Snowhite Textile and Furnishings, Inc. v. Innvision Hospitality, Inc.

• Court: Court of Appeals of Texas
• Decided: December 14, 2020
• Docket: 05-18-01447-CV
• Status: Published

Opinion

Affirmed and Opinion Filed December 14, 2020

In The Court of Appeals Fifth District of Texas at Dallas No. 05-18-01447-CV

SNOWHITE TEXTILE AND FURNISHINGS, INC., Appellant V. INNVISION HOSPITALITY, INC., Appellee

On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-11252

MEMORANDUM OPINION Before Justices Osborne, Partida-Kipness, and Pedersen, III Opinion by Justice Pedersen, III This suit arises from a dispute between two competitors in the furniture,

fixture, and equipment (“FF&E”) industry involving violation(s) of the Texas

Uniform Trade Secrets Act (“TUTSA”), tortious interference with prospective

business, and tortious interference with existing contracts. Following a bench trial,

the district court rendered judgment in favor of the plaintiff, Innvision Hospitality,

Inc. (“Innvision”). The defendant, Snowhite Textile and Furnishings, Inc.

(“Snowhite”), appeals the judgment, asserting, among other issues, that the evidence

is insufficient to support the district court’s liability findings. We affirm the trial

court’s judgment. I. BACKGROUND

A. Parties

Wyndham Hotels & Resorts (“Wyndham”) is a franchisor for a number of

hotel chains including Baymont, La Quinta, Microtel, and Super 8 (“brands”).

Innvision and Snowhite are two designated service providers (“DSPs”) for

Wyndham. These companies compete to provide a suite of services to design and

provide FF&E for the Wyndham brands. Wyndham submits leads on their

franchisee’s projects to their DSPs.1 After a DSP receives a lead on a Wyndham

project, the DSP prepares a preliminary quote—using the information provided by

Wyndham—to place a bid with the franchisee on the project.

DSPs often use Wyndham-selected design schemes and manufacturers when

working on a Wyndham project. DSPs access a file transfer protocol site maintained

by Wyndham (“Wyndham FTP”), which contains information regarding

Wyndham’s (i) pre-approved schemes and product specifications, and (ii) pre-

negotiated pricing with its vendors.

B. Baymont Odessa Project

Wyndham sent Innvision an advance lead for a franchisee named Brett

Norwich to complete FF&E work on a Baymont brand project located in Odessa,

Texas (“Odessa Project”). Although Wyndham projects often used generic or

1 These leads are referred to in the industry as “notice[s] of execution.” The leads vary in content but generally include a list of (1) required or replacement FF&E and (2) requested project tasks including refinishing, cleaning, and repairing items and areas. –2– prototype scheme pricing from the Wyndham FTP, Innvision created a custom

scheme for the Odessa Project. Innvision did not access information from the

Wyndham FTP in creating its preliminary bid for the Odessa Project. In September

2013, Pride Parr submitted Innvision’s preliminary bid to the Odessa Project

customer. Parr worked in Innvision’s “Regional Design and Procurement” group as

a sales representative.

Several Innvision employees left to join Snowhite in 2013. Emile Aboona

worked at Innvision until July 2013, when he resigned to work at Snowhite. Parr

worked at Innvision from July 1, 2013 until the first full week of October 2013, when

she resigned to work at Snowhite. Millette Gathright, Kevin Barbarise, and Radhika

Khurana also left Innvision to work at Snowhite.

After Parr began work at Snowhite in October 2013, she emailed Emile

Aboona—then Snowhite’s Chief Operating Officer—documents that Innvision had

generated for its preliminary bid on the Odessa Project. This email attached

Innvision internal documents that were not shared with the Odessa Project customer.

These documents were labeled “Innvision Design,” and included specifications,

renderings, room schemes, stock codes, descriptions, order quantities, unit costs, unit

prices, and net values.

Recognizing the value of these documents, Aboona and Dipak Kapadia, who

was Snowhite’s founder and president, sought to obtain further Innvision material.

Snowhite copied the former Innvision employees’ laptops and solicited additional –3– information related to Innvision’s bid on the Odessa Project from then-current and

former Innvision employees. Snowhite used the Innvision documents and

information that Aboona and the Snowhite information technology worker gathered

to secure their own winning bid for the Odessa Project.

C. Innvision Litigation Against Snowhite

Innvision sued Snowhite for (i) violations of the TUTSA,2 (ii) tortious

interference with existing contracts, and (iii) interference with prospective business

relations and contracts. Innvision also asserted claims against Aboona and Kapadia.

Innvision’s claims against Snowhite and Aboona were tried before the trial

court on October 23, 24, and 25, 2018.3 The trial witnesses included Christopher

Parker, Innvision’s president, co-owner, and co-founder; Kapadia; and Aboona. At

the conclusion of the bench trial, the trial court rendered judgment in favor of

Innvision, including (i) finding that Innvision owned trade secrets in the form of

design and planning specifications, along with pricing and margins data, relating to

its bid proposal for the Odessa Project; (ii) finding that Snowhite tortiously interfered

with Innvision’s prospective contract for the Odessa Project; (iii) finding that

Innvision sustained an economic loss of $45,000.00; and (iv) awarding Innvision’s

attorney’s fees against Snowhite. The trial court further ordered that Innvision take

2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 134A.001–.008. 3 Prior to final trial, Innvision non-suited its claims against Kapadia. –4– nothing on its claims against Aboona and dismissed those claims with prejudice.

This appeal followed.

II. ISSUES RAISED ON APPEAL Snowhite raises four issues on appeal.

1. Whether it was error to find liability under TUTSA where Appellee disclosed the purported “trade secrets” to a mutual third party customer, non-confidentially, before those materials were given to the Appellant?

2. Whether it was error to find Tortious Interference with Prospective Business where the alleged interference was Appellant submitting an identical “preliminary bid” to a mutual customer who had openly solicited competing bids, had not yet selected a vendor, and all of this in a bidding environment where much or all of such “preliminary bid” is dictated by the customer?

3. Whether it was error to find damages and/or consider evidence of lost profits at trial where a lost profits damages calculation was never disclosed and the actual evidence presented at trial was speculative and conclusory?

4. Whether it was error to award attorney’s fees under TUTSA where the Appellee failed to properly segregate its fees, and there is no showing of “malice” to support the “willful & malicious misappropriation” element of such award?

Snowhite challenges (i) both the legal and factual sufficiency of the evidence

and (ii) the admissibility of certain evidence.4

4 We note that Snowhite’s briefing does not expressly frame its first two issues as sufficiency issues. Snowhite’s briefing fails to meaningfully identify the respective standard of review for these two issues in its appellant brief. See TEX. R. APP. P. 38.1(f), (i). Only in Snowhite’s reply brief does it identify that the first issue is to be reviewed at least under a factual sufficiency review. To adequately address Snowhite’s first two issues, we apply both legal and factual sufficiency review standards. –5– III. STANDARD OF REVIEW “In an appeal from a bench trial, the trial court’s findings of fact have the same

weight as a jury verdict.” Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—

Dallas 2016, no pet.) (citing Fulgham v. Fischer, 349 S.W.3d 153, 157 (Tex. App.–

Dallas 2011, no pet.)). Here, the appellate record contains a reporter’s record;

therefore the trial court’s findings of fact are not conclusive and are binding only if

supported by the evidence. Id. “We review a trial court’s findings of fact under the

same legal and factual sufficiency of the evidence standards used when determining

if sufficient evidence exists to support an answer to a jury question.” Id. (citing

Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994)).

i. Legal Sufficiency

“When an appellant challenges the legal sufficiency of an adverse finding on

which he did not have the burden of proof at trial, he must demonstrate there is no

evidence to support the adverse finding.” Fulgham v. Fischer, 349 S.W.3d 153, 157

(Tex. App.—Dallas 2011, no pet.). We view the evidence in the light most favorable

to the fact finding, indulging every reasonable inference that would support it and

disregarding contrary evidence unless a reasonable factfinder could not. Bos v.

Smith, 556 S.W.3d 293, 300 (Tex. 2018). “When reviewing the record, we determine

whether any evidence supports the challenged finding.” Fulgham, 349 S.W.3d at

157. “If more than a scintilla of evidence exists to support the finding, the legal

sufficiency challenge fails.” Id.; see Formosa Plastics Corp. USA v. Presidio Eng’rs

–6– & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); see also King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (more than a scintilla of evidence exists

when evidence “rises to a level that would enable reasonable and fair-minded people

to differ in their conclusions”). We defer to the trial court’s fact findings if they are

supported by legally sufficient evidence. Bos, 556 S.W.3d at 300.

ii. Factual Sufficiency

“When an appellant challenges the factual sufficiency of the evidence on an

issue, we consider all the evidence supporting and contradicting the finding.”

Fulgham, 349 S.W.3d at 157 (citing Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d

442, 445 (Tex. 1989)). “We set aside the finding for factual insufficiency only if the

finding is so contrary to the evidence as to be clearly wrong and manifestly unjust.”

Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam)). In a bench

trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses.

Id. As long as the evidence falls ‘within the zone of reasonable disagreement,’ we

will not substitute our judgment for that of the fact-finder. Id. (quoting City of Keller

v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). In conducting a factual sufficiency

review, we should detail the evidence relevant to the issue in consideration and

clearly state why the finding is factually insufficient or is so against the great weight

and preponderance as to be manifestly unjust, shock the conscience, or clearly

demonstrate bias. Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019).

–7– iii. Admissibility of Evidence

We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam). A trial

court abuses its discretion when it acts “without reference to any guiding rules and

principles”—if it acts arbitrarily or unreasonably. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We will uphold the ruling if

there is any legitimate basis in the record to support it. Ten Hagen Excavating, Inc.

v. Castro-Lopez, 503 S.W.3d 463, 490 (Tex. App.—Dallas 2016, pet. denied). To

reverse an erroneous evidentiary ruling, an appellant must both establish error and

show that the error probably caused an improper judgment. TEX. R. APP. P. 44.1;

Thawer v. Comm’n for Lawyer Discipline, 523 S.W.3d 177, 183 (Tex. App.—Dallas

2017, no pet.).

IV. ISSUE ONE – WHETHER IT WAS ERROR TO FIND LIABILITY UNDER TUTSA WHERE APPELLEE DISCLOSED THE PURPORTED “TRADE SECRETS” TO A MUTUAL THIRD PARTY CUSTOMER, NON-CONFIDENTIALLY, BEFORE THOSE MATERIALS WERE GIVEN TO THE APPELLANT

“When an effort is made to keep material important to a particular business

from competitors, trade secret protection will be available.” Rugen v. Interactive

Bus. Sys., Inc., 864 S.W.2d 548, 552 (Tex. App.—Dallas 1993, no writ). “TUTSA

was enacted in 2013 ‘to make uniform the law with respect to the subject of this

chapter among states enacting it.’” Baxter & Associates, L.L.C. v. D & D Elevators,

Inc., No. 05-16-00330-CV, 2017 WL 604043, at *6 (Tex. App.—Dallas Feb. 15,

–8– 2017, no pet.) (mem. op.) (quoting CIV. PRAC. & REM. § 134A.008). Subsection

134A.002(6) provides,

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, process, financial data, or list of actual or potential customers or suppliers, that:

(A) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

(B) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

CIV. PRAC. & REM § 134A.002(6). Subsection 134A.002(3) defines

“misappropriation” as,

(A) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

(B) disclosure or use of a trade secret of another without express or implied consent by a person who: . . .

(ii) at the time of disclosure or use, knew or had reason to know that the person’s knowledge of the trade secret was:

(a) derived from or through a person who used improper means to acquire the trade secret; . . .

CIV. PRAC. & REM § 134A.002(3). In summary, 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

–9– trade secret owner suffered damages as a result. CIV. PRAC. & REM. §§

134A.002(1),(3),(6); Twister B.V. v. Newton Research Partners, LP, 364 S.W.3d

428, 437 (Tex. App.—Dallas 2012, no pet.); Calce v. Dorado Expl., Inc., 309

S.W.3d 719, 737–38 (Tex. App.—Dallas 2010, no pet.) (party is entitled to recover

for misappropriation of trade secrets by establishing the existence of a trade secret,

breach of a confidential relationship, use of the trade secret without authorization,

and resulting damages).

1) Innvision’s Disclosure of the Odessa Bid Proposal

The trial court found that “[Innvision] owned trade secrets in the form of

design and planning specifications, along with pricing and margins data, relating its

bid proposal for the [Odessa Project].” The document that is germane to the bid

proposal and the trade secret dispute is Exhibit 22—the email from Parr to Aboona.

The body of the email reads “[h]ere is what we [Innvision] have sent [to the Odessa

Project customer] to date and all the mood boards from design. Let me know if you

have any questions.” Parr’s email attached several documents and—most

importantly—a spreadsheet. The spreadsheet listed stock codes, descriptions, order

quantities, unit costs, unit prices, and net values. Parker testified that this spreadsheet

was an “Innvision internal quotation,” derived from Innvision’s accounting software

(“Markup Spreadsheet”). The other attached documents included mood boards,

which Parker testified “are digitally constructed layouts of what an interior will look

like when the fabrics and materials are combined together.” The mood boards –10– depicted various FF&E arranged in virtual room configurations. The remaining

attached documents included sales quotations, which show descriptions, unit prices,

quantities, and total costs for various FF&E. The trial court found that “[Snowhite]

knew these data were trade secrets and surreptitiously acquired them.”

Snowhite first argues that even if Exhibit 22 were a trade secret, Innvision

forfeited that trade secret status. Snowhite relies on INEOS Group Ltd. v. Chevron

Phillips Chemical Co., LP, which held “. . . ”the unrestricted disclosure of trade-

secret information to third parties, outside the context of a confidential relationship,

destroys the trade-secret status of the information.” 312 S.W.3d 843, 852 (Tex.

App.—Houston [1st Dist.] 2009, no pet.) (internal citations omitted). Snowhite

contends that—because Innvision submitted its trade secret to the Odessa Project

customer—Innvision no longer enjoys trade-secret protection. Snowhite bases this

assertion on the body of the email of Exhibit 22, framing the referenced disclosure

to the Odessa Project customer as an “unrestricted disclosure.” The body of the email

reads “[h]ere is what we [Innvision] have sent [to the Odessa Project customer] to

date and all the mood boards from design. Let me know if you have any questions.”

Here, although Innvision concedes to piecemeal disclosure of certain parts of

Exhibit 22 to the Odessa Project customer as a part of its bid proposal, there is

conflicting evidence regarding whether the Markup Spreadsheet was disclosed to the

Odessa Project customer. Apart from the sentence in Exhibit 22, there is scant

support in the record that the Markup Spreadsheet was given to the Odessa Project –11– customer. Parker testified that Innvision “reviewed the files and emails that Pride

Parr sent as part of the discovery process for this case, and [the Markup Spreadsheet]

was not there.” Parker further testified that Innvision expected the client to treat

disclosed materials as confidential, so that no trade secret protection was lost:

. . . [W]hen we send a client a sales quotation, we believe that information is confidential. Most clients in our experience do not share sales quotations from the competitor. And in that experience, that keeps it confidential in our eyes. I know there are instances where a client may choose to share that, but what we’ve seen is that most of the time a client is not sharing a competitor’s quotation, therefore, we think it’s confidential.

“[A] limited disclosure to others pledged to secrecy will not destroy the trade

secret’s status as such.” Leonard v. State, 767 S.W.2d 171, 175 (Tex. App.—Dallas

1988); see also Schalk v. State, 823 S.W.2d 633 (Tex. Crim. App. 1991) (citing

Metallurgical Indus. Inc. v. Fourtek, Inc., 790 F.2d 1195, 1200 (5th Cir.1986)). “If

a voluntary disclosure occurs in a context that would not ordinarily occasion public

exposure, and in a manner that does not carelessly exceed the imperatives of a

beneficial transaction, then the disclosure is properly limited and the requisite

secrecy retained.” Taco Cabana Int’l, Inc. v. Two Pesos, Inc., 932 F.2d 1113, 1124

(5th Cir. 1991). “Trade secret status is not destroyed simply by showing the

protected item to prospective buyers, customers, or licensees.” Lamont v. Vaquillas

Energy Lopeno, Ltd., LLP, 421 S.W.3d 198, 212 (Tex. App.—San Antonio 2013, no

pet.). The Fifth Circuit Court of Appeals has held:

–12– a holder may divulge his information to a limited extent without destroying its status as a trade secret. To hold otherwise would greatly limit the holder’s ability to profit from his secret. If disclosure to others is made to further the holder’s economic interests, it should, in appropriate circumstances, be considered a limited disclosure that does not destroy the requisite secrecy.

Metallurgical Indus. Inc., 790 F.2d at 1200. In Metallurgical Industries Inc., the

Fifth Circuit held that trade secret holder Metallurgical’s disclosures of its trade

secret to others were limited—and therefore insufficient to extinguish the secrecy

Metallurgical’s other evidence had suggested—for two reasons. Id. First,

Metallurgical’s “disclosures were not public announcements; rather, Metallurgical

divulged its information to only two businesses with whom it was dealing.” Id.

(distinguishing Luccous v. J.C. Kinley Co., 376 S.W.2d 336 (Tex. 1964), “in which

the court concluded that the design of a device could not be a trade secret because it

had been patented—and thus revealed to all the world—before any dealing between

the parties”). Second, Metallurgical “revealed its discoveries as part of business

transactions by which it expected to profit.” Id.

Similar to Metallurgical’s, the record shows that Innvision’s disclosure of its

bid proposal was not unrestricted. Innvision (i) divulged its bid proposal to the

Odessa Project customer—not as a public announcement and (ii) divulged its bid

proposal as a part of a business transaction by which it expected to profit. See

generally id. Furthermore, there is evidence suggesting that Innvision did not submit

the Markup Spreadsheet to the Odessa Project customer. Considering the evidence

–13– in the light most favorable to the verdict and indulging every reasonable inference

that would support the trial court’s verdict, we conclude that a rational factfinder

could have found the evidence was legally sufficient to support a finding that

Innvision’s disclosure(s) to the Odessa Project customer did not cause Innvision to

forfeit its trade secret. Therefore, we conclude that legally sufficient evidence

supports the trial court’s implied finding that that Innvision’s disclosure(s) to the

Odessa Project customer did not cause Innvision to forfeit its trade secret.

Considering all the evidence in the record supporting and contradicting the trial

court’s judgment, we also conclude that a rational factfinder could have found the

evidence was factually sufficient that Innvision did not forfeit its trade secret. On

this record, such a finding would not be so against the great weight and

preponderance as to be manifestly unjust, shock the conscience, or clearly

demonstrate bias. Therefore, we conclude that both legally and factually sufficient

evidence supports the trial court’s implied finding that Innvision did not forfeit its

trade secret.

2) Whether a Trade Secret Existed

Snowhite next argues that Innvision’s Odessa Project bid proposal was not a

trade secret even before disclosure to the Odessa Project customer. We have

described above that Exhibit 22 consisted of information and compilation of data, so

our focus turns to the remaining elements of a trade secret: (i) the economic value of

the information and (ii) the efforts used to maintain the information’s secrecy. –14– i. Economic Value of Exhibit 22

Parker testified that the Markup Spreadsheet’s stock codes indicated the

specific FF&E manufacturer for each particular item. He explained that the Markup

Spreadsheet’s relationship between the unit cost and unit price reveals the markup

of Innvision’s service to its customers—that “as a matter of practice, a salesperson

would not send its company costs to a customer.”5 Parker explained that the Markup

Spreadsheet, in combination with the design specifications and sales quotations in

Exhibit 22, could be used by a competitor to “undercut” Innvision.

The record indicates that the general contractor for the Odessa Project

provided Innvision with a list of FF&E items and quantities to be included in various

areas. The record contains emails between the general contractor and Innvision in

which certain vendors are named by reference in discussion of bids. The record

indicates that the Wyndham FTP provided a “generic . . . prototype approved scheme

pricing.” However, those documents do not contain the respective vendors’ pricing

or markups with Innvision on the Odessa Project—the record shows that solely

Exhibit 22 contains that combination of information.

Furthermore, the record shows that Innvision did not use the generic prototype

on the Odessa Project. Parker testified that Innvision’s “designers were designing a

5 Parker testified “[u]nit cost here means the vendor pricing, the manufacturer’s price to Innvision. That’s a cost that we are going to pay that for that item, or a projected cost if this is a preliminary budget. So[,] unit cost and unit price have a relationship with each other. The markup that we talked about earlier, or the margin, is something that is relational between those two.” –15– Baymont custom for that project.” The record indicates that the vendor prices found

in Exhibit 22 were unique to Innvision and derived from Innvision’s relationship

with its vendors. Parker explained that “vendor relationships were… one of the

pillars of [Innvision’s] success.”

Both Aboona and Kapadia admitted that the information contained in Exhibit

22 was confidential. While working at Snowhite in October 2013, Aboona wrote in

an email to a Wyndham representative about markups:

I do recall this was asked of us when I was at Innvision and at that time I explained that this is confidential information as we could not generate one standard mark-up across the board since each FF&E category will differ in mark-up parameters in order to remain competitive. This explanation will also apply here as well and it will be difficult to provide you with our [Snowhite’s] mark ups for the same reason.

During Kapadia’s testimony in court, he was asked:

Q: At least in the 2013 timeframe, did Snowhite consider margin information to be confidential?

A: Yes. ... Q: There’s no dispute that at least in this industry margin information is confidential, right?

A: Yes.

Furthermore, Kapadia testified that the Odessa Project used a custom scheme.

ii. Efforts to Maintain Secrecy

The record shows that Innvision took steps to maintain the secrecy of Exhibit

22. First, Innvision required Parr, Aboona, and its other employees to agree that they

–16– would not disclose Innvision’s confidential information for a period of two years

after the term of their employment ended.6 Second, Innvision used internal

accounting software to maintain their vendor descriptions and pricing. With respect

to this internal accounting software, Parker explained that Innvision (i) limited

access to project salespeople or project support, (ii) protected access with

password(s), (iii) ran the software on an internal Innvision network, and (iv) did not

load the software onto outside salespeople’s computers. As mentioned above,

Innvision did not share its markups with its customers.

Thus, the record shows that the Exhibit 22 email consisted of information and

compilation of data that (i) had independent economic value not readily

ascertainable by proper means by other persons who can obtain economic value from

its disclosure or use, which (ii) Innvision made reasonable efforts to maintain as a

secret. Considering the evidence in the light most favorable to the verdict and

6 Innvision’s confidentiality agreement defines “confidential information” as follows: 7. Confidential Information. Employee agrees that he/she shall not, during the term of this Agreement and continuing for a period of two (2) years thereafter, disclose to any person or entity whatsoever, other than to Employer or its representatives, or use for his/her personal benefit or that of any party other than Employer in any manner whatsoever, any confidential or proprietary business information of Employer including, but not limited to, confidential and proprietary financial data, marketing data, product markets, market projections. sales leads und opportunities, contacts, customers or customer lists, vendor lists. product plans, products, prototypes or models, software, hardware, designs, drawings, research, engineering know-how, services, recipes, methods of manufacture or production, techniques for improved production which are not otherwise included within the definition of Trade Secrets all such information being collectively defined as ‘‘Confidential Information.” To the extent that Confidential Information covered by this paragraph constitutes a ‘‘trade secret” as that term is defined under applicable law, this paragraph is not intended to. and does not, limit or waive Employer’s rights or remedies thereunder, and the time period for prohibition on disclosure or use of such trade secret information is as provided by such applicable law. –17– indulging every reasonable inference that would support the trial court’s verdict, we

conclude that a rational factfinder could have found that Innvision owned a trade

secret in its bid proposal. Therefore, we conclude the evidence is legally sufficient

that Innvision owned a trade secret in its bid proposal. Considering all the evidence

in the record supporting and contradicting the trial court’s finding, we conclude the

trial court’s finding that Innvision owned a trade secret was not so contrary to the

evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate

bias. We conclude that factually sufficient evidence supports the trial court’s finding

that Innvision owned a trade secret in its bid proposal. Since we conclude the

evidence was legally and factually sufficient to show that (i) Innvision owned a trade

secret and (ii) Innvision did not forfeit its trade secret, it was not error for the trial

court to find liability under TUTSA. We overrule Snowhite’s first issue.

V. ISSUE TWO – WHETHER IT WAS ERROR TO FIND TORTIOUS INTERFERENCE WITH PROSPECTIVE BUSINESS WHERE THE ALLEGED INTERFERENCE WAS APPELLANT SUBMITTING AN IDENTICAL “PRELIMINARY BID” TO A MUTUAL CUSTOMER WHO HAD OPENLY SOLICITED COMPETING BIDS, HAD NOT YET SELECTED A VENDOR, AND ALL OF THIS IN A BIDDING ENVIRONMENT WHERE MUCH OR ALL OF SUCH “PRELIMINARY BID” IS DICTATED BY THE CUSTOMER

“Texas, like most states, has long recognized a tort cause of action for

interference with a prospective contractual or business relation.” Wal-Mart Stores,

Inc. v. Sturges, 52 S.W.3d 711, 712–13 (Tex. 2001).

To prevail on a claim for tortious interference with prospective business relations, the plaintiff must establish that (1) there was a reasonable probability that the plaintiff would have entered into a business relationship with a third party; (2) the defendant either acted with a –18– conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct; (3) the defendant’s conduct was independently tortious or unlawful; (4) the interference proximately caused the plaintiff injury; and (5) the plaintiff suffered actual damage or loss as a result.

Coinmach Corp. v. Aspenwood Apartment Corp., 417 S.W.3d 909, 923 (Tex. 2013).

Snowhite argues that the trial court erred in making its finding that “Snowhite did

tortuously interfere with [Innvision]’s prospective contract on the [Odessa Project].”

Snowhite challenges the first, third, and fourth elements of tortious interference with

prospective business relations in this issue.7 Snowhite challenges the actual damage

or loss element of tortious interference in its third issue discussed hereunder.8

1) Whether Snowhite’s Conduct Was Independently Tortious or Unlawful

The trial court found, and we have confirmed, that Snowhite violated the

TUTSA by misappropriating Innvision’s trade secret. Trade secret misappropriation

under the TUTSA is an “independently tortious act,” which supports the third

element of tortious interference with prospective business. See id; Rugen, 864

S.W.2d at 552; CIV. PRAC. & REM. §§ 134A.002(1), (3), (6). Snowhite urges that

Innvision owned no trade secret, and therefore, no independently tortious act of trade

7 Snowhite specifically argues (i) that the Odessa bid proposal was not a trade secret, so its acquisition and use by Snowhite cannot be construed as an independently tortious act; (ii) the evidence at trial was insufficient to establish that Innvision was likely to enter a business relationship with the Odessa Project customer; and (iii) “each entities’ submission of identical ‘preliminary bids’ as the beginning stage to their separate and independent processes of designing unique final bids, does not demonstrate that Appellee was somehow robbed of its fair opportunity to win the Odessa business.” 8 We do not address the second element of tortious interference with prospective business relations— whether the defendant either acted with a conscious desire to prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct—because Snowhite does not challenge the second element. See Coinmach Corp., 417 S.W.3d at 923. –19– secret misappropriation occurred. We have rejected that argument, and Snowhite’s

briefing does not otherwise dispute the remaining elements of the independently

tortious act of misappropriation of trade secret; therefore, we do not address those

elements. Consequently, we reject Snowhite’s assertion that its actions cannot be

construed as an independently tortious act of trade secret misappropriation, which

meets the third element of tortious interference with prospective business.

2) Whether There Was a Reasonable Probability that the Innvision Would Have Entered Into a Business Relationship with the Odessa Project Customer

Snowhite contends that there was no likelihood that Innvision would have

entered into a business relationship with the Odessa Project customer but for

Snowhite’s actions. First, Snowhite frames Innvision’s Odessa bid as “only in its

infancy” and “merely . . . a preliminary bid.” Snowhite refers to Parker’s testimony

that Innvision’s “whole sales cycle from meeting a potential client to fulfilling their

FF&E can take up to [twenty-four] months, but it’s more common for it to take nine,

[twelve] months if it’s a new construction.” Parker also testified that the Innvision

quote was a “preliminary quote” and “that there are preliminarily estimates, and then

there are final sales quotations.” Nevertheless, the record shows that Snowhite’s

ultimate winning bid on the Odessa Project used documents and figures identical to

those found in Innvision’s “preliminary quote”—with slight changes such as

changing the logo from “Innvision” to “Snowhite” and changing Innvision’s

employees’ names to Snowhite’s respective employee’s names. –20– Snowhite next refers to evidence of email correspondence between Innvision

and an Odessa Project customer’s team member, Chad Huffer, to supports its

argument that the Odessa Project customer had not committed to Innvision and was

actively soliciting bidders (“Huffer Email”). However, the text of the Huffer Email

does not discuss committing to Innvision or any other bidder. Regarding bids, the

Huffer Email—which was emailed to Parr at her Innvision email address—states

“[i]t has been difficult to get accurate bids based on the drawings because so many

things are different from what I understand.”9

Parker testified on the Odessa Project that “[i]n September [Innvision was] far

enough along with that [Odessa Project customer] to know that we were engaged in

the process. [Innvision’s] credit team had been engaged and had received a credit

application and letters from the [Odessa Project customer]’s bank.” Parker further

stated that—by the time a client talks with the Innvision credit team—

95 percent of the time we would expect to win a job, if the client has received preliminarily pricing, given us the credit application readily, provided all the information on the credit app so that we could do the research to determine where the funding is for the project and what sort of creditworthiness the client will have. ... And further, to have the client introduce us to the banker and begin getting letters from the bank sent to us to build the case for the client that he or she has a creditworthy status. Once we’ve gotten to that point, even if the pricing hasn’t been completely finalized, our credit team has

9 Snowhite suggests that the Odessa Project customer accepted Snowhite’s bid based on the Odessa Project customer’s relationship with Parr. However—beyond Huffer’s email’s addressing Parr by her name— Snowhite offers no record citation to support this inference. Snowhite raises this suggestion in its assertions regarding proximate cause, discussed infra.

–21– done that enough to see that the client is really our client. It’s really something that we would 19 times out of 20 expect to win that business.10

We reject Snowhite’s assertion that Innvision’s Odessa bid was only in its

infancy and merely a preliminary bid.

3) Whether Snowhite’s Actions Proximately Caused Innvision Injury

The trial court found that Snowhite used Innvision’s data “to obtain the

‘Odessa Job,’ which otherwise would have gone to [Innvision].” Snowhite contends

that its actions did not proximately cause Innvision injury because the Odessa Project

customer’s “real allegiance was always to Pride Parr, not to [Innvision].” Apart from

the Huffer Email discussed above, Snowhite cites no evidence to support this

assertion—instead raising a purported opinion that “[i]t doesn’t even make sense

that submission of an identical bid would represent some sort of unfair advantage.”

The evidence shows that Snowhite hired and used Parr, Gathright, and other

former Innvision employees to obtain Innvision documents, including Innvision’s

custom scheme created for the Odessa Project and related trade secret documents.

There is no evidence that Snowhite generated its own bid without use of the

confidential Innvision documents. To the contrary, Snowhite used Innvision’s trade

secrets to submit a bid identical to Innvision’s bid for the Odessa Project. Snowhite

secured the Odessa Project and earned a profit, whereas Innvision did not earn profit

10 Parker testified “the whole sales cycle from meeting a potential client to fulfilling their FF&E can take up to 24 months, but it’s more common for it to take nine, 12 months if it’s a new construction.” –22– from its work. The evidence suggests that, were it not for Snowhite’s actions in

obtaining and using Innvision’s confidential documents, the Odessa Project

customer would have selected Innvision for the Odessa Project. We reject

Snowhite’s contention that its actions did not proximately cause Innvision injury.

Considering the evidence in the light most favorable to the verdict and

indulging every reasonable inference that would support the trial court’s verdict, we

conclude that a rational factfinder could have found that (i) there was a reasonable

probability that Innvision would have entered into a business relationship with the

Odessa Project customer; (ii) Snowhite’s conduct was independently tortious or

unlawful; and (iii) Snowhite’s interference proximately caused Innvision injury. In

our review of all the evidence in the record supporting and contradicting the trial

court’s judgment, we further conclude that the trial court’s implied findings as to

these three elements are not so contrary to the evidence as to be manifestly unjust,

shock the conscience, or clearly demonstrate bias. We conclude that legally and

factually sufficient evidence supports the trial court’s finding. Accordingly, it was

not error for the trial court to find that Snowhite tortiously interfered with Plaintiff’s

prospective contract on the Odessa Project. We overrule Snowhite’s second issue.

–23– VI. ISSUE THREE – WHETHER IT WAS ERROR TO FIND DAMAGES AND/OR TO CONSIDER EVIDENCE OF LOST PROFITS AT TRIAL WHERE NO LOST PROFITS DAMAGES CALCULATION WAS DISCLOSED AND THE ACTUAL EVIDENCE PRESENTED AT TRIAL WAS SPECULATIVE AND CONCLUSORY The trial court found that Innvision sustained damages for both violation of

the TUTSA and tortious interference, measured at the same amount.11 The Texas

Supreme Court has held that “[a] ‘flexible and imaginative’ approach is applied to

the calculation of damages in misappropriation-of-trade-secrets cases.” Sw. Energy

Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 710 (Tex. 2016) (quoting Univ.

Computing Co. v. Lykes–Youngstown Corp., 504 F.2d 518, 538 (5th Cir. 1974)).

Damages in misappropriation cases can therefore take several forms, including the value of the plaintiff’s lost profits, the defendant’s actual profits from the use of the secret . . . ... Loss of value to the plaintiff is usually measured by lost profits. ... To recover lost profits, a party must introduce objective facts, figures, or data from which the amount of lost profits can be ascertained.

Id. at 710-711. (emphasis added, internal quotations and citation omitted). “The

plaintiff bears the burden of providing evidence supporting a single complete

calculation of lost profits, which may often require certain credits and expenses.”

ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 878 (Tex. 2010). Here,

Snowhite argues that it was error for the trial court to consider evidence of

11 The trial court found “[T]he measure of economic damages on the tortious interference claim is the same as for the TUTSA claim.” –24– damages—in particular, testimony from Kapadia—because Innvision failed to

disclose its proposed method of calculating damages prior to trial.

1) Challenged Testimony

During trial, Innvision introduced Kapadia’s testimony from his June 14, 2017

deposition. Kapadia—testifying as Snowhite’s corporate representative—testified as

follows:

Q: Four is a question about Pride Parr or is a topic list about Pride Parr. It says, six months of sales rep, did bring one—what does that say?

A: One project.

Q: One project. Had trouble working with client and project, and that project was Baymont Odessa?

A: Baymont Odessa, yes.

Q: And you mentioned before where there was an interrogatory response which says there was 600,000—

Q: —approximately in revenue generated from that deal?

A: Yes. And probably total that was a net sales part of it. And I think we already submitted document, the net profit from that or something like 45,000. ... Q: But so out of that 600,000, the profit was 45,000?

A: 45,000.

Q: The rest of that is eaten up in costs, huh?

A: The rest of them—yeah, cost. –25– Q: What is—

A: Overhead, cost and everything else.

Q: What is usually the profit margin that you’re—

A: 15 percent usually.

Q: 15 percent. And my math isn’t that great and that’s why I became a lawyer. What is the margin—what is 45,000 on 600,000 in revenue?

A: That after reducing—oh, the 15,000, that’s 90,000. That’s a net profit less overhead expenses.

2) Analysis

Snowhite first contends that the trial court abused its discretion in admitting

Kapadia’s testimony on Snowhite’s profits over Snowhite’s motion to exclude

evidence and according objection(s). Snowhite specifically complains that Innvision

did not disclose or supplement its discovery responses with any amount or method

of calculating economic damages.12 Relying on Heat Shrink Innovations, LLC v.

Medical Extrusion Techs.—Tex., Inc., Snowhite asserts that Innvision’s failure to

timely disclose on the issue of damages resulted in unfair surprise or prejudice. No.

02-12-00512-CV, 2014 WL 5307191, at *6 (Tex. App.—Fort Worth Oct. 16, 2014,

pet. denied) (mem. op.); see TEX. R. CIV. P. 193.6(a).13 Snowhite further contends

12 Snowhite’s briefing does not direct us to any specific request for discovery. Rather, Snowhite refers to Texas Rule of Civil Procedure 194.2(d), which specifies that “A party may request disclosure of . . . the amount and any method of calculating economic damages.” TEX. R. CIV. P. 194.2(d) We therefore presume that Snowhite complains Innvision failed to adequately respond to an according request for disclosure. 13 Texas Rule of Civil Procedure 193.6(a) governs exclusion of evidence and exceptions as follows:

–26– that the evidence supporting Innvision’s lost profits was neither legally nor factually

sufficient.

Innvision responds that it timely disclosed its damages, arguing that its

Second Amended Petition filed on May 15, 2015, indicated that Innvision would be

seeking its “lost profits” or Snowhite’s “unjust enrichment” as damages. Innvision

further claims that—during the trial court’s October 22, 2018 hearing on Snowhite’s

Motion To Exclude All Evidence of Damages—it stated its intention to rely on the

“testimony given by Snowhite in this case, a corporate representative,” as a part of

its damage theory.

Heat Shrink involved adjudication of, among other causes of action,

misappropriation of trade secrets. Id. at *1. Pertinent to our discussion, the Heat

Shrink appellants challenged evidence of lost profits, arguing that appellee failed to

timely disclose its damages calculation. Id. at *4 (citing TEX. R. CIV. P. 194.2(d)).

The appellee responded that it disclosed that “its damages model will include

amounts for lost profits” in a fourth supplemental response to request for disclosures.

Id. at *4-5. As in the instant case, the trial court permitted evidence on damages;

(a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. TEX. R. CIV. P. 193.6(a). –27– however, the record in Heat Shrink showed that Bauer, appellee’s operator, “had not

made any calculation of lost profits. When asked what damages Bauer sought against

[appellants], Bauer said, ‘It would be the diminished sales of [a customer].’” Id. at

*5–6. Appellee further “pointed to two separate sections of Bauer’s deposition and

suggested Heat Shrink was responsible for putting the two answers together and

concluding that they formed [appellee]’s damage model.” Id. at *6. Our sister court

held that appellee (i) failed to show why its failure to provide the calculation was not

unfair surprise or prejudice to the appellants and (ii) failed to provide a “single

complete calculation of lost profits.” Id. Our sister court concluded that “any

evidence of lost profits admitted was in error [and] the award of lost profits

predicated on such evidence was likewise in error.” Id.

Unlike the appellant in Heat Shrink, Snowhite appears to claim that its own

corporate representative’s testimony was unfairly surprising or prejudicial when

used as evidence on issue of damages.

In Oscar Luis Lopez v. La Madeleine of Tex., Inc., we held:

We consider this focus on surprise as to the “issues” in a case inaccurate. Although it might be possible that untimely supplemented or amended discovery responses could cause surprise concerning the issues in a case, rule 193.6(a) relates to the discovery of evidence; its principal purpose—and most common application—is to protect a party from surprise concerning the existence of undisclosed evidence— not issues. The rule applies when the existence of evidence was not disclosed in a timely manner, whether or not such evidence related to an issue both parties knew existed in the case. Thus, a party who failed to disclose the existence of an eye-witness to an auto accident cannot argue the absence of surprise or prejudice on the grounds that his party –28– opponent was aware that whether the traffic light was red or green was an issue in the case.

200 S.W.3d 854, 862 (Tex. App.—Dallas 2006, no pet.) (emphasis added).

Here, Innvision’s May 2015 pleading gave notice to Snowhite that it sought

damages, which included lost profits. Kapadia—testifying as Snowhite’s corporate

representative during his deposition—testified to $45,000.00 in actual profit from

the Odessa Project over a year before trial. The record shows that Snowhite secured

the Odessa Project after submitting a bid identical to Innvision’s Odessa bid. Since

misappropriation damages can take the form of the defendant’s actual profits from

the use of the secret, Kapadia testified to a single complete calculation of lost profits

when he testified that Snowhite earned $45,000.00 from the Odessa Project. See Sw.

Energy Prod. Co., 491 S.W.3d at 710–11; ERI Consulting Eng’rs, Inc., 318 S.W.3d

at 878.14

Unlike our hypothetical example of an eye-witness to an auto accident in

Oscar Luis Lopez, the record here shows that Kapadia’s testimony did not unfairly

surprise or prejudice Snowhite; the challenged testimony arises directly from

Snowhite’s corporate representative. See Oscar Luis Lopez, 200 S.W.3d at 862. We

have found no support for the position that a corporate representative’s

uncontroverted testimony about his or her business entity’s profits unfairly

14 Snowhite frames Kapadia’s testimony regarding the $45,000.00 in profit as “speculative,” complaining that Innvision should have submitted “objective evidence” in the form of Snowhite’s profit documents. However, the record shows no objections to speculation as to this testimony, and there is no evidence controverting the testimony of Snowhite’s earning $45,000.00 in profit. –29– prejudiced the business entity. Thus, the trial court did not abuse its discretion in

admitting Kapadia’s testimony.

In viewing the evidence in the light most favorable to the fact finding,

indulging every reasonable inference that would support it, and disregarding

contrary evidence unless a reasonable factfinder could not, the record contains more

than a scintilla of evidence to support the trial court’s finding that Innvision

sustained lost profits and economic damages. The trial court’s findings on damages

are not so contrary to the overwhelming weight of the evidence as to be clearly

wrong or unjust. The evidence is legally and factually sufficient to support the trial

court’s findings on Innvision’s damages. Accordingly, it was not error for the trial

court to find damages of or to consider evidence of lost profits at trial. We overrule

Snowhite’s third issue.

VII. ISSUE FOUR – WHETHER IT WAS ERROR TO AWARD ATTORNEY’S FEES UNDER TUTSA WHERE THE APPELLEE FAILED TO PROPERLY SEGREGATE ITS FEES, AND THERE IS NO SHOWING OF “MALICE” TO SUPPORT THE “WILLFUL & MALICIOUS MISAPPROPRIATION” ELEMENT OF SUCH AWARD

“A party who prevails in a lawsuit is entitled to recover attorney’s fees only if

permitted by statute or by contract.” Med. City Dall., Ltd. v. Carlisle Corp., 251

S.W.3d 55, 58 (Tex. 2008) (citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d

299, 310 (Tex. 2006)). Under TUTSA, the court may award reasonable attorney’s

fees to the prevailing party if, among other bases, willful and malicious

misappropriation exists. CIV. PRAC. & REM. § 134A.005(3). “Willful and malicious“

–30– misappropriation is defined as “intentional misappropriation resulting from the

conscious disregard of the rights of the owner of the trade secret.” CIV. PRAC. &

REM. § 134A.002(7).15 A trial court’s decision about the reasonableness of an

attorney’s fee award is reviewed under an abuse of discretion standard. Bocquet v.

Herring, 972 S.W.2d 19, 21 (Tex. 1998). The reasonableness of attorney’s fees is a

fact question, and the appellate court may not substitute its judgment for the

factfinder’s. Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009).

1) Whether Snowhite’s Actions Were Willful and Malicious

The trial court found that Snowhite’s “misappropriation was willful and

malicious as [] defined in the TUTSA.” Snowhite contends that Innvision presented

no evidence regarding Snowhite’s subjective intent in obtaining Innvision’s Odessa

Project information. Snowhite further contends that there is no evidence that it acted

with ill will or “malice” toward Innvision.

The record shows (i) Snowhite—specifically Aboona—encouraged former

Innvision employees to breach their confidentiality agreements with Innvision; (ii)

Snowhite encouraged these former Innvision employees to participate in covert,

comprehensive copying of Innvision documents, including at least one Innvision

computer; (iii) Snowhite copied and accepted Innvision documents from current and

15 Snowhite cites multiple cases from other states that interpret the Uniform Trade Secrets Act with respect to the terms willful and malicious. Although those cases may hold persuasive value, we note that in civil matters, “this Court is bound by decisions of the United States Supreme Court, the Texas Supreme Court, and prior decisions of this Court.” Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 284 (Tex. App.—Dallas 2012, no pet.). –31– former Innvision employees; (iv) Snowhite reviewed the collected documents, with

Kapadia corresponding with Aboona that information from the Innvision documents

was “very helpful”; and (v) Snowhite used Innvision’s trade secrets by submitting

an identical bid for the Odessa Project. Furthermore, there is evidence that Snowhite

recognized internally that its actions were in conscious disregard of Innvision’s

rights in its documents and corresponding trade secrets. In addition to Aboona’s

acknowledgement in correspondence of Gathright’s “fear” in copying Snowhite

documents, the record contains evidence that Kevin Barbarise stated in emails to

Aboona and another Snowhite employee that he sought to “steal business from

Innvision.” The record also includes correspondence from Kapadia in which he

states that he hopes to obtain more information from the copied Innvision

documents—for other projects beyond the Odessa Project.

The record reveals that Snowhite’s misappropriation of Innvision’s trade

secret was intentional and resulted from the conscious disregard of Innvision’s

rights. Viewing the evidence in the light most favorable to the fact finding, indulging

every reasonable inference that would support it, and disregarding contrary evidence

unless a reasonable factfinder could not, the record contains more than a scintilla of

evidence to support the trial court’s finding that Snowhite’s misappropriation of

Innvision’s trade secret was willful and malicious. We conclude the evidence was

–32– legally sufficient to support the trial court’s finding that Snowhite’s

“misappropriation was willful and malicious” against Innvision.16

2) Whether Attorney’s Fees Awarded Were Properly Segregated and Reasonable

Snowhite next contends that Innvision failed to segregate its attorney’s fees

and that the amount of attorney’s fees awarded were unreasonable. The trial court

determined that Innvision was entitled to $133,891.60 as reasonable and necessary

attorney’s fees incurred through trial “attributable to the work performed by

Plaintiff’s Counsel on either tasks related to the TUTSA claim, or tasks that were

inextricably intertwined with the TUTSA claims, and which, therefore, cannot be

segregated therefrom.”

Snowhite relies on our holding in Regions Bank v. Bay to argue that Innvision

failed to segregate its attorney’s fees. No. 05-12-00531-CV, 2013 WL 5299174, at

*3 (Tex. App.—Dallas Sept. 18, 2013, no pet.) (mem. op.). In Regions Bank we held

Where, as here, a party seeks attorney’s fees in a case where some claims permit the recovery of fees and others do not, the party must segregate and exclude the fees for services related to the claims for which fees are not recoverable unless “the discrete legal services advance[d] both [the] recoverable claim and the unrecoverable claim.”

16 Snowhite frames this issue as a no evidence point. Considering all the evidence in the record supporting and contradicting the trial court’s judgment, we conclude that a rational factfinder could have found that Snowhite’s “misappropriation was willful and malicious” against Innvision. On this record, the trial court’s finding is not so against the great weight and preponderance as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Out of an abundance of caution, we conclude that factually sufficient evidence supports the finding that Snowhite’s misappropriation was willful and malicious, as well. –33– Id. (internal citations omitted). Snowhite argues that Innvision’s counsel “made no

serious attempt to segregate his legal fees.” We have held that a party may segregate

attorney’s fees by percentage instead of by an entry-by-entry account. See Kelly v.

Isaac, No. 05-19-00813-CV, 2020 WL 4746589, at *8-9 (Tex. App.—Dallas Aug.

17, 2020, pet. filed) (mem. op.). “[I]t is sufficient to submit to the fact-finder

testimony from a party’s attorney concerning the percentage of hours that related

solely to a claim for which fees are not recoverable. RM Crowe Prop. Servs. Co.,

L.P. v. Strategic Energy, L.L.C., 348 S.W.3d 444, 453 (Tex. App.—Dallas 2011, no

pet.) (citing Chapa, 212 S.W.3d at 314).

Here, the record shows that Innvision submitted its attorney’s fees by

declaration of William E. Hammel with attached fee statements.17 Hammel’s

declaration described the total amount of attorney’s fees; provided the billing rates

for himself, associates, and staff; declared that he reviewed the billing; and described

the manner in which he segregated the attorney’s fees that were recoverable under

TUTSA as follows:

Of the total amount of fees incurred in the amount of $156,343, it is my opinion that eighty-five percent (85%) of that amount was incurred pursuing the claims against Snowhite for which attorney’s fees are recoverable. This is so because much of the legal work performed on behalf of Innvision necessarily overlapped and intertwined.

17 The parties agreed at trial to submit their respective attorney fee applications by affidavit. –34– Thus, in accordance with RM Crowe Property and Kelly, Innvision segregated its

attorney’s fees by percentage. See id.; Kelly, 2020 WL 4746589, at *8–9.

“Sufficient evidence to support an award of attorney’s fees includes, at a

minimum, the following evidence: (1) the particular services performed, (2) who

performed those services, (3) approximately when the services were performed, (4)

the reasonable amount of time required to perform the services, and (5) the

reasonable hourly rate for each person performing the services.” KBIDC

Investments, LLC v. Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at

*21 (Tex. App.—Dallas Oct. 9, 2020, no pet. h.) (citing Rohrmoos Venture v. UTSW

DVA Healthcare, LLP, 578 S.W.3d 469, 502 (Tex. 2019)). The fee statements

attached to Hammel’s declaration comply with each of these five requirements and

otherwise detail the work performed. See id.

Although Snowhite claims Innvision’s 85% segregation of attorney’s fees is

insufficient, Snowhite refers to no authority or controverting evidence in the

record.18 See Rohrmoos Venture, 578 S.W.3d at 501 (“if a fee opponent seeks a

reduction, it bears the burden of providing specific evidence to overcome the

presumptive reasonableness of the base lodestar figure”). “Testimony from a party’s

attorney about a party’s attorneys’ fees is taken as true as a matter of law if the

testimony ‘is not contradicted by any other witness and is clear, positive, direct, and

18 We note that Snowhite questioned Innvision’s attorney’s fees entries in a post-trial motion and its appellate briefing. Nevertheless, the record does not show that Snowhite controverted those fees with evidence. –35– free from contradiction.’” In re A.B.P., 291 S.W.3d 91, 98 (Tex. App.—Dallas 2009,

no pet.) (quoting Blockbuster, Inc. v. C-Span Entm’t, Inc., 276 S.W.3d 482, 490

(Tex. App.—Dallas 2008, pet. granted)). Here, the record of Innvision’s attorney’s

fees is clear, positive, direct, and free from contradiction. See id. We conclude that

Innvision adequately segregated its recoverable attorney’s fees.

In viewing the evidence in the light most favorable to the fact finding,

indulging every reasonable inference that would support it, and disregarding

contrary evidence unless a reasonable factfinder could not, the record contains more

than a scintilla of evidence to support the trial court’s findings on Innvision’s

attorney’s fees. Furthermore, after weighing all the evidence in the record, we can

not conclude that the trial court’s judgment on Innvision’s attorney’s fees is

manifestly unjust, shocks the conscience, or clearly demonstrates bias. Coupled with

our conclusion that legally sufficient evidence supports the trial court’s finding that

Snowhite’s misappropriation was willful and malicious, we conclude that the

evidentiary record is both legally and factually sufficient to support the trial court’s

award of attorney’s fees to Innvision under TUTSA. See CIV. PRAC. & REM. §

134A.005(3). We further conclude the trial court’s determination and award of

Innvision’s attorney’s fees in the amount of $133,891.60 was neither arbitrary nor

unreasonable as this amount is approximately 85% of Innvision’s total attorney’s

fees. The trial court did not abuse its discretion in awarding Innvision’s attorney’s

–36– fees, and it was not error for the trial court to award Innvision’s attorney’s fees under

TUTSA. We overrule Snowhite’s fourth issue.

VIII. CONCLUSION Because we overrule all four of Snowhite’s issues against it, we affirm the

judgment of the trial court.

/Bill Pedersen, III// 181447f.p05 BILL PEDERSEN, III JUSTICE

–37– Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SNOWHITE TEXTILE AND On Appeal from the 193rd Judicial FURNISHINGS, INC., Appellant District Court, Dallas County, Texas Trial Court Cause No. DC-14-11252. No. 05-18-01447-CV V. Opinion delivered by Justice Pedersen, III. Justices Osborne and INNVISION HOSPITALITY, INC., Partida-Kipness participating. Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellee INNVISION HOSPITALITY, INC. recover its costs of this appeal from appellant SNOWHITE TEXTILE AND FURNISHINGS, INC.

Judgment entered this 14th day of December, 2020.

–38–