hunter-buildings-manufacturing-lp-hunter-building-llc-and-hunter ( 2014 )

Reversed and Rendered in Part, Affirmed in Part, and Opinion filed March
27, 2014.
In The
Fourteenth Court of Appeals
NO. 14-12-00246-CV
HUNTER BUILDINGS & MANUFACTURING, L.P., HUNTER
BUILDINGS, L.L.C., HUNTER BUILDINGS INTERNATIONAL, L.L.C.,
BBG GROUP, L.L.C., MILO NICKEL, AND THOMAS MICHAEL
LEBLANC, Appellants
V.
MBI GLOBAL, L.L.C., Appellee
On Appeal from the 215th District Court
Harris County, Texas
Trial Court Cause No. 2008-50193
OPINION
The primary issue in this case is the sufficiency of the evidence to support a
finding that the corporate appellants’ misappropriation of trade secrets proximately
caused appellee/plaintiff to sustain lost-profits damages in the past. The plaintiff
company sued two of its former officers and various enterprises related to the
officers’ current employment. The jury made liability and damage findings as to
claims for breach of fiduciary duty and misappropriation of trade secrets. But, the
jury found that each former officer’s percentage of responsibility was zero.
Though the appellants moved the trial court to disregard all jury findings adverse
to them, the plaintiff sought judgment on the jury’s verdict. The trial court
rendered a money judgment on the verdict, holding the former officers and the
enterprises jointly and severally liable for lost profits, the only damages the jury
found. On appeal, we conclude that the only damage finding upon which a money
judgment may be based is a finding of lost-profits damages proximately caused by
the corporate appellants’ misappropriation of the plaintiff’s trade secrets. Because
we conclude that the evidence is legally insufficient to support a causation finding,
we reverse the trial court’s judgment and render judgment that the plaintiff take
nothing against the appellants.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the late 1990s, Mark Massey and Sam Lavergne worked at the same
company with Fred Gossen. In 1999, after that company ceased operating, Gossen
formed MB Industries, L.L.C. (hereinafter, “Industries”), and Massey and
Lavergne formed appellant/defendant Hunter Buildings & Manufacturing, L.P.
(hereinafter, “Hunter Buildings”), whose general partner is appellant/defendant
Hunter Buildings, L.L.C. (“Hunter L.L.C.”). Both Industries and Hunter
Buildings manufactured and sold blast-resistant buildings.
Appellant/defendant Milo Nickel, a lawyer, started working for Industries in
2006. Appellant/defendant Michael LeBlanc started working for Industries in
2007. The following year, in April 2008, appellee/plaintiff MBI Global, L.L.C.
(hereinafter, “Global”) was formed as a sister company of Industries. Nickel was
2
the first President of Global and a director of Global’s parent company. Leblanc
worked as the Vice President of the newly formed Global. LeBlanc helped
establish Global’s organizational structure, assisted in the hiring of important
personnel, and worked closely with Nickel to direct the company’s marketing and
manufacturing operations. Nickel and LeBlanc each signed a “Non-Competition
and Trade Secrets Agreement” at the beginning of their employment with
Industries.
LeBlanc resigned from his position at Global on July 26, 2009. A few
weeks later, on August 20, 2009, Nickel resigned from his position as President of
Global. Nonetheless, Nickel was still a director of Global’s parent company, and
he continued to work for Global as a consultant, assisting in the obtaining of a $7
million contract.1 On July 30, 2009, appellant/defendant BBG Group, L.L.C.
(hereinafter, “BBG Group”), was formed with Nickel and LeBlanc as the two
members, each owning a fifty-percent interest. Two days later, on August 1, 2009,
BBG Group and Hunter Buildings entered into a Joint Venture Agreement
regarding the operation of a limited liability company to be formed in the future.
That company, appellant/defendant Hunter Buildings International, L.L.C.
(hereinafter, “Hunter International”) was formed on September 17, 2009, with
Hunter Buildings and BBG Group as the two members, each owning a fifty-
percent interest.
Thus, Nickel and LeBlanc formed BBG Group, and through Hunter
International, BBG Group went into business with Hunter Buildings to compete
against Global. Nickel and LeBlanc did not tell Global that they were leaving to
compete against Global, and they did not tell Global or Gossen about the formation
1
This project was booked to Industries rather than Global, and Global testified that it was
considered an Industries project rather than a Global project.
3
of BBG Group or Hunter International. Even after Nickel resigned his position as
President of Global, he continued working for Global for some time on a
consulting basis. During this time period, Nickel participated in conversations
with people at Global regarding Global’s business projects. Global asserts that
Nickel passed this information on to LeBlanc and the Hunter entities. Global
alleges, and we presume for the sake of argument, that all of the following were
Global’s trade secrets: (1) Global’s blast-resistant building drawings, testing data,
and FEBR2 certification information, (2) Global’s use of ballistic plate in its
building design and information regarding “A/C brackets,” (3) Global’s business
proposals, including cost-and-pricing information, and (4) Global’s customer lists
and information regarding future developments and markets, including customer
contacts and relationships (hereinafter, collectively, the “Trade Secrets”). Global
alleged that Nickel, LeBlanc, BBG Group, Hunter International, Hunter L.L.C.,
and Hunter Buildings (the foregoing companies sometimes collectively referred to
hereinafter as the “Corporate Defendants”) misappropriated the Trade Secrets.
The record reflects that there is a history of “bad blood” between Gossen and
Massey. In August 2008, several Hunter entities filed suit in the case under review
against Industries, Gossen, and Massey’s ex-wife. In March 2010, Global
intervened, and Global and Industries asserted claims regarding the departure of
Nickel and LeBlanc. Eventually, the Hunter entities nonsuited their claims for
relief. By the time the case proceeded to a jury trial, Global was realigned as the
only plaintiff asserting various claims against Nickel, LeBlanc, Massey, Lavergne,
the Corporate Defendants, and Hunter Leasing, L.P. In a partial summary-
judgment order, the trial court ruled that the non-competition provisions of the
2
“FEBR” is an industry acronym for “Forced Entry Ballistic Resistant.” Building designs may
be “FEBR certified,” and thus approved by the United States Department of State for
construction and use overseas.
4
agreements Nickel and LeBlanc signed when they started working at Industries are
invalid and unenforceable. The trial court did not set aside this ruling, and no party
has challenged this ruling on appeal.
After a fourteen-day trial, the case was submitted to the jury. In response to
the questions in the charge, the jury found in pertinent part, as follows: (1) Nickel
and LeBlanc each failed to comply with the fiduciary duty he owed to Global; (2)
the Corporate Defendants knowingly participated in the breaches of fiduciary duty
by Nickel and by LeBlanc; (3) Nickel, LeBlanc, and each of the Corporate
Defendants misappropriated Global’s trade secrets; (4) $4.4 million in past-lost-
profits damages, if paid now in cash, would fairly and reasonably compensate
Global for its damages, if any, that were proximately caused by the conduct found
by the jury to be either a breach of fiduciary duty or misappropriation of Global’s
trade secrets;3 (5) a preponderance of the evidence did not prove that any of the
defendants were part of a conspiracy regarding the breach of fiduciary duty by
either Nickel or LeBlanc or regarding the misappropriation of Global’s trade
secrets; (6) the percentage of responsibility attributable to Nickel is zero percent;
and (7) the percentage of responsibility attributable to LeBlanc is zero percent.4
After trial, Global did not challenge any jury finding and sought judgment
on the verdict. Global argued that Nickel and LeBlanc each should be jointly and
severally liable with the Corporate Defendants, despite the jury’s finding that each
had a percentage of responsibility of zero. Nickel, LeBlanc, and the Corporate
3
This was the only finding by the jury of any damages. The jury answered “0” to questions
regarding profits made by Nickel and LeBlanc, Global’s loss of good will, and Global’s future
lost profits. Global did not challenge these adverse findings in the trial court, and Global has not
appealed the trial court’s judgment. Thus, the only damages at issue in this appeal are Global’s
past lost-profits damages, if any.
4
The jury fixed the following percentages of responsibility for the Corporate Defendants: 17%
for Hunter Buildings, 16% for Hunter, L.L.C., 34% for Hunter International, and 33% for BBG
Group.
5
Defendants moved the trial court to disregard all jury findings adverse to them.
The trial court rendered judgment that Global recover $4.4 million, plus
prejudgment and postjudgment interest, against Nickel, LeBlanc, and the
Corporate Defendants, jointly and severally.
II. ISSUES AND ANALYSIS
Hunter International, Hunter L.L.C., and Hunter Buildings (hereinafter
sometimes collectively, the “Hunter Companies”) have filed one brief, in which
they assert six appellate issues. Nickel, LeBlanc, and BBG Group have filed their
own brief, in which they assert three appellate issues. In each brief, the appellants
filing the brief adopt by reference the other appellants’ brief, as allowed by the
Texas Rules of Appellate Procedure.5 See Tex. R. App. P. 9.7 (stating that “[a]ny
party may join in or adopt by reference all or any part of a brief . . . filed in an
appellate court by another party in the same case”). We address each of the
arguments necessary for the final disposition of this appeal. See Tex. R. App. P.
47.1.
A. Did the trial court err in impliedly disregarding the jury’s findings that
Nickel and LeBlanc each had a percentage of responsibility of zero?
By rendering judgment against Nickel and LeBlanc jointly and severally
with the Corporate Defendants, the trial court impliedly disregarded the jury’s
findings in response to Question 12 that Nickel and LeBlanc each had a percentage
of responsibility of zero regarding his causing or contributing to cause the harm to
Global.6 No party moved the trial court to disregard the jury’s response to
5
Nickel, LeBlanc, and BBG Group adopted by reference the Hunter Companies’ brief in its
entirety. The Hunter Companies adopt by reference all issues and arguments in the other
appellants’ brief to the extent these issues and arguments also apply to the Hunter Companies.
6
Though Global sought equitable relief in the trial court, the trial court did not award any
equitable relief in its judgment, and Global has not appealed the trial court’s judgment. Thus,
6
Question 12; therefore, the trial court erred in disregarding the zero-responsibility
findings unless these findings were immaterial. See Hall v. Hubco, Inc., 292
S.W.3d 22, 34 (Tex. App.—Houston [14th Dist.] 2006, pet. denied); Fire Ins.
Exch. v. Sullivan, 192 S.W.3d 99, 105 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). A jury question is immaterial when it should not have been submitted, or
when it was properly submitted but has been rendered immaterial by other
findings. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex.
1994). A jury question is immaterial when its answer can be found elsewhere in
the verdict or when its answer cannot alter the effect of the verdict. See City of
Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex. 1995). A question which
calls for a finding beyond the province of the jury, such as a question of law, may
be deemed immaterial. See Spencer, 876 S.W.2d at 157.
Nickel and LeBlanc argue on appeal that the trial court erred in rendering
judgment against them because of the jury’s material findings that Nickel and
LeBlanc each had a percentage of responsibility of zero. The Corporate
Defendants assert that they may not be held liable for breach of fiduciary duty
because, under the knowing-participation findings, the Corporate Defendants are
liable only to the extent that Nickel and LeBlanc have liability for breach of
fiduciary duty and Nickel and LeBlanc have no such liability based on the jury’s
zero-responsibility findings.7 The Corporate Defendants, Nickel, and LeBlanc (the
foregoing parties sometimes collectively referred to hereinafter as the
“Defendants”) note that the jury failed to find any civil conspiracy.
Question 12 does not call for a finding beyond the province of the jury, such
there is no issue in this appeal as to any equitable remedies.
7
The Hunter Companies make this assertion through their adoption by reference of all issues and
arguments in the other appellants’ brief to the extent these issues and arguments also apply to the
Hunter Companies.
7
as a question of law. See Spencer, 876 S.W.2d at 157. This court has concluded
that Chapter 33 of the Texas Civil Practice and Remedies Code, entitled
“Proportionate Responsibility,” applies to claims for misappropriation of trade
secrets, so the trial court properly submitted Question 12 to the jury. See Tex. Civ.
Prac. & Rem. Code § 33.003 (West 2014); Bishop v. Miller, 412 S.W.3d 758, 780–
81 (Tex. App.—Houston [14th Dist.] 2013, no pet.). We conclude that Question
12 is not immaterial on the basis that it should not have been submitted.8 See Fire
Ins. Exch., 192 S.W.3d at 105–06.
The jury found that Nickel and LeBlanc failed to comply with their
respective fiduciary duty to Global and that the Corporate Defendants knowingly
participated in these breaches of fiduciary duty. Global argues that these findings
made the Defendants jointly and severally liable for the damages found by the jury,
regardless of whether these damages are based on breach of fiduciary duty or on
the Corporate Defendants’ misappropriation of trade secrets. According to Global,
the common-law joint and several liability resulting from these findings makes the
zero-responsibility findings immaterial. Under Global’s argument, the effect of the
knowing-participation findings would be similar to the effect of a conspiracy
finding. See Energy Maintenance Services Group I v. Sandt, 401 S.W.3d 204, 220
(Tex. App.—Houston [14th Dist.] 2012, pet. denied) (stating that each conspirator
is responsible for all acts done by any of the conspirators in furtherance of the
conspiracy and that a finding of civil conspiracy imposes joint and several liability
on all conspirators for actual damages resulting from acts in furtherance of the
conspiracy).
8
When the jury charge was submitted, the trial court did not know whether the jury would make
the breach-of-fiduciary-duty and knowing-participation findings that, according to Global,
trigger the Defendants’ joint and several liability for the damages found by the jury.
8
Texas courts have indicated that, under Texas common law, if a third party
knowingly participates in a defendant’s breach of a fiduciary duty owed to a
plaintiff, the third party is jointly liable with the defendant for damages to the
plaintiff proximately caused by this breach of fiduciary duty, and the plaintiff has
the same equitable remedies against the defendant and the third party based upon
this breach. See Kinzbach v. Corbett-Wallace Corp., 160 S.W.2d 509, 512–14
(Tex. 1942); Kline v. O’Quinn, 874 S.W.2d 776, 786–87 (Tex. App.—Houston
[14th Dist.] 1994, writ denied). The parties have not cited, and research has not
revealed, any Texas case in which the court addresses (1) the distinction between
civil conspiracy and knowing participation in a breach of fiduciary duty, or (2) the
issue of whether a knowing-participation finding, by itself, makes the party
breaching his fiduciary duty liable for damages caused by the party who knowingly
participated in the breach of fiduciary duty.9 See Halberstam v. Welch, 705 F.2d
472, 477–78 (D.C. Cir. 1983) (addressing, under District of Columbia law, the
distinction between civil conspiracy and aiding and abetting, which is similar to
knowing participation, and concluding that an aider or abettor is liable for damages
caused by the main perpetrator, but absent a finding of conspiracy, the main
perpetrator is not liable for damages caused by the aider or abettor). For the
reasons discussed below, presuming for the sake of argument that the jury’s
breach-of-fiduciary-duty findings and its knowing-participation findings make the
9
Global cites the Supreme Court of Texas’s opinion in ERI Consulting Engineers, Inc. v.
Swinnea. See 318 S.W.3d 867, 881–82 (Tex. 2010). In that case, after a bench trial, the trial
court found that a civil conspiracy existed between Swinnea and Brady Environmental. See id.
at 872, 881. The trial court apparently also found that Brady Environmental knowingly
participated in Swinnea’s breach of fiduciary duty. See id. at 881. But, the high court did not
discuss any legal principles regarding knowing participation in a breach of fiduciary duty or the
distinction between that doctrine and civil conspiracy. See id. at 881–82. Instead, the Swinnea
court addressed whether Brady Environmental was subject to liability for actual damages,
punitive damages, and equitable forfeiture of contractual consideration based upon Brady
Environmental’s conspiracy with Swinnea. See id.
9
Defendants jointly and severally liable the damages found by the jury, including
the damages based on the Corporate Defendants’ misappropriation of trade secrets,
the zero-responsibility findings are not immaterial.
In response to Questions 1 and 2, the jury found that Nickel and LeBlanc
failed to comply with their respective fiduciary duty to Global. Neither question
required the jury to find that the failure to comply with the respective fiduciary
duty caused any injury or damages to Global. In response to Questions 8 and 9, the
jury found that the Corporate Defendants knowingly participated in the breaches of
fiduciary duty by Nickel and by LeBlanc. No question in the charge asked the jury
to determine whether this knowing participation caused any damages to Global. In
answer to Question 7, the jury found that $4.4 million in damages for past lost
profits would fairly and reasonably compensate Global for its damages that were
proximately caused either by the breaches of fiduciary duty found in response to
Questions 1 or 2 or by the misappropriation of trade secrets found in response to
Questions 4 or 5. In answering Question 7, the jury did not have to find that the
damages were proximately caused by the failure of Nickel or LeBlanc to comply
with their respective fiduciary duty to Global. In response to Question 12, the jury
found that Nickel and LeBlanc each had a percentage of responsibility of zero
regarding the causing or contributing to cause the harm to Global. As part of this
finding, the jury necessarily found that the breaches of fiduciary duty by Nickel
and LeBlanc did not cause or contribute to the lost-profits damages found by the
jury in response to Question 7. Thus, the lost-profits damages found in response to
Question 7 (the only damages found by the jury) were not based upon the conduct
found in response to Question 1 (breach of fiduciary duty by Nickel), Question 2
(breach of fiduciary duty by LeBlanc), or Question 4 (misappropriation of trade
secrets by Nickel and LeBlanc), and the only conduct that the jury found caused
10
the damages in question was the misappropriation of trade secrets by the Corporate
Defendants found in response to Question 5.
Presuming, without deciding, that the jury’s breach-of-fiduciary-duty
findings and its knowing-participation findings make the Defendants jointly and
severally liable for the damages found by the jury and for the breaches of fiduciary
duty by Nickel and LeBlanc, the zero-responsibility findings still show that the
only damage finding upon which a money judgment may be based is a finding of
past-lost-profits damages proximately caused by the Corporate Defendants’
misappropriation of Global’s trade secrets. Thus, even under this presumption, the
zero-responsibility findings altered the effect of the verdict, cannot be found
elsewhere in the verdict, and were not rendered immaterial by any other jury
finding.10 See City of Brownsville, 897 S.W.2d at 752; Fire Ins. Exch., 192 S.W.3d
at 105–06.
The question regarding the percentage of responsibility attributable to Nickel
and LeBlanc should have been submitted and was not rendered immaterial by other
jury findings. We conclude that this question and the jury’s zero-responsibility
findings were material, and that the trial court erred by impliedly disregarding
these findings in rendering its judgment. See Fire Ins. Exch., 192 S.W.3d at 105–
06.
10
If, as the Defendants assert, the knowing-participation findings only resulted in the Corporate
Defendants having the same liability as Nickel and LeBlanc based upon the individuals’
breaches of fiduciary duty and if these findings did not make Nickel and LeBlanc liable for the
Corporate Defendants’ misappropriation of trade secrets, then Nickel and LeBlanc would have
no possible liability for money damages under the jury’s findings, and the jury’s finding in
response to Question 7 would be the only basis for a money judgment against the Corporate
Defendants.
11
B. Is the evidence legally sufficient to support a finding that the Corporate
Defendants’ misappropriation of Global’s trade secrets proximately
caused Global to sustain lost profits in the past?
In light of the zero-responsibility findings, the jury’s damage finding was
that $4.4 million, if paid then in cash, would fairly and reasonably compensate
Global for its damages, if any, that were proximately caused11 by the Corporate
Defendants’ conduct in misappropriating Global’s trade secrets. We presume,
without deciding, that the Trade Secrets were trade secrets and that the Corporate
Defendants misappropriated Global’s trade secrets. We now address whether the
trial evidence is legally sufficient to support a finding that the Corporate
Defendants’ misappropriation of trade secrets proximately caused Global to sustain
lost-profits damages in the past.12
Recovery for lost profits does not require that the loss be susceptible of exact
calculation. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992).
The injured parties, however, must do more than show that they suffered some lost
profits. Id. They must demonstrate the amount of the loss with reasonable
certainty, by competent evidence. Id. What constitutes reasonably certain
evidence of lost profits is a fact-intensive determination. Id. At a minimum,
opinions or estimates of lost profits must be based on objective facts, figures, or
data from which the amount of lost profits may be ascertained. Id. The bare
11
In the jury charge, the trial court defined “proximate cause” to mean “a cause that was a
substantial factor in bringing about an event, and without which cause such event would not have
occurred. In order to be a proximate cause, the act or omission complained of must be such that
a person using the degree of care required of him would have foreseen that the event, or some
similar event, might reasonably result therefrom.” The trial court instructed the jury that there
may be more than one proximate cause of an event.
12
On appeal, the Hunter Companies assert that the evidence is legally insufficient to support a
finding that any alleged misappropriation of trade secrets caused damages to Global. Nickel,
LeBlanc, and BBG Group have adopted by reference the Hunter Companies’ brief in its entirety.
12
assertion that contracts were lost does not demonstrate a reasonably certain,
objective determination of lost profits.13 Id. at 85. To support the recovery of lost
profits, the record must contain evidence sustaining one complete calculation of
lost profits. Id. Lost profits are damages for the loss of net income to a business
and, broadly speaking, reflect income from lost business activity, less expenses
that would have been attributable to that activity. Miga v. Jensen, 96 S.W.3d 207,
213 (Tex. 2002). The calculation of lost-profits damages must be based on net
profits, not gross revenue or gross profits.14 See Heine, 835 S.W.2d at 83 n.l;
Kellman v. Workstation Integrations, Inc., 332 S.W.3d 679, 684 (Tex. App.—
Houston [14th Dist.] 2010, no pet.).
To recover lost profits, the plaintiff must produce evidence from which the
jury reasonably may infer that the lost-profits damages for which recovery is
sought have resulted from the conduct of the defendant. See Haynes & Boone v.
Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex. 1995), abrogated on other
grounds by, Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45–46 (Tex. 2007);
Houston Mercantile Exch. Corp. v. Dailey Petroleum Corp., 930 S.W.2d 242, 248
(Tex. App.—Houston [14th Dist.] 1996, no writ). This requirement is met when a
jury is presented with pleading and proof that establish a direct causal link between
the lost-profits damages, the actions of the defendant, and the injury suffered. See
Bowser Bouldin, Ltd., 896 S.W.2d at 181; Houston Mercantile Exch. Corp., 930
S.W.2d at 248.
At trial, Global called two damages experts to testify. The first expert,
13
The Defendants argue that the proof of lost profits was speculative and not reasonably certain
because Global’s business was new and unestablished. See Texas Instruments, Inc. v. Teletron
Energy Management, Inc., 877 S.W.2d 276, 279–90 (Tex. 1994). We do not address this
argument.
14
The Defendants also argue that the evidence of lost profits is legally insufficient because it was
based on a calculation of gross profits, not net profits. We do not address this argument.
13
James Hill, testified regarding his expert opinion that, as of June 30, 2009,
Global’s goodwill was valued at $32 million. Hill did not testify regarding loss of
goodwill or lost profits. He also stated that he was not testifying about causation
or damages.
Global called a second damages expert, Jeffrey Spilker, who presented
testimony regarding various matters, including the following:
 Spilker used a “before and after model,” in which he made
projections as to what would have happened “before the alleged
acts occurred” and compared those projections to what actually
happened.
 The point in time at which Spilker conducted this “before and
after” analysis was the summer of 2009. Spilker used this time
frame because he made a reasonable assumption that Nickel
and LeBlanc left Global in the summer of 2009.
 In 2007, Nickel made an internal estimate that revenues for
Global’s business in 2008 would be $2,500,000. The actual
2008 revenues were $6.9 million.
 In 2008, Nickel made an internal forecast that revenues for
Global would be $25 million in 2009.
 Spilker also considered an internal Global document from May
2009, in which close to $200 million in sales opportunities were
identified (“2009 Pipeline Document”). After analyzing these
opportunities and other information, Spilker concluded that
“but for . . . the asserted events” Global’s 2009 revenues for the
market in question would have been in the $25 million range.15
 Spilker calculated Global’s lost profits for 2009, 2010, and
2011. Spilker indicated that, but for the “asserted acts of the
15
Spilker defined the relevant market as the market for contracts with governmental entities for
FEBR buildings sold internationally and constructed overseas. At times during his testimony,
Spilker referred to this market as the “market that was taken.” It is not clear what Spilker meant
by this phrase. He stated that his defined market “was taken by the asserted acts of the
defendant[s].”
14
defendants” Global’s gross sales revenue would have been $20
million in 2009, $25 million in 2010, and $25 million in 2011.
The actual sales that Global had in the market in question were
$3.6 million in 2009, zero in 2010, and zero in 2011.
 Spilker assumed that Global’s sales decreased “because of the
conduct of Mr. Nickel or Mr. Leblanc.” He said he would let
the evidence speak for itself on that matter.
 After subtracting out a percentage representing Global’s “gross
margin,” Global’s total lost profits for the years 2009, 2010,
and 2011 were $26,554,000.
 When asked whether Global should have to show that it
actually bid on the same contracts on which Hunter bid and that
Global would have obtained them, Spilker stated that was not
the process or methodology that he used. Spilker indicated it
was not necessary for Global to prove specific contracts that
were lost to prove lost profits.
 Out of sales opportunities of about $200 million in projects in
the market in question listed on the 2009 Pipeline Document,
Global submitted bids on projects that had a total value of only
approximately $44 million.
 Hunter International did not win any of the projects listed on
the 2009 Pipeline Document.
 Spilker could not tell the jury why Global won or did not win
any of the projects listed on the 2009 Pipeline Document. He
could not say whether the projects were lost because the
company changed its mind, did something different, or because
Nickel and LeBlanc had left Global. Spilker testified that it
would be extremely difficult to tie the lost-profits calculation to
specific contracts that were lost because there was “a disrupted
market after the events,” apparently a reference to the conduct
alleged in Global’s petition.
 One reason why Global’s sales could have been less than
anticipated would be if its prices were not competitive.
Another reason may have been that Global made fewer bids
after Nickel and LeBlanc left. Another reason could be because
of poor management.
15
 Global was in disarray after Nickel and LeBlanc left and part of
the disarray may have been that the Global employees
following this departure had “attention span issues” regarding
proposals for projects.
 Spilker was aware that Nickel and LeBlanc signed covenants
not to compete, but he was not aware when he testified at trial
that the trial court had ruled that these covenants are
unenforceable.16
 Spilker stated repeatedly during his testimony that he was not opining
on causation.
Spilker did not testify as to whether any defendant’s misappropriation or use
of Global’s trade secrets caused Global any damage or any lost profits. Indeed,
Spilker did not opine as to the lost profits caused by any conduct of any defendant.
In fact, throughout his entire testimony Spilker never once uttered the term “trade
secret” or “trade secrets.” Spilker did not testify regarding any calculation of lost
profits caused by any defendant’s alleged misappropriation or use of Global’s trade
secrets. Spilker did indicate in his testimony that, but for the acts of the defendants
alleged in Global’s petition, Global’s gross sales revenue would have been $20
million in 2009, $25 million in 2010, and $25 million in 2011.17 But, as discussed
below, this testimony does not address any lost revenue caused by the Defendants’
alleged misappropriation of Global’s trade secrets.
Significantly, the Defendants’ allegedly actionable conduct, as set forth in
Global’s petition, included competing against Global, soliciting Global’s
16
Spilker also testified regarding an “unjust enrichment” value, which he stated was the benefits,
in the form of revenues, that the defendant obtained from “the asserted acts.” This unjust-
enrichment testimony is based on alleged benefits received by the Defendants, rather than
alleged damages suffered by Global. Thus, this testimony does not address lost-profits damages.
The jury did not find any damages in response to the part of the jury charge to which the unjust-
enrichment testimony corresponds.
17
Spilker referred globally to all conduct of all defendants alleged in Global’s petition.
16
customers, and soliciting Global’s employees. Yet, as reflected in the jury charge,
in a damages claim based on misappropriation of trade secrets, the plaintiff seeks
to recover damages caused by the defendant’s use of the trade secrets. See Glattly
v. Air Starter Components, Inc., 332 S.W.3d 620, 635–36 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied). Thus, if one or more of the Defendants competed
aggressively with Global, or solicited Global’s customers or employees, without
using Global’s trade secrets, then profits lost as a result of such conduct were not
caused by the Defendants’ misappropriation of Global’s trade secrets. See id.;
Rusty’s Weigh Scales and Service, Inc. v. North Texas Scales, Inc., 314 S.W.3d
105, 111 (Tex. App.—El Paso 2010, no pet.) (distinguishing between non-
actionable price competition and actionable misappropriation of trade secrets).
Thus, Spilker’s opinion as to what Global’s gross sales revenue would have been,
but for the acts of the Defendants alleged in Global’s petition, is based in part on
acts that are not actionable under a claim for misappropriation of trade secrets.
Spilker’s opinion does not address what Global’s gross sales revenue would have
been, but for the Defendants’ alleged misappropriation of Global’s trade secrets.
See Rusty’s Weigh Scales and Service, Inc., 314 S.W.3d at 111 (faulting plaintiff’s
proof of lost profits caused by misappropriation of trade secrets, because, among
other things, evidence did not show that the alleged misappropriation of trade
secrets, as opposed to other factors, including plaintiff’s being outbid by the
defendant, caused any lost business).
Spilker’s calculation of Global’s lost profits suffered from the same
deficiency. Spilker testified regarding his calculation of Global’s lost profits for
the years 2009, 2010, and 2011 in a certain market. No written document
describing Spilker’s calculation of lost profits was admitted in evidence. Based on
his trial testimony, it appears that, in calculating Global’s lost profits, Spilker
17
presumed that the Defendants engaged in all of the actionable conduct alleged in
Global’s petition and then calculated lost profits as damages for this allegedly
actionable conduct. Nonetheless, Spilker did not connect his calculation of lost
profits to any defendant’s alleged misappropriation of trade secrets. Spilker’s
testimony does not reflect that he attempted to measure the difference between
Global’s actual profits and the profits, if any, that Global would have made if
Nickel and LeBlanc had left Global when they did, and the Defendants had
competed against Global without any misappropriation of trade secrets.
Spilker testified that, when Nickel and LeBlanc were still working for
Global, in June 2009, Global may have had more than four employees, but it would
not “have been much more than that.” There was evidence that Nickel and
LeBlanc had been successful in obtaining projects for Global. If two proficient
employees leave the employ of a company with a small number of other employees
and start working for a competitor, the former employer may lose profits, even if
the two employees do not misappropriate any of the former employer’s trade
secrets. Nonetheless, Spilker’s calculation of lost profits does not take into
account the extent to which the decrease in Global’s sales might be based on such a
change in personnel, or other factors, rather than the Defendants’ alleged
misappropriation of trade secrets. Spilker repeatedly stated that he was not opining
on causation of damages.
There is a fundamental difficulty with Spilker’ testimony. Though he
repeatedly stated that he was not opining as to causation, he did indicate that, but
for the acts of the Defendants alleged in Global’s petition, Global’s gross sales
revenue in the market in question would have been $16.4 million higher in 2009,
$25 million higher in 2010, and $25 million higher in 2011. But, at best, this
testimony addresses lost gross revenue caused by all of the actionable conduct
18
alleged in Global’s petition, and significant components of this alleged conduct do
not constitute misappropriation of trade secrets. Spilker’s calculation of lost
profits was not tied in any way to the portion, if any, of the lost profits which may
have been caused by the Defendants’ alleged misappropriation of Global’s trade
secrets, but instead extended globally to all of the Defendants’ allegedly actionable
conduct. See Houston Mercantile Exch. Corp., 930 S.W.2d at 248 (noting that
expert’s calculation of lost profits caused by alleged unfair competition improperly
presumed that every jar sold was sold through unfair competition and was not tied
to the jars sold through conduct actionable under the unfair-competition claim).
Under the applicable standard of review and on this record, Spilker’s testimony is
legally insufficient to support a finding that the Corporate Defendants’
misappropriation of trade secrets proximately caused Global to sustain lost-profits
damages in the past. See Bowser Bouldin, Ltd., 896 S.W.2d at 181; Houston
Mercantile Exch. Corp., 930 S.W.2d at 248.
Spilker was the only expert who testified that Global suffered lost profits.18
No other witness testified that the Defendants’ misappropriation of trade secrets
caused Global any lost profits.19 After reviewing all of the trial evidence under the
applicable standard of review, we conclude this evidence is legally insufficient to
support a finding that the Corporate Defendants’ misappropriation of trade secrets
proximately caused Global to sustain lost-profits damages in the past.20 See
18
Daphne Berken, an expert retained by the Defendants, testified that, in her opinion, Global did
not suffer any lost profits.
19
Evidence that one of the Defendants received a benefit from the alleged misappropriation of
Global’s trade secrets is not evidence that this misappropriation proximately caused Global to
sustain lost profits in the past.
20
Even if the issue were whether the evidence is legally sufficient to support a finding that the
Defendants’ misappropriation of trade secrets proximately caused Global to sustain lost profits
damages in the past, we would conclude the evidence is legally insufficient under a substantially
similar analysis.
19
Bowser Bouldin, Ltd., 896 S.W.2d at 181; Houston Mercantile Exch. Corp., 930
S.W.2d at 248.21
III. CONCLUSION
The jury question regarding the percentage of responsibility attributable to
Nickel and LeBlanc and the jury’s zero-responsibility findings were material, and
therefore, the trial court erred by impliedly disregarding these findings in rendering
its judgment. The lost-profits damages found by the jury were not based upon the
conduct found in response to Question 1 (breach of fiduciary duty by Nickel),
Question 2 (breach of fiduciary duty by LeBlanc), or Question 4 (misappropriation
of trade secrets by Nickel and LeBlanc), and the only conduct that the jury found
caused the damages in question was the misappropriation of trade secrets by the
Corporate Defendants found in response to Question 5. But, the trial evidence is
legally insufficient to support a finding that the Corporate Defendants’
misappropriation of trade secrets proximately caused Global to sustain any lost-
profits damages in the past.22 Accordingly, we reverse the portions of the trial
court’s judgment in which the trial court granted relief in favor of Global and
21
Global cites the Supreme Court of Texas’s opinion in ERI Consulting Engineers, Inc. v.
Swinnea. See 318 S.W.3d 867, 879–80 (Tex. 2010). In that case, the trial court awarded ERI
lost profits from a single client and there was direct evidence that the client specifically indicated
it would no longer be working with ERI because of Swinnea’s involvement with one of that
client’s competitors. See id. The high court held that the evidence was legally sufficient to
establish a causal link between Swinnea’s actionable conduct and ERI’s lost profits. See id.
Significantly, the Swinnea court emphasized that Swinnea did not contest his liability for fraud,
breach of contract, or breach of fiduciary duty. See id. at 872, 880, n.11. In addition, the trial
court had held that Swinnea’s involvement with the client’s competitor was improper and legally
actionable, so that Swinnea was liable for any damage caused by his involvement with the
competitor. See id. at 880, n.11. In the case under review, Global does not seek to recover lost
profits from a single client or customer, and we examine the sufficiency of the evidence
regarding causation of damages only as to Global’s claim for lost profits caused by the alleged
misappropriation of trade secrets, which is a subset of the actionable conduct alleged by Global
and referred to by Spilker. We conclude that the Swinnea case is not on point. See id. at 879–80.
22
We need not and do not address the other issues raised by the Defendants.
20
against the Defendants, and we render judgment that Global take nothing against
the Defendants.23 We affirm the remainder of the trial court’s judgment, in which
the trial court ordered that Global take nothing against Hunter Leasing, L.P., Mark
Massey, and Sam Lavergne.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison.
23
In adjudicating the issues in this appeal, we need not and do not address the propriety of the
Defendants’ conduct.
21