AFFIRMED and Opinion Filed May 16, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01276-CV
KROGER SPECIALTY INFUSION CA, LLC, Appellant V. MARNI TAZAMISHA STURNS AND BIOPLUS SPECIALTY PHARMACY SERVICES LLC, Appellee
On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-21-10498
MEMORANDUM OPINION Before Justices Pedersen, III, Goldstein, and Garcia Opinion by Justice Garcia This appeal arises from the trial court’s entry of a no evidence summary
judgment in favor of Bioplus Specialty Pharmacy Services, LLC (“Bioplus”) and
Marni Tazamisha Sturns (“Sturns”) on Kroger Specialty Infusion CA, LLC’s
(“Kroger’s”) claims for misappropriation of trade secrets, tortious interference, and
breach of contract. As expressed in several issues, Kroger argues the trial court erred
in granting summary judgment on all of its claims. As discussed below, we affirm
the trial court’s judgment. I. BACKGROUND
Kroger is a clinical pharmacy dedicated to serving patients with chronic
illnesses requiring complex care. Kroger serves its patients by offering
comprehensive therapy management programs as well as injectable and oral
pharmaceutical treatments for a wide variety of chronic illnesses and conditions.
Sturns began working for Kroger as a special accounts manager in the
immunoglobin department in April 2015 and signed a noncompete agreement (the
“Agreement”) in connection with her employment. The Agreement had a one-year
term and covered a defined geographic area (the “Restricted Area”) that included
Sturns’s sales territory and any state adjacent to that territory. The Agreement
restricts Sturns from, among other things: (a) working for a competitor for one year
after termination in the Restricted Area (as defined in the Agreement); (b) soliciting
customers, referral sources, and patients in the Restricted Area (as defined in the
Agreement); and (c) using Kroger’s confidential information to compete unfairly.
In March 2021, Sturns left Kroger of her own accord and began working as a
sales representative for Bioplus. Kroger believed that Sturns was violating the
Agreement and initiated the underlying lawsuit against Sturns and Bioplus.
Kroger’s Original Petition and Application for Injunctive relief asserted
claims for breach of contract, tortious interference, and misappropriation of trade
secrets under the Texas Uniform Trade Secrets Act (“TUTSA”). See TEX. CIV. PRAC.
& REM. CODE ANN. §§134.001 et. seq. The petition requested injunctive relief,
–2– compensatory damages for harm “not susceptible to injunctive relief,” punitive
damages, and costs and attorney’s fees.
Discovery was conducted under a level three discovery control plan. The
court’s September 13, 2021 scheduling order set a May 3, 2022 discovery deadline.
Four months after the entry of the order, Kroger served written discovery on Bioplus
and Sturns. Bioplus and Sturns both responded on April 4, 2022.
On May 3, 2022, the day that discovery closed, Kroger moved to modify the
scheduling order and extend the time for discovery. The trial court denied the
requested extension and modification, but continued the trial date.1
Kroger filed a motion to compel on May 12, 2022. The motion is not included
in the record, and the record does not reflect that the motion was heard or otherwise
submitted for the court’s consideration.2
Sturns and Bioplus filed no evidence motions for summary judgment, and
Kroger responded to both motions. Kroger’s response relied on its verified petition,
its own answers to interrogatories, and the declaration of Ryan McGrath (the
“Declaration”) to defeat summary judgment.
The court conducted a hearing and granted summary judgment in favor of
Bioplus and Sturns on all of Kroger’s claims. This timely appeal followed.
1 Kroger does not challenge the denial of the motion on appeal. 2 The docket sheet includes an entry for a “Notice of Hearing/Fiat” on May 31, 2022 but there is no indication the court conducted a hearing. –3– II. ANALYSIS
A. Standard of Review and Applicable Law
After adequate time for discovery, a party may move for summary judgment
asserting that there is no evidence of one or more essential elements of a claim on
which the nonmovant would have the burden of proof at trial. See TEX. R. CIV. P.
166a(i). The rule requires that a no-evidence motion specifically state the element or
elements for which there is no evidence. TEX. R. CIV. P 166a(i); Cmty. Health Sys.
Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 695 (Tex. 2017).
Once the movant specifies the elements lacking evidence, the burden shifts to
the respondent to raise a fact issue on the challenged elements. See TEX. R. CIV. P
166a(i); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); see also
Bradford Ptrs. II, L.P. v. Fahning, 231 S.W.3d 513, 516–17 (Tex. App.—Dallas
2007, no pet.). We review a no-evidence motion for summary judgment under the
same legal sufficiency standard used to review a directed verdict. King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). A no-evidence challenge will be
sustained when: (1) there is a complete absence of evidence of a vital fact; (2) the
trial court is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact
is no more than a mere scintilla; or (4) the evidence conclusively establishes the
opposite of the vital fact. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex.
2013).
–4– More than a scintilla of evidence exists when the evidence would permit
reasonable and fair-minded people to differ in their conclusions. King Ranch, 118
S.W.3d at 751. Evidence that is so weak as to do no more than create a mere surmise
or suspicion does not create a fact issue. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865,
875 (Tex. 2014). In our review, we take as true all evidence favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts in his
favor. King Ranch, 118 S.W.3d at 751. We review a trial court’s summary judgment
de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
B. Adequate Time for Discovery
The parties had eight months to complete discovery after the trial court
entered the scheduling order. Kroger argues that the trial court’s ruling was
erroneous because there was inadequate time for discovery. We disagree.
A no-evidence motion for summary judgment may be granted only after “an
adequate time for discovery.” See TEX. R. CIV. P. 166a(i). But the rule does not
require that discovery be completed, only that there was “adequate time.” Id. see
also, Dishner v. Huitt–Zollars, Inc., 162 S.W.3d 370, 376 (Tex. App.—Dallas 2005,
no pet). The adequacy of the time for discovery is determined by the nature of the
action, the evidence required, and the length of time the case has been on file. See
Restaurant Teams Intern., Inc. v. MG Secs. Corp., 95 S.W.3d 336, 339 (Tex. App.—
Dallas 2002, no pet.). We review a trial court’s determination that there has been an
adequate time for discovery for an abuse of discretion. See Ling v. BDA&K Bus.
–5– Servs., Inc., 261 S.W.3d 341, 349 (Tex. App.—Dallas 2008, no pet.); Restaurant
Teams, 95 S.W.3d at 339.
Kroger does not identify any depositions remaining to be scheduled or that
were not completed or any additional paper discovery it needed to serve. Instead, it
relies on the filing of the motion to compel to argue the trial court “ignored the fact
that discovery disputes remained at the time of dismissal.” This argument is not
persuasive.
If a party is not satisfied with an opposing party’s discovery objections or
responses to discovery inquiries, that party may move the trial court to compel
discovery.” U. Lawrence Boze’ & Assoc., P.C. v. Harris Cnty. Appraisal Dist., 368
S.W.3d 17, 32 (Tex. App.—Houston [1st Dist.] 2011, no pet.); see also TEX. R. CIV.
P. 215.1. But “[t]o preserve error on a discovery dispute, the appealing party must
obtain a ruling by the trial court on the discovery issue.” U. Lawrence Boze’ &
Assoc., 368 S.W.3d at 32.
The motion Kroger refers to here is not included in the record. Moreover,
Kroger concedes it did not raise the motion to compel with the trial court, and the
record reflects that the motion was filed after the deadline for completion of
discovery. Therefore, we do not consider the untimely motion to compel filing in
our analysis.
In addition, the Texas Rules of Civil Procedure provide a remedy to address
an inadequate time for discovery. Specifically, when a party contends that it has not
–6– had an adequate opportunity for discovery before a summary judgment hearing, it
must file either an affidavit explaining the need for further discovery or a verified
motion for continuance. See TEX. R. CIV. P. 166a(g); Tenneco, Inc. v. Enterprise
Prods. Co., 925 S.W.2d 640, 648 (Tex. 1996). Kroger did neither. Accordingly, there
is no basis to conclude the trial court abused its discretion in determining that an
adequate time for discovery had passed.
C. The Summary Judgment Evidence
Kroger initially argued that we should consider its verified petition and its
answers to interrogatories, but properly conceded at oral argument that neither
constitute competent summary judgment evidence. See Watson v. Henderson, No.
05-08-01158-CV, 2010 WL 175082, at *3 (Tex. App.—Dallas Jan. 20, 2010 pet.
denied) (mem. op.) (party cannot rely on its own interrogatory answers even in the
absence of objection); Regency Field Servs., LLC v. Swift Operating, LLC, 622
S.W.3d 807, 819 (Tex. 2021) (pleadings generally do not qualify as summary
judgment evidence, even when verified). Therefore, the Declaration is the only
proffered evidence considered in our summary judgment analysis.
There were no objections to Kroger’s summary judgment evidence in the
court below and the parties disagree about the extent to which we can consider the
deficiencies in the Declaration. Kroger insists that any deficiencies are a matter of
form and cannot be considered because there was no objection in the trial court. See
Gonzalez v. VATR Const., LLC, 418 S.W.3d 777, 783 (Tex. App.—Dallas 2013, no
–7– pet.). Conversely, Bioplus responds that the deficiencies are substantive and pertain
to the sufficiency of the evidence and can therefore be challenged and considered
for the first time on appeal. See Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex.
App.—Dallas 2004, no pet.).
Objections to the testimony of an interested witness or the absence of personal
knowledge are defects in form. See Hartsfield v. Hartsfield Cabinet, 05-21-00896-
CV, 2022 WL 4103097, at *3 (Tex. App.—Dallas Sept. 8, 2022, no pet.) (mem. op.).
“Objections to the form of summary judgment evidence are preserved for review
only if such objections are made and ruled on by the trial court.” Id.
On the other hand, defects in the substance of the evidence do not require a
written ruling, and such objections may be raised for the first time on appeal.
Hartsfield, 2022 WL 4103097, at *3; Thompson, 127 S.W.3d at 450. Substantive
defects are those that leave the evidence legally insufficient and include affidavits
which are nothing more than legal or factual conclusions. Stewart v. Sanmina Texas
L.P., 156 S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet); Hou–Tex, Inc. v.
Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.—Houston [14th Dist.] 2000,
no pet.).
By rule, affidavits opposing summary judgment must “be made on personal
knowledge, shall set forth such facts as would be admissible in evidence, and shall
show affirmatively that the affiant is competent to testify to the matters stated
therein.” TEX. R. CIV. P. 166a(f); see also Ryland Grp., Inc. v. Hood, 924 S.W.2d
–8– 120, 122 (Tex. 1996) (per curiam); CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex.
App.—Houston [14th Dist.] 2008, pet. denied). Generally, a statement of subjective
belief, which is not supported by other summary-judgment proof, is insufficient.
Ryland Grp., 924 S.W.2d at 122. This is because an affidavit stated in terms of the
affiant’s “understanding” of the “circumstances” constitutes mere speculation and
has no probative force. See Frank’s Int’l, Inc. v. Smith Int’l, Inc., 249 S.W.3d 557,
566 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
A “conclusory” statement is defined as “[e]xpressing a factual inference
without stating the underlying facts on which the inference is based.” See Arkoma
Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008);
see also Bastida v. Aznaran, 444 S.W.3d 98, 105 (Tex. App.—Dallas 2014, no pet.)
(statements are conclusory if they fail to provide underlying facts to support their
conclusions). Conclusory affidavits are not sufficient to raise fact issues because
they are not credible or susceptible to being readily controverted. Ryland Grp., 924
S.W.2d at 122.
In the opening paragraph of the Declaration, McGrath says: “Unless stated
otherwise, I have personal knowledge of the facts contained in this Declaration.”
The Declaration then states, in pertinent part:
Specifically, I have reason to believe that Sturns solicited the following customers from [Kroger] to BioPlus [listing nine customers] ...
–9– Sturns’ solicitations of [Kroger’s] customers, referral sources and/or patients within the Restricted Area and/or the Sales Territory resulted in business being diverted from [Kroger] to BioPlus.
I have reason to believe that BioPlus now services, or at least serviced at one time, some or all of the [Kroger] customers, referral sources and/or patients identified above, who were within the Restricted Area and/or the Sales Territory and who were solicited or diverted by Sturns.
(Emphasis added).
Bioplus argues that this case is unique because McGrath affirmatively
disclaimed any personal knowledge of the pertinent facts. While we agree that the
disclaimer is unusual, the statement “I have reason to believe” signifies an absence
of personal knowledge, and as such, required a form objection in the court below.
See TEX. R. CIV. P. 166a(f); Hartsfield, 2022 WL 4103097, at *3.
But this does not end the inquiry because the statements expressing McGrath’s
beliefs are also conclusory. McGrath states that Sturns solicited customers and this
solicitation resulted in business being diverted to Bioplus. He further states that
Bioplus “now services, or at least serviced at one time,” the identified customers he
contends Sturns solicited. But McGrath provides no demonstrable basis for these
assertions. Instead, he simply concludes that Sturns solicited customers and business
was diverted without articulating how, why, or any other underlying facts to support
his conclusions. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984)
(affidavits consisting of only conclusions are insufficient to raise a question of fact);
Grant v. Wind Turbine & Energy Cables Corp, No. 02-21-00036-CV, 2022 WL
2840142, at *4 (Tex. App.—Fort Worth Jul. 21, 2022, no pet.) (mem. op.) (bare –10– assertions and conclusions without supporting facts are conclusory). In essence,
McGrath is saying that he believes these things occurred, without stating any basis
for those beliefs. See Nathan v. USAA Gen. Indem., No. 05-23-00106-CV, 2024 WL
1925864, at *3 (Tex. App.—Dallas May 2, 2024, no pet. h.) (mem. op.) (affiant’s
statement that she believed a misrepresentation occurred was conclusory); Carter v.
Ag America AVI, LLC., No.11-22-00127-CV, 2024 WL 1774099, at *5–6 (Tex.
App.—Eastland Apr. 25, 2024, no pet. h.) (affiant’s statement that she believed
judge was conspiring with opposing counsel was conclusory). These statements go
beyond a lack of personal knowledge because there is no premise whatsoever to
support the ultimate conclusions. “An inference is not reasonable if it is premised on
mere suspicion—some suspicion linked to other suspicion produces only more
suspicion, which is not the same as evidence.” Suarez v. City of Texas City, 465
S.W.3d 623, 624 (Tex. 2015). Unsubstantiated facts are conclusory. See Chupik
Prop. and Design, Inc. v. MCCS, Ltd., No. 03-22-00451-CV, 2024 WL 1750752, at
*3 (Tex. App.—Austin Apr. 24, 2024, no pet. h.) (mem. op.). We can consider the
conclusory nature of the Declaration on appeal. See Thompson, 127 S.W.3d at 450.3
3 The declaration was made “pursuant to 28 U.S.C. §1746.” Although the Declaration is made under penalty of perjury, it lacks the statutorily required jurat that includes the declarants date of birth. See Hays Street Bridge Rest. Grp. v. City of San Antonio, 570 S.W.3d 697,702 n.15 (Tex. 2019); see also TEX. CIV. PRAC. & REM. CODE ANN. § 132.001(d) (providing that an unsworn declaration used in lieu of an affidavit must include a jurat in substantially the prescribed form, which includes the declarant’s date of birth). Because there was no objection in the court below, we do not consider this form defect in this appeal. See Stone v. Midland Multifamily Equit. REIT, 334 S.W.3d 371, 374 (Tex. App.—Dallas 2011, no pet.).
–11– C. Kroger’s Claims
Kroger asserted a tortious interference against Bioplus, a TUTSA claim
against Bioplus and Sturns, and a breach of contract claim against Sturns. We
consider the Declaration to determine whether Kroger met its burden to adduce a
scintilla of evidence on these claims. See Bradford Ptrs., 231 S.W.3d at 516–17.
Breach of Contract
We begin with Kroger’s breach of contract claim against Sturns. A plaintiff
asserting a breach-of-contract claim must prove: (1) the existence of a valid contract;
(2) the plaintiff performed or tendered performance as the contract required; (3) the
defendant breached the contract by failing to perform or tender performance as the
contract required; and (4) the plaintiff sustained damages as a result of the breach.
USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479, 501 n.21 (Tex. 2018).
Sturns’s motion for summary judgment argues that Kroger has no evidence of
a breach of contract beyond conclusory allegations and no evidence of any damages
resulting from the alleged breach. We thus consider whether Kroger raised a fact
issue on these challenged elements. See Sw. Elec. Power, 73 S.W.3d at 215.
The Declaration authenticates and attaches the Agreement. McGrath then
states:
While employed by BioPlus, and shortly before becoming employed by BioPlus, Sturns solicited some of the same customers, referral sources and/or patients in her former Sales Territory, in violation of her Agreement with [Kroger].
–12– Sturns: (a) provided BioPlus business cards and marketing materials to one or more customers, referral sources and/or patients within the Restricted Area and/or the Sales Territory (both as defined in the Agreement); (b) conducted meetings with one or more such customers, referral sources and/or patients; and (c) met with or spoke to such customers, referral sources and/or patients.
Again, McGrath provides no factual basis to support these conclusions. But
even if we were to conclude the Declaration was sufficient to establish a contract
and raise a fact question about whether the contract was breached, there is no
evidence that Kroger suffered damages.
It is well-established that damages must always be proved with reasonable
certainty. Perthuis v. Baylor Miraca Genetics Laboratories, LLC, 645 S.W.3d 228,
243 (Tex. 2022). Kroger’s petition requested actual damages only to the extent
damages were not covered by injunctive relief. The Declaration simply states,
however, that “[Kroger] is seeking damages from Sturns and Bioplus for the
diversion of [Kroger’s] referral sources and patients.” Thus, Kroger not only failed
to affirmatively state that it had suffered damages, it provided no facts or figures to
support its basis for requesting damages. See James L. Gang & Assoc. v. Abbot
Labs., Inc., 198 S.W.3d 434, 439 (Tex. App.—Dallas 2006, no pet.) (no basis for
damages); see also Trebuchet Siege Corp. v. Pavecon, No. 05-12-00945-CV, 2014
WL 4071804 at *5 (Tex. App.—Dallas Aug. 19, 2014, no pet.) (mem. op.) (same).
Because Kroger failed to adduce evidence to support the challenged damage
element, the trial court did not err in concluding that Kroger failed to meet its
summary judgment burden on the breach of contract claim. See Jones v. Guildford, –13– LLC, No. 05-22-01252, 2023 WL 8540007, at *6 (Tex. App.—Dallas Dec. 11, 2023,
no pet.) (mem. op.) (no evidence of damages); Emergency Staffing Solutions, Inc. v.
Harvey, No. 05-21-00148-CV, 2023 WL 33369, at *6 (Tex. App.—Dallas Jan. 4,
2023, no pet.) (same).
Tortious Interference
We next consider whether the Declaration raises a fact issue on Kroger’s
tortious interference claim against Bioplus. The elements of tortious interference
with an existing contract are: (1) an existing contract subject to interference; (2) a
willful and intentional act of interference with the contract; (3) that proximately
caused the plaintiff’s injury; and (4) caused actual damages or loss. Prudential Ins.
Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).
Bioplus’s motion for summary judgment argued there was no evidence that
(i) it willfully and intentionally interfered with the contract, (ii) the interference
proximately caused Kroger’s injury, and (iii) Kroger incurred actual injury or loss.
Kroger was required to raise a fact issue on each of these elements. See Bradford
Ptrs., 231 S.W.3d at 516–17.
Kroger relies on the Declaration to generally argue that it produced evidence
demonstrating Sturns’s employment with Bioplus violated the Agreement, and
Sturns intentionally solicited at least ten of Kroger’s customers for Bioplus. Kroger
maintains these alleged facts are sufficient evidence to establish that Bioplus
intentionally interfered with the Agreement.
–14– As previously discussed, however, the conclusory statements in the
Declaration do not establish that Sturns solicited Kroger customers for Bioplus,
intentionally or otherwise. See Tessmer Law Firm, P.L.L.C v. Carillo, No. 05-23-
0081-CV, 2024 WL 1431149, at *7 (Tex. App.—Dallas Apr. 3, 2024 no pet. h.)
(mem. op.) (no specific facts providing basis for statements); Simons v. Medical
Hyperbarics, No. 05-23-0053-CV, 2024 WL 1130833, at *4 (Tex. App.—Dallas
Mar. 15, 2024, no pet.) (mem. op.) (statements that do not provide “specific factual
bases on which the conclusion was drawn are conclusory”) (quoting Adcock v. Cal
Maine Foods, Inc., No. 03022000418-CV, 2024 WL 201963, at *3 (Tex. App.—
Austin Jan. 9, 2024, no pet.)).
Moreover, even if there was evidence that Sturns solicited Kroger customers,
that fact would not establish that Bioplus knowingly and willfully violated the
Agreement. A tortious interference claim “cannot be premised merely on the hiring
of an at-will employee.” Lazar Spot, Inc. v. Hiring Partners, Inc., 387 S.W.3d 40,
53 (Tex. App.—Texarkana 2012, pet. denied). Rather, this court has held that “[t]o
establish a willful and intentional act of interference, there must be evidence that the
defendant was more than a willing participant—the defendant must have knowingly
induced one of the contracting parties to breach its obligations under the contract.”
Greenville Automatic Gas Co. v. Automatic Propane Gas and Supply, LLC, 465
S.W.3d 778, 786–87 (Tex. App.—Dallas 2015, no pet.). There is no such evidence
here.
–15– Because Kroger failed to carry its summary judgment burden to produce
sufficient evidence to raise a fact issue on the willful and intentional interference
element, the trial court did not err in granting summary judgment on Kroger’s
tortious interference claim. See Fitness Evolution, L.P. v. Headhunters Fitness,
L.L.C., No. 05-13-00506-CV, 2015 WL 6750047, at *23 (Tex. App.—Dallas Nov.
4, 2015, no pet.) (to survive summary judgment claim nonmovant must produce
some direct evidence of a willful act of interference).
TUTSA
Finally, we consider whether the Declaration was sufficient to defeat
summary judgment on Kroger’s TUTSA claim against Sturns and Bioplus. The
elements of trade secret misappropriation under TUTSA are: (i) a trade secret
existed; (ii) the trade secret was acquired through a breach of a confidential
relationship or discovered by improper means; (iii) the trade secret was used without
authorization; and (iv) the trade secret owner suffered damages as a result. See TEX.
CIV. PRAC. & REM. CODE ANN. §§ 134A.002(1),(3),(6); Snowhite Textile and
Furnishings, Inc. v. Innvision Hosp., Inc., No-05-18-01447-CV, 2020 WL 7332677,
at *4 (Tex. App.—Dallas Dec. 4, 2020, no pet.) (mem. op.); Twister B.V. v. Newton
Research Partners, LP, 364 S.W.3d 428, 437 (Tex. App.—Dallas 2012, no pet.).
The summary judgment motions argued there was no evidence to support the
second, third, and fourth elements of Kroger’s TUTSA claim. Again, Kroger relies
–16– on the Declaration to argue there is sufficient evidence to defeat summary judgment
on this claim.
Specifically, Kroger maintains the Declaration establishes that Sturns
solicited Kroger’s customers from her Kroger sales territory while employed by
Bioplus. According to Kroger, this demonstrates that Sturns breached a confidential
relationship with Kroger and used confidential information she obtained from
Kroger at Bioplus. Kroger further argues “there is evidence that the Kroger
customers Sturns solicited to Bioplus did in fact become Bioplus customers,
diverting profits from Kroger.”
We have concluded, however, that these assertions are unsupported by and
untethered to any facts, rendering them conclusory and, thus, no evidence to defeat
summary judgment motion. See, Ryland, 924 S.W.2d at 122. The deficiencies
remain even though they are argued in support of a different claim.
Further, even if there was competent summary judgment evidence to establish
that Sturns serviced some of the same clients at Bioplus that she serviced at Kroger,
this does not establish use of Kroger’s confidential information sufficient to defeat
summary judgment. See Greenville Automatic Gas, 465 S.W.3d at 788; see also Med
Rx. Servs., LLC v. Georgekutty, No. 02-21-00017-CV, 2021 WL 6069102, at *7–9
(Tex. App.—Fort Worth Dec. 23, 2021, no pet.) (mem. op.) (inferences did not
establish use or disclosure of confidential information); Lakeway Reg’l Med. Ctr.,
LLC v. Lake Travis Transitional LTCH, LLC, No. 03-15-0025-CV, 2017 WL
–17– 672451, at *14 (Tex. App.—Austin Feb. 17, 2017, pet. denied) (mem. op. on reh’g)
(speculation about use of confidential information was no more than surmise or
suspicion). Therefore, the trial court properly concluded there was no evidence to
support Kroger’s TUTSA claim.
III. CONCLUSION
Having resolved all of Kroger’s issues against it, we affirm the trial court’s
judgment.
/Dennise Garcia/ DENNISE GARCIA JUSTICE 221276F.P05
–18– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
KROGER SPECIALTY INFUSION On Appeal from the 193rd Judicial CA, LLC, Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-21-10498. No. 05-22-01276-CV V. Opinion delivered by Justice Garcia. Justices Pedersen, III and Goldstein MARNI TAZAMISHA STURNS participating. AND BIOPLUS SPECIALTY PHARMACY SERVICES LLC, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee MARNI TAZAMISHA STURNS AND BIOPLUS SPECIALTY PHARMACY SERVICES LLC recover their costs of this appeal from appellant KROGER SPECIALTY INFUSION CA, LLC.
Judgment entered this 16th day of May 2024.
–19–