insufficient evidence supporting the jury’s findings of false representations by ARCO and Chemlink and insufficient evidence supporting the jury’s findings that Murphy, ARCO, and Chemlink misappropriated MPI’s trade secrets, we reverse the trial court’s judgment as to these findings and remand the cause for new trial on these issues.