ACCEPTED 03-16-00611-CV 12717534 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/15/2016 11:12:01 AM JEFFREY D. KYLE CLERK 03-16-00611-CV
BRUCE CRAIG, TYLER CRAIG, § IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AND TEJAS VENDING, LP, § AUSTIN, TEXAS Appellants § 9/15/2016 11:12:01 AM § FOR THE THIRD JUDICIAL JEFFREY D. KYLE v. § Clerk § TEJAS PROMOTIONS, LLC, § DISTRICT OF TEXAS Appellee §
APPELLANTS’ SUPPLEMENT TO APPELLANTS’ EMERGENCY MOTION TO STAY TRIAL COURT PROCEEDINGS
COME NOW Appellants Bruce Craig, Tyler Craig, and Tejas Vending, LP,
and file this Supplement to their Emergency Motion to Stay Trial Court
Proceedings that are to be held on Friday, September 16, 2016, during the
pendency of this interlocutory appeal, and would request that the Court enforce the
statutory stay in Civil Practice and Remedies Code Section 51.014(b) for
interlocutory appeals allowed under Civil Practice and Remedies Code Section
51.014(a)(12).
I. Appellants Objected To Hearing; Trial Court Plans To Go Forward
1. Appellants filed their Objection to Court’s Consideration of Plaintiff’s
Motion for Leave to Supplement Record on September 15, 2016. See Exhibit A.
Appellants’ counsel notified the court’s staff attorney of the filing of the Objection.
Appellants’ Emergency Motion to Stay Proceedings 1 2. The court’s staff attorney then notified counsel that the court “is going
forward with the hearing tomorrow at 11:00 absent a ruling from the Third Court
of Appeals saying that she should not do so.” See Exhibit B.
IV. Prayer
WHEREFORE, PREMISES CONSIDERED, this Court should advance
consideration of the emergency motion, order a stay of the trial court hearing
currently scheduled for Friday, September 16, 2016, and enter any further
appropriate orders to enforce the statutory stay in Civil Practice and Remedies
Code Section 51.014(b) for interlocutory appeals allowed under Civil Practice and
Remedies Code Section 51.014(a)(12).
Appellants’ Emergency Motion to Stay Proceedings 2 Respectfully submitted,
The Weichert Law Firm 3821 Juniper Trace, Suite 106 Austin, Texas 78738 (512) 263-2666 (512) 263-2698 - Facsimile
By:__________/s/ Darryl W. Pruett Darryl W. Pruett Texas State Bar No. 00784795 darryl@weichertlaw.com George V. Basham, III Texas State Bar No. 01868000 george@weichertlaw.com Glenn K. Weichert State Bar No. 21076500 glenn@weichertlaw.com
ATTORNEYS FOR APPELLANTS
Appellants’ Emergency Motion to Stay Proceedings 3 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this motion has been sent in accordance with the Texas Rules of Civil Procedure, as noted below, on this 13th day of September, 2016, to:
Matthew R. Beatty Beatty Bangle Strama PC 400 West 15th Street, Suite 1450 Austin, Texas 78701 Telephone: (512) 879-5050 Telecopier: (512) 879-5040
Hand Delivery in Person or by Agent x Electronic Service Email Service Courier Receipted Delivery Telephonic Document Transfer Certified Mail, Return Receipt Requested No.______________
/s/ Darryl W. Pruett Darryl W. Pruett
Appellants’ Emergency Motion to Stay Proceedings 4 9/15/2016 9:50:26 AM Velva L. Price District Clerk Cause No. D-1-GN-16-001959 Travis County D-1-GN-16-001959 TEJAS PROMOTIONS, LLC, § IN THE 261st JUDICIAL Jonathan Sanders Plaintiff, § § v. § DISTRICT COURT OF § BRUCE CRAIG, TYLER CRAIG, AND § TEJAS VENDING, LP § Defendants. § TRAVIS COUNTY, TEXAS
OBJECTION TO COURT’S CONSIDERATION OF PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT RECORD AND MODIFY ORDER OF DISMISSAL
COME NOW Bruce Craig (“B Craig”), Tyler Craig (“T Craig”), and Tejas Vending, LP
(“Tejas Vending”), Defendants in the above-referenced cause, and files this their Objection to Court’s
Consideration of Plaintiff’s Motion for Leave to Supplement Record (the “Motion to Supplement and
Modify”), and would show the following:
I.
1. Plaintiff sued Defendants on May 6, 2016. The causes of action were breach of
contract, misappropriation of trade secrets, and conspiracy to misappropriate trade secrets. Plaintiff
also requested certain declaratory and injunctive relief. The conspiracy to misappropriate trade secrets
centered on Bruce Craig’s alleged violation of a nondisclosure agreement (the “NDA”) by providing a
list of Plaintiff’s purported customers (which it claimed was a “trade secret”) to the other Defendants.
Plaintiff alleged that Bruce Craig, “[i]n direct violation of the NDA, . . .disclosed the information
regarding Tejas Promotions assets and business structure to his son, and defendant in this action, Tyler
Craig.” Plaintiff alleged that Bruce Craig “further disclosed that information to an entity he created
with a deceptively similar name, Tejas Vending LP.”
2. Plaintiff further alleged that Defendants, based on the disclosure, then “pursued a course
of action designed to use Tejas Promotions’ Confidential Information to steal Tejas Promotions
business.”
Defendants’ Objection To Consideration of Motion Page 1 3. Plaintiff alleged that the “Confidential Information” at issue pursuant to the NDA was a
trade secret.
4. Plaintiff also sued for conspiracy, alleging that “Defendants to this action conspired to
misappropriate Plaintiff’s trade secrets. . .”
5. The action that is the basis of the conspiracy claim is Bruce Craig’s purported
disclosure (or “communication”) of Plaintiff’s alleged trade secrets to Tyler Craig and Tejas Vending,
LP.
6. Plaintiff’s claim of conspiracy was a textbook example of something that is based on,
related to, or is in response to the Defendants’ exercise of the right of association. The “exercise of the
right of association” means “a communication between individuals who join together to collectively
express, promote, pursue, or defend common interests.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(2).
That is exactly what Plaintiff contended Defendants were doing. A “communication” includes “the
making or submitting of a statement or document in any form or medium, including oral, visual,
written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(1). This would, of
course, include the customer list that Plaintiff alleged was communicated by Bruce Craig to Tyler
Craig and Tejas Vending, LP.
7. Plaintiff sued all of the Defendants for conspiracy based on, relating to, or in response
to, Bruce Craig’s communication of the alleged trade secrets to Tyler Craig and Tejas Vending, LP.
8. The conspiracy to misappropriate trade secrets claim was frivolous. Claims of conspiracy to
misappropriate trade secrets are pre-empted by the Texas Uniform Trade Secrets Act.
9. On June 29, 2016, Defendants filed a Motion to Dismiss pursuant to Chapter 27, Civil Practice
& Remedies Code.
10. In response, and presumably recognizing the frivolous nature of the conspiracy claim,
Plaintiff abandoned the frivolous, pre-empted conspiracy claim and some of the declaratory relief
Defendants’ Objection To Consideration of Motion Page 2 claims and substituted other declaratory relief claims. A hearing on the Motion to Dismiss was held on
August 4, 2016. No evidence was presented either by affidavit or live testimony regarding Plaintiff’s
attorney’s fees.
11. The Honorable Rhonda Hurley transmitted her letter ruling dated August 24, 2016,
stating her ruling denying the Motion to Dismiss and Defendants’ Plea to the Jurisdiction. She did not
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ACCEPTED 03-16-00611-CV 12717534 THIRD COURT OF APPEALS AUSTIN, TEXAS 9/15/2016 11:12:01 AM JEFFREY D. KYLE CLERK 03-16-00611-CV
BRUCE CRAIG, TYLER CRAIG, § IN THE COURT OF APPEALS FILED IN 3rd COURT OF APPEALS AND TEJAS VENDING, LP, § AUSTIN, TEXAS Appellants § 9/15/2016 11:12:01 AM § FOR THE THIRD JUDICIAL JEFFREY D. KYLE v. § Clerk § TEJAS PROMOTIONS, LLC, § DISTRICT OF TEXAS Appellee §
APPELLANTS’ SUPPLEMENT TO APPELLANTS’ EMERGENCY MOTION TO STAY TRIAL COURT PROCEEDINGS
COME NOW Appellants Bruce Craig, Tyler Craig, and Tejas Vending, LP,
and file this Supplement to their Emergency Motion to Stay Trial Court
Proceedings that are to be held on Friday, September 16, 2016, during the
pendency of this interlocutory appeal, and would request that the Court enforce the
statutory stay in Civil Practice and Remedies Code Section 51.014(b) for
interlocutory appeals allowed under Civil Practice and Remedies Code Section
51.014(a)(12).
I. Appellants Objected To Hearing; Trial Court Plans To Go Forward
1. Appellants filed their Objection to Court’s Consideration of Plaintiff’s
Motion for Leave to Supplement Record on September 15, 2016. See Exhibit A.
Appellants’ counsel notified the court’s staff attorney of the filing of the Objection.
Appellants’ Emergency Motion to Stay Proceedings 1 2. The court’s staff attorney then notified counsel that the court “is going
forward with the hearing tomorrow at 11:00 absent a ruling from the Third Court
of Appeals saying that she should not do so.” See Exhibit B.
IV. Prayer
WHEREFORE, PREMISES CONSIDERED, this Court should advance
consideration of the emergency motion, order a stay of the trial court hearing
currently scheduled for Friday, September 16, 2016, and enter any further
appropriate orders to enforce the statutory stay in Civil Practice and Remedies
Code Section 51.014(b) for interlocutory appeals allowed under Civil Practice and
Remedies Code Section 51.014(a)(12).
Appellants’ Emergency Motion to Stay Proceedings 2 Respectfully submitted,
The Weichert Law Firm 3821 Juniper Trace, Suite 106 Austin, Texas 78738 (512) 263-2666 (512) 263-2698 - Facsimile
By:__________/s/ Darryl W. Pruett Darryl W. Pruett Texas State Bar No. 00784795 darryl@weichertlaw.com George V. Basham, III Texas State Bar No. 01868000 george@weichertlaw.com Glenn K. Weichert State Bar No. 21076500 glenn@weichertlaw.com
ATTORNEYS FOR APPELLANTS
Appellants’ Emergency Motion to Stay Proceedings 3 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of this motion has been sent in accordance with the Texas Rules of Civil Procedure, as noted below, on this 13th day of September, 2016, to:
Matthew R. Beatty Beatty Bangle Strama PC 400 West 15th Street, Suite 1450 Austin, Texas 78701 Telephone: (512) 879-5050 Telecopier: (512) 879-5040
Hand Delivery in Person or by Agent x Electronic Service Email Service Courier Receipted Delivery Telephonic Document Transfer Certified Mail, Return Receipt Requested No.______________
/s/ Darryl W. Pruett Darryl W. Pruett
Appellants’ Emergency Motion to Stay Proceedings 4 9/15/2016 9:50:26 AM Velva L. Price District Clerk Cause No. D-1-GN-16-001959 Travis County D-1-GN-16-001959 TEJAS PROMOTIONS, LLC, § IN THE 261st JUDICIAL Jonathan Sanders Plaintiff, § § v. § DISTRICT COURT OF § BRUCE CRAIG, TYLER CRAIG, AND § TEJAS VENDING, LP § Defendants. § TRAVIS COUNTY, TEXAS
OBJECTION TO COURT’S CONSIDERATION OF PLAINTIFF’S MOTION FOR LEAVE TO SUPPLEMENT RECORD AND MODIFY ORDER OF DISMISSAL
COME NOW Bruce Craig (“B Craig”), Tyler Craig (“T Craig”), and Tejas Vending, LP
(“Tejas Vending”), Defendants in the above-referenced cause, and files this their Objection to Court’s
Consideration of Plaintiff’s Motion for Leave to Supplement Record (the “Motion to Supplement and
Modify”), and would show the following:
I.
1. Plaintiff sued Defendants on May 6, 2016. The causes of action were breach of
contract, misappropriation of trade secrets, and conspiracy to misappropriate trade secrets. Plaintiff
also requested certain declaratory and injunctive relief. The conspiracy to misappropriate trade secrets
centered on Bruce Craig’s alleged violation of a nondisclosure agreement (the “NDA”) by providing a
list of Plaintiff’s purported customers (which it claimed was a “trade secret”) to the other Defendants.
Plaintiff alleged that Bruce Craig, “[i]n direct violation of the NDA, . . .disclosed the information
regarding Tejas Promotions assets and business structure to his son, and defendant in this action, Tyler
Craig.” Plaintiff alleged that Bruce Craig “further disclosed that information to an entity he created
with a deceptively similar name, Tejas Vending LP.”
2. Plaintiff further alleged that Defendants, based on the disclosure, then “pursued a course
of action designed to use Tejas Promotions’ Confidential Information to steal Tejas Promotions
business.”
Defendants’ Objection To Consideration of Motion Page 1 3. Plaintiff alleged that the “Confidential Information” at issue pursuant to the NDA was a
trade secret.
4. Plaintiff also sued for conspiracy, alleging that “Defendants to this action conspired to
misappropriate Plaintiff’s trade secrets. . .”
5. The action that is the basis of the conspiracy claim is Bruce Craig’s purported
disclosure (or “communication”) of Plaintiff’s alleged trade secrets to Tyler Craig and Tejas Vending,
LP.
6. Plaintiff’s claim of conspiracy was a textbook example of something that is based on,
related to, or is in response to the Defendants’ exercise of the right of association. The “exercise of the
right of association” means “a communication between individuals who join together to collectively
express, promote, pursue, or defend common interests.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(2).
That is exactly what Plaintiff contended Defendants were doing. A “communication” includes “the
making or submitting of a statement or document in any form or medium, including oral, visual,
written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(1). This would, of
course, include the customer list that Plaintiff alleged was communicated by Bruce Craig to Tyler
Craig and Tejas Vending, LP.
7. Plaintiff sued all of the Defendants for conspiracy based on, relating to, or in response
to, Bruce Craig’s communication of the alleged trade secrets to Tyler Craig and Tejas Vending, LP.
8. The conspiracy to misappropriate trade secrets claim was frivolous. Claims of conspiracy to
misappropriate trade secrets are pre-empted by the Texas Uniform Trade Secrets Act.
9. On June 29, 2016, Defendants filed a Motion to Dismiss pursuant to Chapter 27, Civil Practice
& Remedies Code.
10. In response, and presumably recognizing the frivolous nature of the conspiracy claim,
Plaintiff abandoned the frivolous, pre-empted conspiracy claim and some of the declaratory relief
Defendants’ Objection To Consideration of Motion Page 2 claims and substituted other declaratory relief claims. A hearing on the Motion to Dismiss was held on
August 4, 2016. No evidence was presented either by affidavit or live testimony regarding Plaintiff’s
attorney’s fees.
11. The Honorable Rhonda Hurley transmitted her letter ruling dated August 24, 2016,
stating her ruling denying the Motion to Dismiss and Defendants’ Plea to the Jurisdiction. She did not
award Plaintiff any attorney’s fees nor did she reserve the issue for any further consideration.
12. Because Plaintiff’s counsel had not prepared and circulated any proposed order by
September 1, 2016, Defendants’ counsel proposed a simple form of order that corresponded with Judge
Hurley’s letter ruling.
13. Plaintiff’s counsel disagreed with the form of order, and proposed one awarding
Plaintiff attorney fees even though no evidence of Plaintiff’s attorney fees had been presented at the
hearing on the Motion to Dismiss and even though Judge Hurley’s letter ruling did not mention
14. Judge Hurley signed the Order denying the Motion to Dismiss on September 1, 2016.
Judge Hurley’s staff attorney stated to both counsel that Judge Hurley was “willing to entertain
attorney’s fees, but would need evidence,” thereby acknowledging that there had been no evidence
presented at the hearing on the Motion to Dismiss to support any attorney’s fees for Plaintiff.
15. Defendants filed their notice of appeal with the trial court clerk the same day. On that
same day, Defendants also requested that the trial court issue findings of fact and conclusions of law.
16. The thirty-day deadline for the trial court to rule on the Motion to Dismiss expired on
September 3, 2016.
17. On September 6, 2016, Judge Hurley’s staff attorney solicited legal authority from
counsel on the question of whether the trial court could conduct a hearing on attorney’s fees given that
the appeal had already been filed.
Defendants’ Objection To Consideration of Motion Page 3 18. On that same day, Defendants’ counsel provided the court with caselaw and
Defendants’ legal argument based on the statutory stay of “all proceedings” in an interlocutory appeal
of an order denying a Chapter 27 Motion to Dismiss. Plaintiff’s counsel responded on September 7,
2016, asserting that Defendants’ counsel’s “procedural maneuvering” (presumably the mere act of
filing the appeal) did not prevent the trial court from modifying the order being appealed, citing to
Rule of Appellate Procedure 27.3, without ever addressing the statutory stay and the general rule that a
statute would override any conflicting Rule of Appellate Procedure.
19. On September 9, 2016, Plaintiff filed a “Motion for Leave to Supplement Record and
Modify Order of Dismissal [sic]” (the “Motion to Supplement and Modify”). In its Motion to
Supplement and Modify, Plaintiff requested an additional, evidentiary, hearing and that the trial court
modify the order that is currently being appealed “and award attorneys’ fees to Plaintiff consistent with
the evidence presented at the hearing.”
20. The trial court’s staff attorney emailed counsel on the morning of September 13, 2016,
informing the parties that Judge Hurley intended to conduct a hearing on the Motion to Supplement
and Modify on September 16, 2016, at 11:00 a.m.
21. Interlocutory appeals of orders denying a motion to dismiss brought under Chapter 27,
Civil Practice and Remedies Code are specifically allowed pursuant to Civil Practice and Remedies
Code Section 51.014(a)(12)(“(a) A person may appeal from an interlocutory order of a district court,
county court at law, statutory probate court, or county court that: . . .(12) denies a motion to dismiss
filed under Section 27.003;. . .”). Pursuant to Civil Practice and Remedies Code Section 51.014(b), an
appeal pursuant to Section 51.014(a)(12) “stays the commencement of a trial in the trial court pending
resolution of the appeal. . .[AND] also stays all other proceedings in the trial court pending resolution
of that appeal.” Civil Practice and Remedies Code Sec. 51.014(b).
Defendants’ Objection To Consideration of Motion Page 4 22. Civil Practice and Remedies Code Sec. 51.014(b) is clear—an interlocutory appeal of
an order denying a Chapter 27 Motion to Dismiss stays not only the commencement of trial but “also
stays all other proceedings in the trial court pending resolution of that appeal.”
23. Defendants object to the trial court conducting any hearing on the Motion to
Supplement and Modify.
V. PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court observe the
statutory stay and stay all proceedings during the pendency of the interlocutory appeal. Defendants
pray that the Court not consider or conduct any hearing on the Motion to Supplement and Modify.
Defendants pray for such other and further relief to which Defendants may be justly entitled.
Respectfully submitted,
The Weichert Law Firm 3821 Juniper Trace, Suite 106 Austin, Texas 78738 (512) 263-2666 (512) 263-2698 - Facsimile
By: /s/ Darryl W. Pruett Darryl W. Pruett Texas State Bar No. 00784795 darryl@weichertlaw.com
George V. Basham, III Texas State Bar No. 01868000 george@weichertlaw.com
Glenn K. Weichert State Bar No. 21076500 glenn@weichertlaw.com
ATTORNEYS FOR DEFENDANTS
Defendants’ Objection To Consideration of Motion Page 5 CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing has been sent in accordance with the Texas Rules of Civil Procedure, as noted below, on this 15th day of September, 2016, to:
Matthew R. Beatty Beatty Bangle Strama PC 400 West 15th Street, Suite 1450 Austin, Texas 78701 Telephone: (512) 879-5050 Telecopier: (512) 879-5040
Hand Delivery in Person or by Agent Courier Receipted Delivery Telephonic Document Transfer Electronic Filing and Service Certified Mail, Return Receipt Requested No.
Defendants’ Objection To Consideration of Motion Page 6 The Weichert Law Firm Mail - RE: {EXTERNAL} Tejas Promotions v. C... https://mail.google.com/mail/u/0/?ui=2&ik=217d40dcc2&view=pt&searc...
Darryl Pruett
RE: {EXTERNAL} Tejas Promotions v. Craig et al.; Cause No. D-1-GN-16-001959 1 message
Michelle Roche Thu, Sep 15, 2016 at 10:34 AM To: Darryl Pruett Cc: "Matthew R. Beatty"
Mr. BeaƩy and Mr. PrueƩ,
Judge Hurley asked me to let you know that she is going forward with the hearing tomorrow at 11:00 absent a ruling from the Third Court of Appeals saying that she should not do so. She also asked me to let you know that Mr. BeaƩy can present his aƩorney’s fees evidence by way of affidavit and Mr. PrueƩ will be given an opportunity to cross examine.
Thank you.
Michelle Roche
Staff AƩorney for the Honorable Rhonda Hurley
98th District Court
Heman Marion SweaƩ
Travis County Courthouse
1000 Guadalupe St., Room 327
AusƟn, Texas 78701
Phone: (512) 854-7839
Facsimile: (512) 854- 9338
From: Darryl Pruett [mailto:darryl@weichertlaw.com] Sent: Thursday, September 15, 2016 10:07 AM To: Michelle Roche Cc: Matthew R. Beatty Subject: {EXTERNAL} Tejas Promotions v. Craig et al.; Cause No. D-1-GN-16-001959
Ms. Roche:
We have sent for electronic filing this morning the attached objection to the trial court considering the Motion to Supplement and Modify.
Darryl W. Pruett
The Weichert Law Firm
3821 Juniper Trace, Suite 106
Austin, Texas 78738 (512) 263-2666
(512) 263-2698 - Facsimile
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