Oak Mortgage Group, Inc. Michael H. Nasserfar Michael E. Task And Tycord R. Gosnay v. Ameripro Funding, Inc.

ACCEPTED

03-15-00416-CV

7113395

THIRD COURT OF APPEALS

AUSTIN, TEXAS

9/25/2015 6:30:05 PM

JEFFREY D. KYLE

CLERK

CASE NO. 03-15-00416-CV

________________________________________

FILED IN

IN THE COURT OF APPEALS 3rd COURT OF APPEALS

AUSTIN, TEXAS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS

9/25/2015 6:30:05 PM

________________________________________

JEFFREY D. KYLE

Clerk

OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,

MICHAEL E. TASK, AND TYCORD R. GOSNAY

Appellants

V.

AMERIPRO FUNDING, INC.

Appellee

Appeal from the 345th Judicial District Court

of Travis County Texas

________________________________________

APPELLANTS’ OPENING BRIEF

________________________________________

Wm. Charles Bundren, Esq.

Attorney-in-Charge

State Bar No. 03343200

2591 Dallas Parkway

Suite 300

Frisco, Texas 75034

Telephone:214.808.3555

SEPTEMBER 17, 2015 ORAL ARGUMENT REQUETSED

IDENTITY OF THE PARTIES AND COUNSEL

1. Appellants are Oak Mortgage Group, Inc., Michael H. Nasserfar, Michael

E. Task, and Tycord R. Gosnay, Plaintiffs and Counter Defendants in the district

court.

2. Appellants were represented in the district court and are represented in this

court by Wm. Charles Bundren, Esq. of Frisco, Texas.

Wm. Charles Bundren, Esq.

Texas State Bar No. 03343200

WM.CHARLES BUNDREN & ASSOCIATES LAW GROUP, PLLC

2591 Dallas Parkway

Suite 300

Frisco, Texas 75034

Telephone: 214.808.3555

Facsimile: 972.624.5340

E-mail: Charles@bundrenlaw.net

3. Appellee, and Defendant and Counter-plaintiff in the district court is:

Ameripro Funding, Inc

4. Appellee in this court and Defendant and counter-Plaintiff were represented

in the district court and are represented in this court by;

Susan Burton, Esq.

State Bar No. 03479350

GRAVES DOUGHTERY HEARON & MOODY

P.C.

401 Congress., Suite 2200

Austin, Texas 78701

Telephone: (512) 480-5600

Telecopier: (512) 480-5862 (facsimile)

E-mail: sburton@gdhm.com

1

5. The district court trial Judge who signed the temporary injunction order that

is the subject of this appeal is the Hon. Gisela D Triana Judge Presiding for the

345th Judicial District of Travis County, Texas

2

STATEMENT REGARDING ORAL ARGUMENT

Appellants believe that oral argument will assist the court in reviewing the rules of

applicable law to this important case. Appellants do not believe that this case can be

determined on the basis of the briefs alone. Oral argument will assist the court in

being able to reach the correct result. Appellants request that the court set this matter

for oral argument.

3

TABLE OF CONTENTS

PAGE

IDENTITY OF THE PARTIES AND COUNSEL 1

STATEMENT REGARDING ORAL ARGUMENT 3

TABLE OF CONTENTS 4

INDEX OF AUTHORITIES 7

STATEMENT OF THE CASE 14

ISSUES PRESENTED FOR REVIEW 15

STATEMENT OF FACTS 15

SUMMARY OF THE ARGUMENT 18

STANDARD OF REVIEW 20

ARGUMENT AND AUTHORITIES 21

I. THE TEMPORARY INJUNCTION ORDER IS VOID

BECAUSE IT DOES NOT COMPLY WITH THE

REQUIREMENTS OF RULE 683 AND THERE IS NO

EVIDENCE IN THE RECORD TO SUPPORT

THE ELEMENTS NECESSARY TO OBTAIN

A TEMPORARY INJUNCTION. 21

II. THE DISTRICT COURT ERRED IN APPLYING

THE NON-SOLICITATION PROVISIONS OF THE

CONTRACTS TO REAL ESTATE HOMEBUILDERS

AND CONDOMINIUM DEVELOPERS, REAL ESTATE

SALES AGENTS, AND OTHER REAL ESTATE

PROFESSIONALS INVOLVED IN THE REAL

ESTATE INDUSTRY BECAUSE THEY ARE NOT

"CUSTOMERS" OF AMERIPRO UNDER THE

PLAIN READING OF THE CONTRACTS. 27

4

III..THE DISTRICT COURT ERRED IN CONCLUDING

THAT RESIDENTIAL HOME AND CONDOMINIUM

BUILDER, AND REAL ESTATE SALES AGENT

CONTACT INFORMATION IS A TRADE SECRET BECAUSE

SUCH INFORMATION IS PUBLIC INFORMATION AND

CAN NEVER BE DETERMINED TO BE A TRADE SECRET,

AND IS NOT THE CONFIDENTIAL AND

PROPRIETARY INFORMATION OF AMERIPRO. 33

IV. THE DISTRICT COURT ERRED IN GRANTING THE

TEMPORARY INJUNCTION BECAUSE AMERIPRO FAILED

TO PROVE PROBABLE, IMMINENT AND IRREPARABLE

INJURY CAUSED BY THE PREVIOUS POSSESSION OF

CONFIDENTIAL INFORMATION OF AMERIPRO. 39

V. THE DISTRICT COURT ERRED IN GRANTING THE

TEMPORARY INJUNCTION BECAUSE AMERIPRO

HAS AN ADEQUATE REMEDY AT LAW FOR

CONTRACTUAL DAMAGES AND THERE IS NO

IRREPARABLE INJURY SUFFICIENT TO

JUSTIFY THE TEMPORARY INJUNCTION. 44

VI. THE DISTRICT COURT ABUSED ITS DISCRETION AND

ENTERED AN OVERBROAD TEMPORARY INJUNCTION IN

WHICH THERE IS NO NEXUS BETWEEN THE ENJOINED

CONDUCT AND ANY IMMINENT AND IRREPARABLE

INJURY TO AMERIPRO. 54

PRAYER 58

CERTIFICATE OF SERVICE 58

CERTIFICATE OF WORD COMPLIANCE 59

APPELLANTS’ APPENDIX TAB

TEMPORARY INJUNCTION ORDER 1

NOTICE OF APPEAL 2

5

SUPPLEMENTAL COUNTER PETITION 3

SUPPLEMENTAL COUNTERCLAIM 4

DAMAGES ALLEGED BY AMERIPRO 5

EMPLOYMENT AGREEMENT 6

6

INDEX OF AUTHORITIES

PAGE

CASES

Adust Video v. Nueces County,

996 S.W.2d 245(Tex. App.--Corpus Christi 1999, no pet.) 22

Allan J. Richardson & Assocs v. Andrews,

718 S.W.2d 833 (Tex. App. -- Houston [14th Dist.]

1986, no writ). 37

Big D Props., Inc. v. Foster,

2 S.W.3d 21 (Tex. App.--Fort Worth 1999, no pet.). 22

Butnaru v. Ford,

84 S.W.3d 198 (Tex. 2002) 44,48

Brandon v. Copper,

591 S.W.2d 553 (Tex. App. -- Amarillo 1979, writ ref'd n.r.e.). 36

Byrd Ranch, Inc. v. Interwest Sav. Assoc.,

717 S.W.2d 452 (Tex. App.--Fort Worth 1986, no writ) 22

Canteen Corp. v. Republic of Tex. Props., Inc.,

773 S.W.2d 398 (Tex. App.--Dallas 1989, no writ) 45,50

Cardinal Health Staffing Network, Inc. v. Bowen

106 S.W.3d 230 (Tex. App.-- Houston [1st Dist.] 2003, no pet. 41,50

Computek Computer & Office Sups. v. Walton,

156 S.W.3d 221 (Tex. App. -- Dallas 2005, no pet.). 54

Cornelison v. Offshore Entm't Corp.,

No. 13-02-00452-CV, 2002 Tex. App. LEXIS 8618, at *4-5

(Tex. App.--Corpus Christi Dec. 5, 2002, no pet.) 22

Dallas Gen. Drivers v. Wamix, Inc.

295 S.W. 873 (Tex. 1956) 47

7

Down Time-South Texas, LLC v. Elps,

2014 Tex. App. LEXIS 3047, 2014 WL 1464320, at *7

(Tex. App. -- Corpus Christi-Edinburg, March 20, 2014, no pet.) 43

Downer v Aquamarine Operators, Inc. ,

701 S.W.2d 238 (Tex. 1985) 20

Electronic Data Sys. Corp. v. Powell,

508 S.W.2d 137 (Tex. Civ. App.-Dallas 1974, no writ). 44

EMSL Analytical, Inc. v Younker,

154 S.W.3d 693 (Tex. App. -- Houston [14th Dist.] 2004, no pet.) 42

Fairfield Estates L.P. v Griffin,

986 S.W.2d 719 (Tex. App. -- Eastland 1999 no Pet) 21.

Farmers Ins. Exch. v. Leonard,

125 S.W. 85(Tex. App. -- Austin 2003, pet. denied). 30

Frey v. Decordova Bend Estates Owners Ass'n

647 S.W. 246 (Tex. 1983) 45

Gallagher Headquarters Ranch Dev., Ltd v. City of San Antonio,

303 S.W,3d 700, 702 (Tex. 2010). 30

Gen. Homes, Inc. v. Wingate Civic Assoc.,

616 S.W.2d 351 (Tex. Civ. App.--Houston [14th Dist.] 1981, no writ) 22

Ghidoni v. Stone Oak, Inc.

966 S.W. 2d 573, (Tex. App. -- San Antonio 1998, no writ). 21,55

Guy Carpenter & Co. , Inc. v Provenzale,

334 F.3d 459 (5th Cir. 2003) 40

Harbor Perfusion, Inc. v. Floyd,

45 S.W.3d 713 (Tex. App.—Corpus Christi 2001, no pet.) 20

InterFirst Bank San Felipe, N.A. v. Paz Const. Co.,

715 S.W.2d 640 (Tex. 1986) 22

8

Interox Am. v. PPG Indus.,

736 F.2d 194 (5th Cir. 1984) 35,37

Intercontinental Terminals Co. v. Vopak N. Am., Inc,

354 S.W.3d 887 (Tex. App. -- Houston [1st Dist.] 2011, no pet. ) 23

Fasken v. Darby,

901 S.W.2d 591 (Tex. App. -- El Paso 1995, no writ) 24

In re Union Pac. R.R.,

294 S.W.3d 589 (Tex. 2009) 38

In re Bass,

113 S.W.3d 735(Tex. 2003). 38

Kewanee Oil Co. v. Bicron Corp.,

416 U.S. 470 (1974) 36

Kotz v. Imperial Capital Bank,

319 S.W.3d 54 ( Tex. App. -- San Antonio 2010, no pet.) 24

Lamons Metal Gasket Co. v. Traylor,

361 S.W.2d 211 (Tex. App. -- Houston 1962, writ ref'd n.r.e.) 38

Law v. William Marsh Rice Univ.,

123 S.W.3d 786 (Tex. App. -- Houston [14th Dist.] 2003, pet denied) 21

Levine v. Bayne, Snell & Krause, Ltd.,

40 S.W.3d 92 (Tex. 2001) 30

Letson v. Barnes,

979 S.W.2d 414 (Tex. App. -- Amarillo 1998, pet. denied). 26

Matlock v. Data Processing Security, Inc.,

618 S.W.327(Tex. 1981). 55

Mareno v. Baker Tools, Inc.

808 S.W.2d 208 (Tex. App. -- Houston [1st Dist.] 1991, no writ). 24

9

Markel v. World Flight, Inc.

938 S.W.2d 74 (Tex. App. -- San Antonio 1996, no pet.) 47

Minexa Ariz, Inc. v. Staubach,

667 S.W.2d 563 (Tex. App.-- Dallas 1984, no writ). 46,50

M-I, LLC v. Stelly,

2009 U.S. Dist. LEXIS 65866, 2009 WL 2355498 at *7

(S.D. Tex. July 30, 2009) 41

Monsanto Co. v. Davis,

25 S.W.3d 773 (Tex. App.--Waco 2000, pet. denied) 22

NMTC Corp v. Conarroe,

99 S.W.3d 865 (Tex. App. -- Beaumont 2003, no pet.) 42

Numed, Inc. v. McNutt,

724 S.2d 432 (Tex. App. -- Fort Worth 1987, no writ) 37

Noell v. City of Carrollton

431 S.W. 3d 682 (Tex. App. -- Dallas 2014, pet denied) 49

Priest v. Tex. Animal Health Comm'n,

780 S.W.2d 874 (Tex. App. -- Dallas 1989, no writ) 49

Primary Health Physicians, P.A. v Sarver,

309 S.W.3d 662 (Tex. App. -- Dallas 2012, no pet.) 42

Progressive Cty. Mut. Ins. v. Kelley,

284 S.W.805, (Tex. 2009) 30

Qwest Comms. v. AT&T Corp,

24 S.W3d 334 (Tex. 2000) 22

Reliant Hosp. Partners v. Cornerstone Healthcare Grp. Holdings, Inc.,

374 S.W.3d 488 (Tex. App. -- Dallas 2012, pet. denied) 37

Reach Group, LLC v. Angelina Group,

173 S.W.3d 834 (Tex. App. -- Houston [14 Dist.] 2005, no pet) 45,47

10

Sands v. Estate of Buys,

160 S.W.3d 684 (Tex. App. -- Fort Worth 2005, no pet.) 35,37

SCM Corp. v. Triplett Co.,

399 S.W.2d 583 (Tex. App. -- San Antonio 1996, no writ) 35

State v. Southwestern Bell Tel Co.,

526 S.W.2d 526, (Tex. 1975). 54

State v. Heal,

917 S.W.2d 6 (Tex. 1996) 20

State & Cty. Mut. fire Ins. v. Macias,

83 S.W.3d 304 (Tex. App.-- Corpus Christi, 2002). 30

Stoner v. Thompson,

553 S.W.2d 150

(Tex. Civ. App.--Houston [1st Dist.] 1977, writ ref'd n.r.e.) 22

Sun Oil Co. v. Whitaker,

424 S.W.2d 216 (Tex. 1968) 44

Tenet Health Ltd. v. Zamora,

13 S.W. 3d 464 (Tex. App. -- Corpus Christi 2000, pet. dism'd w.o.j.) 20

Tex. HealthCare Info. Council v. Seton Health Plan, Inc.,

94 S.W.3d 841 (Tex. App.-- Austin 2002, pet. denied) 41

Town of Palm Valley Texas v. Johnson,

87 S.W.3d 110 (Tex. 2001), 49

The Republican Party of Texas v. Dietz,

940 S.W. 2d 86 (Tex. 1997). 21, 55

Tranter, Inc. v. Liss,

2014 Tex. App. LEXIS 3398, 2014 WL 1257278 at *7

(Tex. App. -- Fort Worth, March 27, 2014 no pet.) 43

Tri-State Pipe and Equiq, Inc. v S. Cnty Mut. Ins. Co.,

8 S.W. 394 (Tex. App.-- Texarkana 1999, no pet.) 45

11

Twister B.V. v. Newton Research Partners,

364 S.W.3d 428 (Tex. App. -- Dallas, no pet.) 35

Rimkus Consulting Group, Inc. v. Cammarata,

255 F.R.D. 417 (S.D. Tex. 2008) 40

Sharma v. Vinmar Int'l Ltd.,

231 S.W.3d 405 (Tex. App. -- Houston [14th Dist.] 2007, no pet.) 40

Tom James Co. v Mendrop,

819 S.W.2d 251 (Tex. App.--Fort Worth 1991, no writ) 52

Univ. Interscholastic League v. Torres,

616 S.W.2d 355 (Tex. Civ. App.--San Antonio 1981, no writ) 22

Villalobos v Holguin,

208 S.W.2d 871 (Tex. 1948) 21

Walling v. Metcalfe,

863 S.W.2d 56 (Tex. 1993) 20,44

Webb v. Glenbrook Owners Ass'n, Inc.

298 S.W.3d 374 (Tex. App. -- Dallas 2009, no pet.) 49

Wissman v. Boucher,

240 S.W.2d 278(Tex. 1951) 35,37

W. R. Grace & Co. v. Henson,

2007 Tex. App. LEXIS 6771, 2007 WL 2389547 at *3

(Tex. App. -- Corpus Christi August 23, 2007, no pet.) 40,52

STATUTES

Tex. Civ. Rem. Code §134A.002(6) Passim

Rules

TEX. R. CIV. P. 683 Passim

12

OTHER AUTHORITIES

BLACK'S LAW DICTIONARY 348 (5th ed. 1979) 32

UNIFORM TRADE SECRETS ACT 36

13

STATEMENT OF THE CASE

Plaintiffs, Oak Mortgage Group, Inc. (referred to herein as "Oak"), Michael

H. Nasserfar, (referred to herein as "Nasserfar"), Michael E. Task (referred to

herein as "Task") and Tycord R. Gosnay, (referred to herein as "Gosnay") (referred

to herein collectively as “Appellants") sued Ameripro Funding, Inc. (referred to

herein as "Ameripro") (see, Clerk’s Record, (hereinafter referred to as “CR ___”)

at 3-39) for, inter alia, breach of contract and unfair business practices. Nasserfar,

Task and Gosnay were formerly at will employee residential loan origination

officers for Ameripro who resigned on January 16, 2015 from Ameripro and then

began working as residential loan origination officers for Oak. Ameripro answered

the suit and filed a counterclaim (CR 40-43) against Appellants alleging, inter

alia, breach of contract by Nasserfar, Task and Gosnay, and subsequently filed an

application for temporary injunction. (CR 44-68).

The district court heard evidence on Ameripro's application for temporary

injunction on May 26 and May 27, 2015. On June 16, 2015, the Hon. Gisela D.

Triana, Judge presiding, entered a Temporary Injunction Order. (See Appendix

attached to this Brief referred to as "App. ___" at 1; CR at 223-227 ). Appellants

perfected their accelerated appeal to this court from the Temporary Injunction

Order on July 6, 2015 ( App. 2; CR 230-235).

14

ISSUES PRESENTED FOR REVIEW

The issues presented for review are:

1. Whether the Temporary Injunction Order is void because it does not

comply with the requirements of Rule 683 and there is no evidence in the record to

support the elements necessary to obtain a temporary injunction?

2. Whether the district court erred in applying the non-solicitation

provisions of the contracts to real estate homebuilders and condominium

developers, real estate sales agents, and other real estate professionals involved in

the real estate industry because they are not "customers" of Ameripro under the

plain reading of the contracts?

3. Whether the district court erred in concluding that residential home

and condominium builder, and real estate sales agent contact information is a trade

secret because such information is public information and can never be determined

to be a trade secret, and is not the confidential and proprietary information of

Ameripro?

4. Whether the district court erred in granting the Temporary Injunction

because Ameripro failed to prove probable, imminent and irreparable injury caused

by the previous possession of confidential information of Ameripro?

5. Whether the district court erred in granting the Temporary Injunction

because Ameripro has an adequate remedy at law for contractual damages and

there is no irreparable injury sufficient to justify the Temporary Injunction? and,

6. Whether the district court abused its discretion and entered an

overbroad temporary injunction in which there is no nexus between the enjoined

conduct and any imminent and irreparable injury to Ameripro?

STATEMENT OF FACTS

Oak and Ameripro are competitors in the residential loan mortgage

origination business. Nasserfar, Task and Gosnay worked as loan officers for

Ameripro responsible for originating residential mortgage loans. Nasserfar, Task

15

and Gosnay were at will employee's and pursuant to their contracts retained the

right to resign at any time without notice and without cause and, likewise,

Ameripro retained the right to terminate the employment of Nasserfar, Task and

Gosnay at any time without notice and without cause. (See, App. 6 -- employment

agreement; RR at Vol.2 Ameripro Exhibits 9, 10, 11, 13, 15, 16, 17, and 18).

Nasserfar and Task, as they were permitted to do pursuant to their employment

contracts, terminated their employment with Ameripro on January 16, 2015 (RR at

Vol.4 Applicant's Exhibits 2 and 3), and at the time of the resignations, Nasserfar

and Task returned to Ameripro the laptop computers that had been issued to them.

Id. Gosnay resigned on January 15, 2015. (RR at Vol. 4 Applicant's Exhibit 4), and

returned the laptop computer to Ameripro. Nasserfar, Task and Gosnay began

working for Oak on January 19, 2015. The employment agreements with

Nasserfar, Task and Gosnay were drafted by Ameripro and not negotiated by

Nasserfar, Task and Gosnay. (RR at Vol. 3 at 70, L15-25). Ameripro admits that

the employment agreements do not define the term "customer." (RR at Vol. 3 at

71, L1-11).

Ameripro was unhappy that it's at will employee's had decided to resign and

sent demand letters claiming that contact information of home builders and

residential developers was a "trade secret" of Ameripro. (RR at Vol. 4 Applicant's

Exhibit 5). The information that Ameripro contends is a trade secret is readily

16

available in the public domain and can be obtained by a simple Google search to

find contact information of the builders Ameripro claims are trade secrets. (RR at

Vol. 4 Plaintiffs Exhibits 52- 64; RR at Vol. 3 123-126).

At the time of the temporary injunction hearing, Appellants did not have in

their possession any paper or electronic files which Ameripro claimed was its

property. All electronic and paper files were returned to Ameripro prior to the

temporary injunction hearing and non were retained by Appellants. (RR at Vol. 3

at 122, L21 -- 123 L5; Plaintiffs' Exhibit 34 at RR Vol. 4; RR at Vol. 3 at 73 L18-

78, L1, and 85, L6 - 86, L 23; ). Prior to the temporary injunction hearing all

electronic files claimed by Ameripro to be its property were removed from all

electronic devices of Nasserfar, Task, Gosnay and Oak and returned to Ameripro.

Id.

Chad Overhauser, the President of Ameripro, admitted that Ameripro has no

agreements, no contracts and no business relations with homebuilders and

residential developers such as Brohn Homes, Seahome Residences, and Clark

Wilson Builders and does not pay nor receive any money or other consideration

from homebuilders and residential developers for any products or services. (RR

Vol. 2 at 109-111). Overhauser admitted that Ameripro's customers are the

borrowers borrow money from Ameripro to purchase residential real estate. (RR.

Vol 2 115, L9-21).

17

II.

SUMMARY OF THE ARGUMENT

An applicant for a temporary injunction bears the burden of proving that the

temporary injunction and the specific acts which are enjoined are necessary in

order to prohibit imminent and irreparable injury to the applicant. In this case,

Ameripro failed to offer evidence at the temporary injunction hearing of any

imminent injury that would cause Ameripro irreparable injury. In fact, shortly

after the temporary injunction hearing, Ameripro swore that it was entitled to

recover nearly $2 million in damages for breach of the contract. Texas law does

not permit a temporary injunction to enforce a contract where the applicant for the

injunction has an adequate remedy at law to recover contractual damages. There

simply is no imminent injury. And, there is no irreparable harm that was facing

Ameripro. Ameripro failed to sustain its burden of establishing imminent and

irreparable injury which would necessitate the entry of a temporary injunction.

Moreover, the temporary injunction has no nexus to any imminent or irreparable

injury and was not necessary to prohibit Ameripro from suffering and irreparable

injury.

The temporary injunction order does not comply with the requirements of

Rule 683 because it does not explain why the injunction is necessary in order to

prohibit imminent and irreparable injury to Ameripro. The temporary injunction

18

order makes merely conclusions regarding the applicable legal standard without

providing a reasoning or justification for the injunctive relief and why the

injunctive relief is necessary to prevent irreparable injury. Therefore, the

temporary injunction order is void.

The district court did not follow the language of the contract and applicable

law and restrained Appellants from soliciting publicly known residential builders

and developers. The names and contact information of the publicly known

residential builders and developers is not a trade secret because the information is

readily available in the public and can be obtained by doing a simple Google

search. The contract fails to define the term "customer" but at the temporary

injunction hearing Ameripro's president admitted that Ameripro provides loans to

residential borrowers and that the residential borrowers are the customers of the

Ameripro. He also admitted that Ameripro has no contracts, agreements or

business relationships with residential homebuilders and developers. They are not

"customers" of Ameripro and, consequently, the district court abused its discretion

in restraining Appellants from soliciting the homebuilders.

The temporary injunction order is overbroad and there is no nexus between

the restrictions in the temporary injunction order and the need to protect Ameripro

from imminent and irreparable injury. The temporary injunction order erroneously

fails to limit the restrictions on solicitation to one (1) year after the termination of

19

the employment contracts, and compelled Appellants to turn over forensic images

of their electronic devices and to cease and desist from using their electronic

devices including cell phones, hard drives and laptops which they had used in their

ordinary and daily business practices. There is no justification for this compelling

order and there is no nexus between this provision of the temporary injunction

order and any imminent or irreparable injury.

STANDARD OF REVIEW

The standard of review for the grant or denial of a temporary injunction is

abuse of discretion. Harbor Perfusion, Inc. v. Floyd, 45 S.W.3d 713, 716 (Tex.

App.—Corpus Christi 2001, no pet.) (citing, Walling, 863 S.W.2d at 58; Tenet

Health Ltd. v. Zamora, 13 S.W.3d 464, 468 (Tex. App.—Corpus Christi 2000, pet.

dism'd., w.o.j.)). However, a trial court abuses its discretion when it acts arbitrarily

and unreasonably, without reference to guiding rules or principles, or misapplies

the law to the established facts of the case. Downer v. Aquamarine Operators, Inc.,

701 S.W.2d 238, 241-42 (Tex. 1985). There is no particular deference to legal

conclusions of the trial court and a de novo standard of review applies when the

issue turns on a pure question of law. Zamora, 13 S.W.3d at 468; see State v. Heal,

917 S.W.2d 6, 9 (Tex. 1996). "[A] trial court abuses its discretion by entering an

overly-broad' injunction which grants 'more relief' than a plaintiff is entitled to by

enjoining a defendant from conducting lawful activities or from exercising legal

20

rights." Harbor Perfusion, 45 S.W.3d at 717, (citing Fairfield Estates L.P. v.

Griffin, 986 S.W.2d 719, 723 (Tex. App.—Eastland 1999, no pet.); The Republican

Party of Texas v. Dietz, 940 S.W.2d 86, 93 (Tex. 1997); Villalobos v. Holguin, 146

Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948); Ghidoni v. Stone Oak, Inc., 966

S.W.2d 573, 583 Tex. App.—San Antonio 1998, no writ)). For reasons argued

herein, the temporary injunction granted by the district court is overly broad, not

based upon the evidentiary record and an abuse of discretion by the district court

and, consequently, the temporary injunction should be dissolved. A district court

abuses its discretion if it misapplies the law to the established facts of the case,

Law v. William Marsh Rice Univ., 123 S.W.3d 786, 792 (Tex. App.--Houston

[14th Dist.] 2003, pet. denied), or if it acts arbitrarily and unreasonably, without

reference to guiding rules or principles, or if Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

ARGUMENT AND AUTHORITIES

I.

THE TEMPORARY INJUNCTION ORDER IS VOID BECAUSE IT

DOES NOT COMPLY WITH THE REQUIREMENTS OF RULE 683 AND

THERE IS NO EVIDENCE IN THE RECORD TO SUPPORT THE

ELEMENTS NECESSARY TO OBTAIN A TEMPORARY INJUNCTION.

The temporary injunction order is void because it does not comply with the

strict requirements of Rule 683 of the Texas Rules of Civil Procedure. Rule 683

21

provides that every order granting an injunction must "set forth the reasons for its

issuance" and "be specific in its terms." TEX. R. CIV. P. 683. That is, the order

must provide a "detailed explanation of the reason for the injunction's issuance."

Adust Video v. Nueces County, 996 S.W.2d 245, 249 (Tex. App.--Corpus Christi

1999, no pet.). This requirement is mandatory and must be strictly followed. Qwest

Comms. v. AT&T Corp, 24 S.W3d 334, 337 (Tex. 2000); InterFirst Bank San

Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640, 641 (Tex. 1986); Monsanto Co. v.

Davis, 25 S.W.3d 773, 788 (Tex. App.--Waco 2000, pet. denied); Big D Props.,

Inc. v. Foster, 2 S.W.3d 21, 22-23 (Tex. App.--Fort Worth 1999, no pet.). If an

order fails to comply with these requirements, it is void and should be dissolved.

Qwest Comms., 24 S.W3d at 337; InterFirst Bank, 715 S.W.2d at 641; Monsanto

Co., 25 S.W.3d at 788.

When a temporary injunction is based in part on a showing that the applicant

would suffer irreparable harm if the injunction is not issued, Rule 683 requires the

order to state precisely why the applicant would suffer irreparable harm. See, State

v Cook United, Inc. 464 S.W.2d 105,106 (Tex. 1971); Monsanto Co., 25 S.W.3d at

788 (finding a temporary injunction order to be void under Rule 683 because it

stated only that plaintiffs "will suffer probable injury in the event that such writ of

temporary injunction is not issued"); Byrd Ranch, Inc. v. Interwest Sav. Assoc., 717

S.W.2d 452, 453-55 (Tex. App.--Fort Worth 1986, no writ) (same where order

22

stated only that plaintiff "will suffer irreparable harm for which it has no adequate

remedy at law"); Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358

(Tex. Civ. App.--San Antonio 1981, no writ) ("Even though there were allegations

in the appellee's petition for injunction which may have justified the issuance of the

writ, the mere recital of 'no adequate remedy at law' and 'irreparable harm' in the

order lacks the specificity required by Rule 683."); Gen. Homes, Inc. v. Wingate

Civic Assoc., 616 S.W.2d 351, 353 (Tex. Civ. App.--Houston [14th Dist.] 1981, no

writ) (finding that a temporary injunction order did not satisfy Rule 683 "because

it only states the trial court's conclusion that immediate and irreparable harm will

result if the injunction is not granted, with no specific reasons supporting the

conclusion"); Stoner v. Thompson, 553 S.W.2d 150, 151 (Tex. Civ. App.--Houston

[1st Dist.] 1977, writ ref'd n.r.e.) (finding a temporary injunction order insufficient

under Rule 683 and noting that "[t]he conclusion [in the order] that the situation is

harmful [to the plaintiff] is not a reason why injury will be suffered if the

interlocutory relief is not ordered"); see also Cornelison v. Offshore Entm't Corp.,

No. 13-02-00452-CV, 2002 Tex. App. LEXIS 8618, at *4-5 (Tex. App.--Corpus

Christi Dec. 5, 2002, no pet.) (not designated for publication) (finding a temporary

injunction order void under Rule 683 where order stated only that "[t]he Court

finds that immediate and irreparable injury, loss or damage as alleged will result to

plaintiff unless Defendant is forthwith restrained as requested"); and

23

Intercontinental Terminals Co. v. Vopak N. Am., Inc, 354 S.W.3d 887, 899 (Tex.

App. -- Houston [1st Dist.] 2011, no pet. ) ("Rule 683 mandates that a trial court

order granting a temporary injunction must explain in the order its reasons for

believing that the applicant has shown it will suffer injury if interlocutory relief is

not granted."). The temporary injunction order in this case does not explain in the

order the reasons the district court believes that Ameripro will suffer irreparable

injury if a temporary injunction is not granted and, thus, the temporary injunction

order is void because it does not comply with the strict and mandatory

requirements of Rule 683.

Rule 683 requires that the injunction order state the reasons why an injury is

imminent and irreparable and why an adequate remedy at law does not exist with

detail. The Rule requires that the order state specifically why the injury is

imminent and what injury will be suffered by the applicant if the injunctive relief is

not granted. Cook United, 464 S.W.2d at 106: Kotz v. Imperial Capital Bank, 319

S.W.3d 54,56 ( Tex. App. -- San Antonio 2010, no pet.); International Bhd. of

Elec. Workers Local Un. v Becon Constr. Co., 104 S.W.3d 239, 243 (Tex. App. --

Beaumont 2003, no pet.); Fasken v. Darby, 901 S.W.2d 591, 593 (Tex. App. -- El

Paso 1995, no writ); and, Mareno v. Baker Tools, Inc. 808 S.W.2d 208, 210 (Tex.

App. -- Houston [1st Dist.] 1991, no writ). A temporary injunction "that fails to

identify the harm that will be suffered if it does not issue must be declared void

24

and be dissolved. This rule operates to invalidate an injunction even when the

complaining party fails to bring the error to the trial court's attention." Fasken, 901

S.W.2d at 593.

Here, the temporary injunction order makes mere conclusions and does not

provide any explanation or description of why the extraordinary remedy of a

temporary injunction is needed in order to prevent imminent injury to Ameripro.

The temporary injunction order merely concludes that "Ameripro has met its

burden to establish a probable right of recovery and likelihood of success on the

merits"; but the temporary injunction order does not comply with the requirements

of the Rule 683 by providing the grounds or explaining why the alleged injury to

Ameripro is imminent, or irreparable, or why an adequate remedy at law does not

exist for damages. The temporary injunction order merely concludes that

"Ameripro will suffer a probable, imminent and irreparable injury" but provides no

explanation of why the injury is imminent or, further why the injury is irreparable.

The order merely concludes that "Ameripro does not have a legal remedy that is

adequate in lieu of injunctive relief" but does not provide the necessary description

or grounds supporting why Ameripro does not have a remedy for breach of

contract in damages.

Nowhere in the temporary injunction order is there any description or

explanation of why any injury to Ameripro is imminent. There is also no

25

explanation or description in the temporary injunction order relating to any

"customers" of Ameripro that Appellants unlawfully solicited. And, there is no

explanation in the temporary injunction order regarding any solicitation of "Brohn

Homes, Seaholm Residences or Clark Wilson Builders." On its face, the temporary

injunction order fails to comply with the requirements of Rule 683 and, as a result,

is void and should be dissolved.

The temporary injunction applicant carries the burden to establish all of the

necessary elements that would entitle the applicant to a temporary injunction. At

the temporary injunction hearing, the applicant, Ameripro, must introduce

competent evidence to support all of the necessary elements required to secure a

temporary injunction including an injury that is imminent and a lack of any other

legal remedy. Letson v. Barnes, 979 S.W.2d 414, 417 (Tex. App. -- Amarillo 1998,

pet. denied). There is no evidence in the record of this appeal that would support

any conclusion that Ameripro does not have an adequate remedy at law in damages

for the alleged breach of the contract by Nasserfar, Task and Gosney. There is no

evidence in the record that Ameripro cannot recover damages and no evidence that

Ameripro made any effort to attempt to calculate its contract damages.

Furthermore, there is no evidence in the record of any "imminent injury" to

Ameripro caused by Appellants' possession of alleged confidential information of

Ameripro prior to the temporary injunction hearing. In fact, the undisputed

26

evidence is that all confidential information of Ameripro -- both paper and

electronic -- was returned to Ameripro prior to the temporary injunction hearing

(RR at Vol. 4 Applicant's Exhibit 4; RR at Vol. 3 at 122, L21--123, L5; Plaintiffs'

Exhibit 34 at RR Vol.4; RR at Vol 3 at 73 L18-- 78, L1 and 85, L6 -86, L23.), and,

consequently, there is no basis for any injunction related to the alleged confidential

information of Ameripro. Furthermore, there is no evidence in the record that

Appellants solicited any "customers" of Ameripro except those "customers" of

Appellants that existed prior to the time that they were employed by Ameripro in

which they are permitted to solicit under the express wording of the employment

contracts. In other words, there is no basis and no evidence in the record of any

solicitation of "customers" that would violate any contract. And, in addition, there

is simply no evidence in the record that this temporary injunction was necessary

because of an imminent injury to Ameripro. Consequently, based on the failure of

the temporary injunction order to comply with Rule 683 and the failure of

Ameripro to carry its burden of presenting competent evidence supporting the

elements necessary for a temporary injunction, the temporary injunction in this

case is void and should be immediately dissolved.

II.

THE DISTRICT COURT ERRED IN THE TEMPORARY INJUNCTION

ORDER IN APPLYING THE NON-SOLICITATION PROVISIONS OF

THE CONTRACTS TO REAL ESTATE HOMEBUILDERS AND

CONDOMINIUM DEVELOPERS, REAL ESTATE SALES AGENTS, AND

27

OTHER REAL ESTATE PROFESSIONALS INVOLVED IN THE REAL

ESTATE INDUSTRY BECAUSE THEY ARE NOT "CUSTOMERS" OF

AMERIPRO UNDER THE PLAIN READING OF THE CONTRACTS.

The contracts only prohibit the solicitation of "any customer" of Ameripro

for a period of one (1) year following the termination of Nasserfar's and Task's

employment with Ameripro. Several paragraphs in several employment

agreements provide generally the same verbiage as follows:

"5.(e) For a period of one year following the termination of the Employee's

employment with the Company, the Employee agrees that he will not, directly or

indirectly, for his benefit or for the benefit of any other person, firm or entity do

any of the following:

(i) solicit from any customer, payor or supplier doing business with the

company as of the Employee's termination, business of the same or of a similar

nature to the business of the Company with such customer, payor or supplier:

...

Notwithstanding anything to the contrary contained in the foregoing,

the prohibition contained in Section 5(e)(i) and 5(e)(ii) shall not apply to any

customer of Employee that existed prior to employment with the Company,

provided the customer and their loan is not being serviced by the Company."

(Emphasis added).

( App.6; RR Vol. 4 at Applicant's Exhibit 14). The employment agreements were

drafted by Ameripro. (RR at Vol. 3 at 70, L15-25).

The employment agreements on their face do not define the terms

"customer" and Ameripro confessed that there are no definitions of the terms in the

agreements (RR at Vol. 3 at 71, L1-11) But the exception to the prohibition on

solicitation applies to "any customer of Employee that existed prior to employment

28

with the Company, provided the customer and their loan is not being serviced by

the Company." (Emphasis added) Ameripro is in the business of loaning money to

customers to purchase residential real estate. (RR Vol. 2 at 109-111; 115, L9-21).

This paragraph of the employment agreement clearly defines the term "customer"

to refer to residential loan borrowers, not homebuilders or residential developers.

The district court erred as a matter of law in concluding that the term "customer"

applies to residential homebuilders, residential condominium developers, and other

real estate professionals such as real estate sales agents, and in granting a

temporary injunction prohibiting solicitation of "Brohn Homes, Seaholm

Residences and Clark Wilson Builders" (See, App. 1 at 4). This construction

of the employment agreement by the district court is contrary to the language and

intent of the agreement. The district court's construction of the employment

agreement to define the term "customer" to include residential homebuilders,

residential condominium developers, and other real estate sales professionals such

as real estate agents creates a latent ambiguity in the agreement. It was not the

intent of the agreement. The intent of the agreement was to define the term

"customer" to mean only residential loan borrowers since Michael Nasserfar and

Michael Task are licensed residential mortgage loan officers and Ameripro is in

the business of loaning money to borrowers to enable them to purchase residential

real estate. Any other construction of these terms in the employment agreement is

29

ambiguous and the ambiguity must be construed against the drafter of the

agreement -- Ameripro. Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95

(Tex. 2001); State & Cty. Mut. fire Ins. v. Macias, 83 S.W.3d 304, 307 (Tex. App.-

- Corpus Christi, 2002).

A latent ambiguity in a contract occurs when a contract is unambiguous on

its face, but an ambiguity arises due to some collateral matter when the contract is

applied to the particular subject matter. Progressive Cty. Mut. Ins. v. Kelley, 284

S.W.805, 807 (Tex. 2009); and, Farmers Ins. Exch. v. Leonard, 125 S.W. 85, 65

(Tex. App. -- Austin 2003, pet. denied). The district court's construction of the

employment contract term "customer" to include residential homebuilders,

residential condominium developers, and other real estate sales professionals such

as real estate agents is not only erroneous but such construction creates a latent

ambiguity and, as such, cannot be the basis upon which a temporary injunction can

be sustained. Gallagher Headquarters Ranch Dev., Ltd v. City of San Antonio, 303

S.W,3d 700, 702 (Tex. 2010).

Alternatively, the term "customer" is referred to in both Section 5(e)(i) and

5(e)(ii) of the employment agreement; but, it is also referred to in the paragraph of

the agreement which excludes the non-solicitation prohibition as to "any customer

of Employee that existed prior to employment with the Company." Therefore, if

the term "customer" is to be construed as including residential homebuilders,

30

residential condominium developers, and other real estate sales professionals such

as real estate agents, then the non-solicitation prohibition does not apply to any

residential homebuilders, residential condominium developers, and other real

estate sales professionals such as real estate agents that Michael Nasserfar or

Michael Task did business with prior to their employment with Ameripro. This is

the clear reading on the agreement; however, the temporary injunction order fails

to include a finding that these "customers" can be solicited because the contracts

exempt these customers from the solicitation restrictions However, this

construction of the employment agreement is not necessary if the agreement is

correctly interpreted to mean that the term "customer" refers to borrowers and does

not include any residential homebuilders, residential condominium developers, and

other real estate sales professionals such as real estate agents. The intent of the

agreement was only to limit the solicitation to residential loan borrowers of

Ameripro unless Michael Nasserfar or Michael Task were the loan officers for the

residential loan borrowers prior to their employment with Ameripro -- an instance

in the industry known as a refinance. No evidence establishes that neither Michael

Nasserfar nor Michael Task ever solicited loans from any residential loan

borrowers of Ameripro and, thus, if a proper construction of the employment

contract is utilized, there is no legal basis for a temporary injunction prohibiting

the solicitation of "Brohn Homes, Seaholm Residences, and Clark Wilson

31

Builders" (see, Temporary Injunction Order, App. 1; CR 223-227 at 3-4) since

Nasserfar and Task are in complete compliance with all of their lawful obligations

under the contracts as properly construed.

A "customer" is generally defined as "one who regularly or repeatedly

makes purchases of, or has business dealings with, a tradesman or business."

BLACK'S LAW DICTIONARY 348 (5th ed. 1979). The preferred definition of

"customer" by Webster's New International Dictionary is "one who regularly or

repeatedly makes purchases of, or has business dealings with a tradesman or

business house; one who customarily has dealings with a business establishment."

Ameripro confessed at the temporary injunction hearing that it does not have any

direct business dealings with and does not loan money to residential homebuilders,

residential real estate agents or residential developers. ( RR at Vol. 2 at 109-111).

There are no Texas cases which define a "customer" as one who refers a borrower

to a lender or mortgage company. There is no Texas common-law or statutory law

that would define a mortgage company's "customer" as anyone other than the

"borrower" of money from the mortgage company and there is no statutory or

common law in Texas that would define a mortgage company's customer as a

residential real estate homebuilder, residential condominium builder, licensed real

estate agent or sales agent, or any other professional involved in the real estate

industry. It is clear that the term "customer" in the employment agreements was a

32

reference to borrowers who borrow money from Ameripro -- a company that is in

the business of lending money for the purchase of residential real estate. Id.

Ameripro's contention that residential homebuilders, condominium developers,

licensed real estate sales agents or other professionals in the real estate industry are

its "customers" is without merit, and the district court's construction of the

employment agreements to bar solicitation of residential real estate homebuilders,

residential condominium builders, residential real estate agents or other

professionals involved in the real estate industry is erroneous as a matter of law.

Consequently, the portion of the temporary injunction which prohibits the

solicitation of "Brohn Homes, Seaholm Residences, and Clark Wilson Builders"

(see, Temporary Injunction Order, App.1; CR 223-227) is legally erroneous and

this portion of the temporary injunction should be dissolved because the non-

solicitation provisions apply only to residential loan borrowers, not builders.

III.

THE DISTRICT COURT ERRED IN CONCLUDING THAT

RESIDENTIAL HOME AND CONDOMINIUM BUILDER, AND REAL

ESTATE SALES AGENT CONTACT INFORMATION IS A TRADE

SECRET BECAUSE SUCH INFORMATION IS PUBLIC INFORMATION

AND CAN NEVER BE DETERMINED TO BE A TRADE SECRET, AND IS

NOT THE CONFIDENTIAL AND PROPRIETARY INFORMATION OF

AMERIPRO

The district court's finding and conclusion that residential home and

condominium builder, and licensed real estate sales agent contact information is a

33

confidential and proprietary trade secret belonging only to Ameripro is erroneous

as a matter of law. The contact information of residential home and condominium

builder, and licensed real estate sales agent is not a secret and is not property of or

a trade secret or confidential and proprietary information belonging exclusively to

Ameripro. The contact information of residential home and condominium

builders, and real estate sales agents is generally known and is widely and readily

ascertainable by proper means through the public domain. (RR at Vol 4 Plaintiffs'

Exhibits 52-64; RR at Vol. 3 123-126). The contact information of residential

home and condominium builders, and real estate sales agents is easily obtainable

from the websites sponsored and authored by the residential home and

condominium builders, and real estate sales agents, their public advertising, their

marketing brochures, their business cards, Google searches, Bing searches, trade

Association journals, publications and website searches, public offices where they

conduct business, and other publicly available information. Id. It is no secret and it

is not confidential and proprietary information belonging to Ameripro. And

because it is no secret, and particularly no secret limited to Ameripro, the district

court's conclusion in the temporary injunction order regarding trade secrets is

erroneous.

To establish that the contact information of residential home and

condominium builders, and real estate sales agents is Ameripro's confidential and

34

proprietary trade secret, Ameripro must prove that (1) it has taken reasonable efforts

to keep the information secret, and (2) that the information has actual or potential

independent economic value to third parties because it is generally unknown and not

readily ascertainable by proper means. Tex. Civ. Rem. Code §134A.002(6)

(emphasis added); Twister B.V. v. Newton Research Partners, 364 S.W.3d 428, 437

(Tex. App. -- Dallas, no pet.). To be protected the confidential and proprietary

information trade secret must be substantially secret and unknown to the public or

not ascertainable by the public using proper means. Wissman v. Boucher, 240 S.W.2d

278, 280 (Tex. 1951).

The word "secret" means that the proprietary information is not generally

known or readily available to the public and, conversely, information that is generally

known in the industry, readily accessible by independent investigation, or publicly

disclosed is not a secret and is not confidential or proprietary information belonging

only to Ameripro. Interox Am. v. PPG Indus., 736 F.2d 194, 201-02 (5th Cir. 1984);

Sands v. Estate of Buys, 160 S.W.3d 684, 690-91 (Tex. App. -- Fort Worth 2005, no

pet.) (identities of corporation's clients could easily be acquired by others); SCM

Corp. v. Triplett Co., 399 S.W.2d 583, 586 (Tex. App. -- San Antonio 1996, no writ)

(plaintiff's customer list could be compiled by calling physicians and hospital

administrators and asking for the name of their supplier).

35

Information is "generally unknown" if individuals who would derive an

economic benefit from the information are unaware of the information or cannot

ascertain the information through proper means -- such as public websites, Yellow

Pages, and advertising materials. See, UNIFORM TRADE SECRETS ACT

("UTSA") §1 cmt. Ameripro failed to carry its burden at the temporary injunction

hearing of proving that the alleged confidential and proprietary trade secret

information is not readily ascertainable because it is not available in trade journals,

reference books, published materials, advertising materials or websites. See, Tex.

Civ. Prac. & Rem. Code §134A.002(6)(A) ("CPRC"). In 2013, Texas adopted

the Texas Uniform Trade Secrets Act ("TUTSA") codified at Civ. Prac. & Rem.

Code §134A.001 et. seq. To meet its burden, Ameripro must prove that the alleged

confidential and proprietary trade secret information could not have been

ascertained by independent development, independent research, and not by any

other means that would be proper. See, CPRC §134A.002(4). Prior to the adoption

of the TUTSA, Texas common-law similarly required that the alleged proprietary

information be secret. The proprietary information must have a modicum of

originality to separate it from every day knowledge. Kewanee Oil Co. v. Bicron

Corp., 416 U.S. 470,476 (1974), and information that can be accumulated from the

public domain does not qualify as proprietary and confidential trade secret

information. Brandon v. Copper, 591 S.W.2d 553, 556 (Tex. App. -- Amarillo

36

1979, writ ref'd n.r.e.). Likewise, general skill, knowledge and experience, abstract

ideas, methodologies and practices and procedures required by law do not qualify

as proprietary confidential trade secrets. Numed, Inc. v. McNutt, 724 S.2d 432, 434

(Tex. App. -- Fort Worth 1987, no writ).

The information that Ameripro contends is a proprietary and confidential

trade secret must not be information generally known or readily available to the

public, and Ameripro did not meet its burden to prove that the information was not

generally known or readily available to the public at the temporary injunction

hearing. Reliant Hosp. Partners v. Cornerstone Healthcare Grp. Holdings, Inc.,

374 S.W.3d 488, 499 (Tex. App. -- Dallas 2012, pet. denied); and, Allan J.

Richardson & Assocs v. Andrews, 718 S.W.2d 833, 837 (Tex. App. -- Houston

[14th Dist.] 1986, no writ). So, for example, information that is generally known

in a particular industry, readily ascertainable by inspection or independent

investigation, or publicly disclosed is not considered a confidential and proprietary

trade secret. Interox Am. v. PPG Indus., 736 S.W.194, 201-02 (5th Cir. 1984);

Sands v. Estate of Buys, 160 S.W.3d 684, 690-91 (Tex. App. --Fort Worth 2005, no

pet.) (identities of corporation's clients could easily be acquired by others and, thus,

is not confidential and proprietary trade secret information); and, Wissman v.

Boucher, 240 S.W.2d 278, 281 (Tex. 1951) (general knowledge available to the

public does not qualify as a confidential and proprietary trade secret).

37

In addition, Ameripro failed at the temporary injunction hearing to address

several of the factors as set forth in the Restatement (3d) of Unfair Competition

§39 reporter's note cmt. d. First, is the information known outside Ameripro's

business? The court should assess the extent to which the alleged confidential and

proprietary trade secret is information that is outside of the Ameripro's business,

and is information only known to the Ameripro. The court should consider the

extent to which the alleged confidential and proprietary trade secret information is

generally known in the residential real estate market in Austin and the surrounding

communities. Lamons Metal Gasket Co. v. Traylor, 361 S.W.2d 211, 213 (Tex.

App. -- Houston 1962, writ ref'd n.r.e.) (Machines were generally known to the

basket and metal industry and were not a trade secret). Specifically, customer lists

that contain information readily discoverable by independent means would not

qualify as a protectable confidential proprietary trade secret. Numed, Inc. v.

McNutt, 724 S.2d 432, 435 (Tex. App. -- Fort Worth 1987, no writ); (customer lists

could be compiled by calling physicians and hospital administrators and asking for

the name of their supplier and, thus, does not qualify); SCM Corp. v. Triplett Co.,

399 S.W.2d 583, 586 (Tex. App. -- San Antonio 1966, no writ) (the customer lists

could be ascertained by anyone and, thus, is not confidential and proprietary trade

secret information).

38

Second, what is the level of difficulty to duplicate the information? The

court should assess the ease or difficulty with which others could properly acquire

or duplicate the information. In re Union Pac. R.R., 294 S.W.3d 589, 592 (Tex.

2009); and In re Bass, 113 S.W.3d 735, 742 (Tex. 2003). These factors weigh

heavily in rejecting Ameripro's contention that the contact information of real

estate homebuilders and other professionals in the real estate business is a

confidential and proprietary trade secret belonging only to Ameripro, and

Ameripro failed to prove at the temporary injunction hearing that such information

is a trade secret. The information clearly is not confidential, not proprietary and not

secret. Because of Ameripro's failure to present or offer evidence or to rebut the

public nature of this information, the District Court erred in concluding that there

was any trade secret status to the contact information of real estate homebuilders

and other professionals in the real estate business and, consequently, trade secrets

is an improper basis for granting the temporary injunction.

IV.

THE DISTRICT COURT ERRED IN GRANTING THE TEMPORARY

INJUNCTION BECAUSE AMERIPRO FAILED TO PROVE PROBABLE,

IMMINENT AND IRREPARABLE INJURY CAUSED BY THE PREVIOUS

POSSESSION OF CONFIDENTIAL INFORMATION OF AMERIPRO.

Where is the probable, imminent and irreparable injury to Ameripro from

Appellants' alleged previous possession of alleged confidential information? No

injury or harm was established by Ameripro at the temporary injunction hearing,

39

and certainly no imminent injury. There is no irreparable injury existing in the

record to support the temporary injunction clauses related to the alleged

confidential information or alleged trade secrets. Ameripro failed to prove

probable and imminent irreparable injury caused by the previous possession by

Appellants of Ameripro's alleged confidential information. It is improper for the

district court to assume irreparable injury when there is no proof of misuse of

confidential information by Appellants. W.R. Grace & Co. v. Henson, 2007 Tex.

App. LEXIS 6771, 2007 WL 2389547, at *3 (Tex. App.—Corpus Christi Aug. 23,

2007, no pet.). The obligation not to use confidential information also does not bar

a former employee from using the general knowledge, skill, and experience that

the employee acquired during the employment to compete with the former

employer. Rimkus Consulting Group, Inc. v. Cammarata, 255 F.R.D. 417, 443

(S.D. Tex. 2008); Sharma v. Vinmar Int'l, Ltd., 231 S.W.3d 405, 425 (Tex. App.—

Houston [14th Dist.] 2007, no pet.). Here, there is no reason to infer that

Appellants did or would use Ameripro's confidential information because at the

time of the temporary injunction hearing Appellants did not have any confidential

information in their possession (see, RR at Vol. 3 at 122, L21-123,L5; Plaintiffs'

Exhibit 34at RR Vol.4; RR at Vol.3 at 73 L18-78, L1 nad 85, L6-- 86, L23) and do

not need such information in their current positions given their extensive industry

knowledge. See Guy Carpenter & Co., Inc. v. Provenzale, 334 F.3d 459, 469 (5th

40

Cir. 2003) (declining to infer that former employee would probably use the

information).

The purpose of injunctive relief is to halt wrongful acts that are threatened or

in the course of accomplishment, rather than to grant relief against past actionable

wrongs or to prevent commission of wrongs not imminently threatened. See Tex.

Health Care Info. Council v. Seton Health Plan, Inc., 94 S.W.3d 841, 853 (Tex.

App.--Austin 2002, pet. denied). Although an injunction is a preventive device,

injunctive relief is improper when the party seeking the injunction has mere fear or

apprehension of the possibility of injury. Harbor Perfusion, Inc. v. Floyd, 45

S.W.3d 713, 716 (Tex. App.--Corpus Christi 2001, no pet.)

No legal presumption of use of confidential information exists under Texas

law. Texas courts have declined to apply the inevitable disclosure doctrine when

the former employee does not have possession of confidential information or has

not used any such alleged confidential information with his current employer, M-I,

L.L.C. v. Stelly, 2009 U.S. Dist. LEXIS 65866, 2009 WL 2355498, at * 7 (S.D.

Tex. Jul. 30, 2009); Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d

230, 242 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Ameripro offered no

evidence of any past improper use of any alleged confidential information by

Appellants, and, as a matter of law, there can be no future improper use of

confidential information since the record establishes, without debate, that

41

Appellants no longer possess any confidential information of Ameripro. (RR at

Vol. 3 at 122, L21-123,L5; Plaintiffs' Exhibit 34at RR Vol.4; RR at Vol.3 at 73

L18-78, L1 nad 85, L6-- 86, L23). Ameripro cannot rely upon the "inevitable

disclosure doctrine" to support its burden to prove irreparable harm caused by the

Appellants previous possession of alleged confidential information. There is no

evidence of irreparable harm, or any injury at all, suffered in the past or in the

future by the Appellants previous possession of alleged confidential information of

Ameripro and certainly no injury that is imminent. Therefore, the district court

erred in granting the temporary injunction because there is no probable and

imminent irreparable injury to Ameripro resulting from Appellants previous

possession of alleged confidential information.

Despite the employment contracts and Texas statutes, Ameripro is still

required to prove imminent and irreparable injury in the interim if a temporary

injunction is not entered. America failed to prove any imminent injury and

certainly no irreparable harm. In 2012, the Dallas Court of Appeals held that

employment contracts and statutes regarding non-compete and non-solicitation

covenants do not replace the common law requirement for injunctive relief that an

applicant show imminent and irreparable injury to obtain a temporary injunction.

Primary Health Physicians, P.A. v. Sarver, 390 S.W.3d 662, 664-65 (Tex. App.—

Dallas 2012, no pet.). The Sarver court then joined its sister courts of appeals in

42

holding that employment contracts and statutes do not preempt the requirements

for obtaining temporary injunctive relief. Id. at 665 (citing EMSL Analytical, Inc. v.

Younker, 154 S.W.3d 693, 695 (Tex. App.—Houston [14th Dist.] 2004, no pet.);

and NMTC Corp. v. Conarroe, 99 S.W.3d 865, 867-68 (Tex. App.—Beaumont

2003, no pet.)). The Sarver court agreed with the reasoning of these cases that

employment contracts in Texas statutes do "not supplant the common law

requirements for a pretrial temporary injunction." Id. Since Sarver issued in 2012,

other Texas courts of appeals have agreed that evidence of a probable, imminent,

and irreparable injury in the interim is a necessary element for a temporary

injunction. See Tranter, Inc. v. Liss, No. 02-13-00167-CV, 2014 Tex. App. LEXIS

3398, 2014 WL 1257278, at *7 (Tex. App.—Fort Worth Mar. 27, 2014, no pet.)

(mem. op.) (section 15.52 does not apply to temporary injunctions); Down Time-

South Texas, LLC v. Elps, 13-13-00495-CV, 2014 Tex. App. LEXIS 3047, 2014

WL 1464320, at *7 (Tex. App.—Corpus Christi-Edinburg Mar. 20, 2014, no pet.)

(mem. op.) (requiring proof of injury). Therefore, an applicant seeking a temporary

injunction must show a probable, imminent, and irreparable injury in the interim

before trial to sustain its burden to be entitled to a temporary injunction. Ameripro

failed to do so.

There is no evidence in the record of any probable, imminent and irreparable

injury that Ameripro would suffer if a temporary injunction was not entered. In

43

fact, the record establishes, without rebuttal or conflict, that all of the confidential

information alleged by Ameripro was returned to Ameripro prior to the temporary

injunction hearing and no paper or electronic copies of any confidential

information was retained by Appellants. (RR at Vol. 3 at 122, L21-123,L5;

Plaintiffs' Exhibit 34at RR Vol.4; RR at Vol.3 at 73 L18-78, L1 nad 85, L6-- 86,

L23). Since the record conclusively establishes that Appellants, at the time of the

temporary injunction hearing, did not possess any confidential information of

Ameripro, Ameripro has failed to meet its burden to establish a probable, imminent

and irreparable injury in the interim caused by the alleged confidential information,

and the district court abused its discretion in entering a temporary injunction

regarding electronic files, electronic media, and confidential information.

V.

THE DISTRICT COURT ERRED IN GRANTING THE TEMPORARY

INJUNCTION BECAUSE AMERIPRO HAS AN ADEQUATE REMEDY AT

LAW FOR CONTRACTUAL DAMAGES AND THERE IS NO

IRREPARABLE INJURY SUFFICIENT TO JUSTIFY THE TEMPORARY

INJUNCTION.

The purpose of a temporary injunction is to preserve the status quo of the

litigation's subject matter pending a trial on the merits. Butnaru v. Ford, 84 S.W.3d

198, 204 (Tex. 2002), citing, Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993);

and Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139 (Tex. Civ. App.-

Dallas 1974, no writ). The Texas Supreme Court emphasized that "[a] temporary

44

injunction is an extraordinary remedy and does not issue as a matter of right",

citing Walling, 863 S.W.2d at 57 and that "[t]o obtain a temporary injunction, the

applicant must plead and prove three specific elements: (1) a cause of action

against the defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim." Butnaru, 84 S.W.3d at 204, citing,

Walling, 863 S.W.2d at 57; and, Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218

(Tex. 1968). The probable injury element requires a showing that the harm is

imminent, the injury would be irreparable, and that the plaintiff has no other

adequate legal remedy. Zamora, 13 S.W.3d at 468.

An irreparable injury exists if the party injured cannot sufficiently be

compensated in damages or the amount of damages is immeasurable by pecuniary

standards. Id. (citing Canteen Corp. v. Republic of Tex. Props., Inc., 773 S.W.2d

398, 401 (Tex. App.--Dallas 1989, no writ)). The contract provisions at issue here

"will not be enforced by an injunction where the party seeking the injunction has

failed to show that without injunctive relief he will suffer irreparable injury for

which he has no adequate legal remedy." Reach Group, L.L.C. v. Angelina Group,

173 S.W.3d 834, 837-38 (Tex. App.--Houston [14th Dist.] 2005, no pet.).

Although an injunction is a preventive device, injunctive relief is improper

where the party seeking the injunction has mere fear or apprehension of the

possibility of injury. Frey v. DeCordova Bend Estates Owners Ass'n, 647 S.W.2d

45

246, 248 (Tex. 1983). A prerequisite for injunctive relief is actual injury, the threat

of imminent harm, or another's demonstrable intent to do that for which injunctive

relief is sought. Tri-State Pipe and Equip., Inc. v. S. Cnty. Mut. Ins. Co., 8 S.W.3d

394, 401 (Tex. App.—Texarkana 1999, no pet.). An injunction will not issue if

damages are sufficient to compensate the applicant for any wrong committed by

the respondent and if the damages are subject to measurement by an ascertainable

pecuniary standard. Tom James Co. v. Mendrop, 819 S.W.2d 251, 253 (Tex. App.--

Fort Worth 1991, no writ), and Minexa Ariz., Inc. v. Staubach, 667 S.W.2d 563,

567 (Tex. App.-- Dallas 1984, no writ). The party requesting the injunction has the

burden of negating the existence of adequate legal remedies. Minexa Ariz., Inc.,

667 S.W.2d at 567; and Cardinal Health, 106 S.W.3d at 235. The burden is on the

applicant (Ameripro) to prove that its damages cannot be calculated, not on the

non-movant (Appellants) to disprove that notion. See Reach Group, L.L.C., 173

S.W.3d at 838. Ameripro failed to carry that burden because it produced no

evidence, either express or implicit, that its damages are simply too speculative to

be calculated and, after the temporary injunction hearing swore that it had nearly

$2 million in damages (CR Supp. 2 filed August 31 2015 at 17) and, additionally,

that it was entitled to disgorgement damages and a reasonable royalty from

Appellants. (See, App. 3,4 and 5 at 3-6,16-17: CR Supp. 2 filed August 31, 2015 at

3-6, 16-17).

46

Ameripro failed to establish or offer any evidence that Appellants intended

to or were violating any provision of the contract and, specifically, there is no

evidence that Appellants had possession of any of the alleged confidential and

proprietary files (paper or electronic) of Ameripro at the time of the temporary

injunction hearing. In fact, the evidence establishes, without rebuttal from

Ameripro, that all of the electronic files had been deleted from all electronic

devices of the Appellants prior to the temporary injunction hearing (RR at Vol. 3 at

73 L18-78, L1 and 85, L6 -- 86, L23 -- testimony of Lee Whitfield) and, thus, there

is no basis for the temporary injunction clauses with respect to the paper or

electronic alleged confidential and proprietary records and files of Ameripro. In

addition, Ameripro failed to establish that Ameripro had a probable, imminent and

irreparable injury in the interim that could not be compensated by damages and,

thus, the temporary injunction was improperly granted by the district court.

A district court abuses its discretion in granting a temporary injunction

unless "it is clearly established by the facts that one seeking such relief is

threatened with an actual irreparable injury if the injunction is not granted." Markel

v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex. App.—San Antonio 1996, no pet.)

(quoting Dallas Gen. Drivers v. Wamix, Inc., 156 Tex. 408, 295 S.W.2d 873, 879

(Tex. 1956)). And evidence of fear, apprehension, and possibilities is not sufficient

to establish any injury, let alone irreparable injury. Id. at 79-80. To demonstrate

47

probable injury or harm, an applicant must show an injury for which there can be

no real legal measure of damages or none that can be determined with a sufficient

degree of certainty, i.e., a non-compensable injury. Marketshare Telecom, L.L.C. v.

Ericsson, Inc., 198 S.W.3d 908, 925-26 (Tex. App.—Dallas 2006, no pet.).

The party seeking injunctive relief carries the burden to demonstrate an

irreparable injury. See Reach Group, L.L.C. v. Angelina Group, 173 S.W.3d 834,

838 (Tex. App.--Houston [14th Dist.] 2005, no pet.). An injury is considered

irreparable if the party cannot be adequately compensated in damages, or if those

damages are incapable of calculation. Butnaru, 84 S.W.3d at 204; Reach Group,

L.L.C., 173 S.W.3d at 838. Generally, however, courts do not enforce contractual

rights by injunction, because an applicant who may recover breach-of-contract

damages can rarely establish an irreparable injury and accompanying inadequate

legal remedy. Butnaru, 84 S.W.3d at 211; Reach Group, L.L.C., 173 S.W.3d at

838.

It is improper for a district court to enforce contractual rights by injunction

"because a party can rarely establish an irreparable injury and an inadequate legal

remedy when damages for breach of contract or available." Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 211 (Tex. 2002), citing, Canteen Corp. v. Republic of Tex.

Props., Inc. 773 S.W.2d 398, 401 (Tex. App. -- Dallas, 1989, no writ), and

Chevron U.S.A. , Inc. v Stoker, 666 S.W. 2d 379, 382 (Tex. App. Eastland 1984,

48

writ dism'd). The district court erred in enforcing a contract between the parties

when the legal remedy of damages was available to Ameripro.

Under common law, the applicant seeking injunctive relief must demonstrate

four elements to be entitled to an injunction: (1) the existence of a wrongful act; (2)

the existence of imminent harm; (3) the existence of irreparable injury; and (4) the

absence of an adequate remedy at law. Devon Energy production company, L.P. v.

McCarver, ____S.W.3d ___, 2015 Tex App. LEXIS 8241, (Tex, App. -- Waco,

August 6, 2015, no pet.), citing, Noell v. City of Carrollton, 431 S.W.3d 682, 712

(Tex. App.—Dallas 2014, pet. denied); Webb v. Glenbrook Owners Ass'n, Inc., 298

S.W.3d 374, 384 (Tex. App.—Dallas 2009, no pet.); Priest v. Tex. Animal Health

Comm'n, 780 S.W.2d 874, 875 (Tex. App.—Dallas 1989, no writ).

It is no excuse that §65.001 of the Texas civil practice and remedies code

does not set forth in these elements specifically since the principles governing

courts of equity govern injunction proceedings under §65.001. See, §65.001 ("The

principles governing courts of equity govern injunction proceedings if not in

conflict with this chapter or other law."). And, Rule 693 of the Texas Rules of

Civil Procedure provides that "[t]he principles, practice and procedure governing

courts of equity shall govern proceedings in injunctions when the same are not in

conflict with these rules or the provisions of the statutes." See, TRCP 693.

49

In Town of Palm Valley Texas v. Johnson, 87 S.W.3d 110, (Tex. 2001), the

Texas Supreme Court rejected the opinion of the Court of Appeals that an

injunction may be granted without a showing of irreparable harm". The court held

that the requirement of equity of showing irreparable harm and a lack of an

adequate legal remedy are prerequisites to obtaining injunctive relief. Town of

Palm Valley Texas, supra, 87 S.W.3d at 111. "For the same reasons as we

explained in Powers, the statute does not permit injunctive relief without a

showing of irreparable harm otherwise required by equity." Town of Palm Valley

Texas, supra, 87 S.W.3d at 111. The Waco Court of Appeals, as recently as August

6, 2015, has affirmed that the Texas Supreme Court "does not permit injunctive

relief without a showing of irreparable harm or injury as otherwise required by

equity." Devon Energy production company, L.P. supra, Tex App. LEXIS 8241

*4, citing, Town of Palm Valley Texas v. Johnson, 87 S.W.3d 110, 111 (Tex.

2001).

Ameripro failed to establish in the district court, and cannot establish

"irreparable injury" which is a necessary element for a temporary injunction

because Ameripro has an adequate remedy at law -- namely, damages. As held by

the Dallas Court of Appeals, "[i]rreparable injury" is stated to be '"an injury of such

nature that the injured party cannot be adequately compensated therefore in

damages, or that the damages which result there from cannot be measured by any

50

certain pecuniary standard."' Canteen Corp. v. Republic of Tex. Props., Inc. 773

S.W.2d 398, 401 (Tex. App. -- Dallas, 1989, no writ), citing, Chevron U.S.A. , Inc.

v Stoker, 666 S.W. 2d 379, 382 (Tex. App. Eastland 1984, writ dism'd), and

Minexa Arizona, Inc. v. Staubach, 667 S.W.2d 563, 567 (Tex. App. -- Dallas 1984,

no writ). Because Ameripro has an adequate damage remedy, the temporary

injunction was improper and the district court abused its discretion in granting the

temporary injunction.

"An injury is irreparable if the injured party cannot be adequately

compensated in damages or if the damages cannot be measured by any certain that

pecuniary standard." Devon Energy, supra, Tex App. LEXIS 8241 *4, citing,

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002); Canteen Corp. v.

Republic of Tex. Props., Inc., 773 S.W.2d 398, 401 (Tex. App.—Dallas 1989, no

writ).

. Ameripro, the applicant, must establish that there is no adequate remedy at law

for the damages Ameripro seeks. Devon Energy, supra, Tex App. LEXIS 8241 *4,

citing, Millwee-Jackson Joint Venture v. DART, 350 S.W.3d 772, 782 (Tex.

App.—Dallas 2011, no pet.); and Cardinal Health Staffing Network, Inc. v. Bowen,

106 S.W.3d 230, 235 (Tex. App.—Houston [1st Dist.] 2003, no pet.).

In Butnaru, the Texas Supreme Court held that the applicant for the

injunction must establish "in the trial court, in addition to the other temporary-

51

injunction elements, and an inadequate legal remedy." Butnaru, 84 S.W.3d at 204,

210. Even in the context of an employment contract not to solicit, the applicant for

the injunction, Ameripro, must still meet its burden of establishing that it has no

adequate remedy at law and that it cannot calculate or establish damages resulting

from the alleged unlawful breach of the contract not to solicit customers "In the

context of a covenant not to compete, a covenant will not be enforced by an

injunction where the party seeking the injunction has failed to show that without

injunctive relief he will suffer irreparable injury for which he has no adequate legal

remedy." The Reach Group, LLC v. Angelina Group, 173 S.W.3d 834, 836-38

(Tex. App. -- Houston [14th Dist.] 2005, no pet.), citing, Tom James Co. v.

Mendrop, 819 S.W.2d 251, 253 (Tex. App.--Fort Worth 1991, no writ). "Courts

generally will not enforce contractual rights by injunction, because a party can

rarely establish an irreparable injury and an inadequate legal remedy when

damages for breach of contract are available." The Reach Group, LLC, 173 S.W.3d

at 838, citing, Butnaru, 84 S.W.3d at 211. ("An injury is irreparable if the injured

party cannot be adequately compensated in damages or if the damages cannot be

measured by any certain pecuniary standard.") Butnaru, 84 S.W.3d at 204; and see

Cardinal Health Staffing Network, Inc v. Bowen, 106 S.W.3d 230, 235 (Tex. App.-

-Houston [1st Dist.] 2003, no pet.)(quoting Butnaru, 84 S.W.3d at 204); Mendrop,

819 S.W.2d at 253 ("An injunction will not issue if damages are sufficient to

52

compensate the plaintiff for any wrong committed by the defendant and if the

damages are subject to measurement by an ascertainable pecuniary standard.").

And Ameripro, the injunction applicant, has the burden to establish that there is no

adequate remedy at law for damages. The Reach Group, LLC, 173 S.W.3d at 838,

citing, Cardinal Health, 106 S.W.3d at 235.

In W. R. Grace & Co. v. Henson, 2007 Tex. App. LEXIS 6771 (Tex. App. --

Corpus Christie 2007, no pet.), the employee resigned his position with the

employer and accepted a job with one of the employer's competitors. He testified

that he intended to solicit business from customers that he had serviced when

working for the employer, but that he would not disclose any information received

while working for the employer. The employer contended that it would suffer

irreparable injury absent an injunction. However, the appellate court noted that the

employer did not: (1) present any evidence of wrongful acts that were imminently

threatened or in the course of accomplishment, (2) claim that it had lost any

business, or (3) prove that the employee used any confidential information to

solicit business for his new employer. The employer provided no evidence

regarding harm or injuries that could not be remedied through an award of

monetary damages. The Court of Appeals affirmed the district court's denial of the

requested temporary injunction because there was no imminent harm and the

53

applicant for the injunction failed to prove that it's injuries could not be

compensated through the award of monetary damages.

Here, Ameripro failed to prove that it has no adequate remedy at law if the

temporary injunction is not granted. After the temporary injunction was granted,

Ameripro swore that it had suffered approximately $2 million in damages. But, at

the temporary injunction hearing, Ameripro failed to prove that it cannot recover

its contractual damage claims. The district court erred in granting the temporary

injunction because there was no proof of an imminent and irreparable injury.

Ameripro can proceed with its contractual damages claims; but the temporary

injunction should be dissolved.

VI.

THE DISTRICT COURT ABUSED ITS DISCRETION AND ENTERED AN

OVERBROAD TEMPORARY INJUNCTION IN WHICH THERE IS NO

NEXUS BETWEEN THE ENJOINED CONDUCT AND ANY IMMINENT

AND IRREPARABLE INJURY TO AMERIPRO.

A district court abuses its discretion when it misapplies the law to

established facts or when it concludes that a temporary injunction should be

granted and such conclusion is not reasonably supported by the evidence. State v.

Southwestern Bell Tel Co., 526 S.W.2d 526, 528 (Tex. 1975). The entry of a

temporary injunction that enjoins lawful as well as unlawful acts is overbroad and

constitutes abuse of discretion. RCI Entm't (San Antonio), Inc. v. City of San

Antonio, 373 S.W.3d 589, 603 (Tex. App. -- San Antonio 2012, no pet.); and,

54

Computek Computer & Office Sups. v. Walton, 156 S.W.3d 221 (Tex. App. --

Dallas 2005, no pet.).

A temporary injunction must enjoin only those acts that are necessary to

protect the applicant from imminent and irreparable injury and must not enjoin acts

that are unnecessary to protect the applicant during the interim before trial from

imminent and irreparable injury. "[A] trial court abuses its discretion by entering

an overly-broad' injunction which grants 'more relief' than a plaintiff is entitled to

by enjoining a defendant from conducting lawful activities or from exercising legal

rights." Harbor Perfusion, 45 S.W.3d at 717, (citing Fairfield Estates L.P. v.

Griffin, 986 S.W.2d 719, 723 (Tex. App.—Eastland 1999, no pet.); The Republican

Party of Texas v. Dietz, 940 S.W.2d 86, 93 (Tex. 1997); Villalobos v. Holguin, 146

Tex. 474, 208 S.W.2d 871, 875 (Tex. 1948); Ghidoni v. Stone Oak, Inc., 966

S.W.2d 573, 583 Tex. App.—San Antonio 1998, no writ)). A temporary injunction

order that goes further than necessary to protect the applicant from imminent

irreparable injury or that does not comply with applicable law is overbroad and an

abuse of discretion. Matlock v. Data Processing Security, Inc., 618 S.W.327, 329

(Tex. 1981).

The temporary injunction order entered by the district court is overbroad and

is an abuse of discretion by the court. Clause (i) of the temporary injunction order

requires Appellants "to provide" "forensic images of all original source media that

55

contains or did contain Ameripro files or information (including but not limited to

flash drives, disks, USB storage devices, external storage devices, hard drives, cell

phones and laptops) (hereinafter collectively the "Media") in the possession,

custody or control of Nasserfar, Task, and Gosnay." (App. 1 at 3) This provision is

overbroad and unnecessary to preserve the status quo until trial. The temporary

injunction order does not set forth an explanation of why Ameripro will be

imminently and irreparably injured if the forensic images are not turned over to

Ameripro, and there is no evidence of imminent or irreparable injury that will

occur to Ameripro if the forensic images are not turned over.

In the same clause (i) of the temporary injunction order, the district court

ordered that "[t]he Media [including hard drives, cell phones and laptops of

Nasserfar, Task and Gosnay which they use every day in their business] from

which the forensic images are made will be preserved and held by" Appellants'

counsel as "attorneys eyes only." In essence, the district court ordered that the hard

drives, cell phones and laptop computers of Nasserfar, Task and Gosnay which

they use in their daily business practices had to be relinquished by them, turned

over to their attorney and held by the attorney without access by Nasserfar, Task

and Gosnay. This provision of the temporary injunction order is unreasonable and

overbroad and an abuse of discretion. The temporary injunction order does not set

forth an explanation of why Ameripro will be imminently and irreparably injured if

56

Nasserfar, Task and Gosnay do not relinquish their hard drives, cell phones and

computers, and there is no evidence of imminent or irreparable injury that will

occur to Ameripro if Nasserfar, Task and Gosnay do not relinquish their hard

drives, cell phones and computers. Ameripro sought this provision of the order to

punish Nasserfar, Task and Gosney for resigning their at will employment with

Ameripro. This provision of the order bears no resemblance to any need for

protection for Ameripro, is overbroad and an abuse of discretion.

Clause (iii) of the temporary restraining order unreasonably restrains "Oak

Mortgage, [and] employees of Oak Mortgage" from "directly or indirectly,

soliciting business from Brohn Homes, Seaholm Residences and Clark Wilson

Builders." There is no contract or fiduciary relationship between Oak Mortgage

and Ameripro and, thus, no legal justification for enjoining all loan officers and

employees of Oak Mortgage from soliciting business from publicly known

homebuilders. The temporary injunction order does not set forth an explanation of

why Ameripro will be imminently and irreparably injured if loan officers and

employees of Oak Mortgage -- other than Nasserrfar, Task and Gosnay -- solicit

business from publicly known homebuilders -- such as Brohn Homes, Seaholm

Residences, and Clark Wilson Builders -- and there is no evidence of imminent or

irreparable injury that will occur to Ameripro if such actions are not enjoined.

57

Clause (iii) of the temporary restraining order is also unreasonable and

overbroad because it does not restrict the prohibition on solicitation to the one (1)

year term as set forth in the employment agreements. (App. 6; RR Vol 4 Plaintiffs'

Exhibit 3). The restriction on solicitation, if properly applied and applicable at all,

is limited to one year from the date that Nasserfar, Task and Gosnay terminated

their employment relationship with Ameripro. Id. this portion of the temporary

injunction order is too broad and, if applicable at all, must be limited to one (1)

year from the date of the termination of the employment relationship which

occurred on January 16, 2015.

PRAYER

For these reasons, Appellants pray that the court dissolve the temporary

injunction.

Respectfully submitted,

/s/ Charles Bundren

WM. CHARLES BUNDREN & ASSOCIATES

LAW GROUP, PLLC

Wm. Charles Bundren, Esq.

Attorney-in Charge

State Bar No. 03343200

2591 Dallas Parkway, Suite 300

Frisco, Texas 75034

(214) 808-3555 Telephone

(972) 624-5340 Facsimile

e-mail: charles@bundrenlaw.net

ATTORNEY FOR APPELLANTS

58

CERTIFICATE OF SERVICE

The undersigned certifies that on this 17th day of September, 2015, all

counsel of record were served with a copy of this document by serving the

following:

Susan Burton, Esq.

State Bar No. 03479350

GRAVES DOUGHTERY HEARON & MOODY

P.C.

401 Congress., Suite 2200

Austin, Texas 78701

Telephone: (512) 480-5600

Telecopier: (512) 480-5862 (facsimile)

E-mail: sburton@gdhm.com

ATTORNEY FOR APPELLEE:

__X__by the electronic filing manager pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a),

9.5 (b) (1), 9.5(c) (4)and 9.5(e),

____ by certified mail return receipt requested deposited with the United States

Postal Service on the date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5

(a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

__X__ by email at the email address indicated above pursuant to TRAP 6.3, 9.2

(c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

____ by commercial delivery service deposited with ___________________ on the

date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c)

(4)and 9.5(e),

and/or

____ by fax at the fax number indicated above pursuant to.

TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

/s/ Charles Bundren

Wm. Charles Bundren, Esq.

59

ATTORNEY FOR:

APPELLANTS

CERTIFICATE OF COMPLIANCE

I certify that this document was produced on a computer using Microsoft

Word and contains 10,967 words, as determined by the computer software's word-

count function, excluding the sections of the document listed in Texas rule of

appellate procedure 9.4(i)(1).

/s/ Charles Bundren

WM. CHARLES BUNDREN & ASSOCIATES

LAW GROUP, PLLC

Wm. Charles Bundren, Esq.

Attorney-in Charge

State Bar No. 03343200

2591 Dallas Parkway, Suite 300

Frisco, Texas 75034

(214) 808-3555 Telephone

(972) 624-5340 Facsimile

e-mail: charles@bundrenlaw.net

ATTORNEY FOR APPELLANTS

60

CASE NO. 03-15-00416-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS

OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,

MICHAEL E. TASK, AND TYCORD R. GOSNA Y

Appellants

V.

AMERIPRO FUNDING, INC.

Appellee

Appeal from the 345th Judicial District Court

of Travis County Texas

APPELLANTS' APPENDIX

Wm. Charles Bundren, Esq.

Attorney-in-Charge

State Bar No. 03343200

2591 Dallas Parkway

Suite 300

Frisco, Texas 75034

Telephone:214.808.3555

CERTIFICATE OF SERVICE

The undersigned certifies that on this 17th day of September, 2015, all

counsel of record were served with a copy of this document by serving the

following:

Susan Burton, Esq.

State Bar No. 03479350

GRAVES DOUGHTERY HEARON & MOODY

P.C.

401 Congress., Suite 2200

Austin, Texas 78701

Telephone: (512) 480-5600

Telecopier: (512) 480-5862 (facsimile)

E-mail: sburton@gdhm.com

ATTORNEY FOR APPELLEE:

_X_by the electronic filing manager pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a),

9.5 (b) (1), 9.5(c) (4)and 9.5(e),

_ _ by certified mail return receipt requested deposited with the United States

Postal Service on the date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5

(a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

_X_ by email at the email address indicated above pursuant to TRAP 6.3, 9.2

(c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c) (4)and 9.5(e),

_ _ by commercial delivery service deposited with on the

date indicated above pursuant to TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1), 9.5(c)

(4)and 9.5(e),

and/or

_ _ by fax at the fax number indicated above pursuant to.

TRAP 6.3, 9.2 (c)(2), 9.5 (a), 9.5 (b) (1 ), 9.5(c) (4)and 9.5(e),

/s/ Charles Bundren

Wm. Charles Bundren, Esq.

ATTORNEY FOR:

APPELLANTS

CASE NO. 03-15-00416-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS

OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,

MICHAEL E. TASK, AND TYCORD R. GOSNA Y

Appellants

v.

AMERIPRO FUNDING, INC.

Appellee

Appeal from the 345th Judicial District Court

ofTravis County Texas

APPELLANTS' APPENDIX

EXHIBIT 1

DC BK15168 PG52

Flied in The District Court

of Tl'lvis County, TtXII

At

JUN 16 2015

}Q 5Q&.,

&

CAUSE NO. D-1-GN-15-000785

Vtlvl L. Price, 0Jttttet Cltrtc

OAK MORTGAGE GROUP, INC., § IN THE DISTRICT COURT

MICHAEL H. NASSERFAR, MICHAEL §

E. TASK, and TYCORD R. GOSNA Y, §

§

Plaintiffs I Counter-Defendants, §

§

v. § OF TRAVIS COUNTY, TEXAS

§

AMERIPRO FUNDING, INC., §

§

Defendant I Counter-Plaintiff. § 3451h JUDICIAL DISTRICT

TEMPORARY INJUNCTION ORDER

Ameripro Funding, Inc.'s ("'Ameripro") Application for Temporary Injunction, set tbrth

in Defendant and Counter-Plaintiff Ameripro Funding, Inc.'s Counterclaim and Sworn

Application for Temporary Injunction and Permanent Injunction, came on for hearing before the

Court on May 26 and May 27, 2015. Based on the pleadings, the evidence submitted, and the

argument of counsel, the Court finds that Ameripro is entitled to entry of a temporary injunction

against Plaintiffs and Counter-Defendants Michael H. Nasserfar ("Nasserfar"), Michael E. Task

("Task"), Tycord R. Gosnay (''0osnay1'). and Oak Mortgage Group, Inc. ("Oak Mortgage") as

set forth below.

The Court finds that, based upon the evidence, Ameripro has met its burden to establish

that it has a probable right of recovery and likelihood of success on the merits on its claims for

misappropriation of trade secrets a11d confidential and proprietary infonnation, conversion.

breach of fiduciary duty, tortious interference with contract, and breach of contract, in that

Counter-Defendants Nasserfar, Task, Gosnay, and Oak Mortgage have attempted to permanently

destroy Ameripro documents and files, and have taken from Amcripro's computer network and

premises confidential and proprietary information belonging to Ameripro (including but not

1111m llllllllltllllllllllllllllllltlltlllll\111111111

004074910

DC Bt'.15168 PG53

limited to Ameripro's pricing information, general ledgers, profit and loss statements, loan

profitability reports, statements of income, customer and referral lists and contact information,

builder preferences or builder contacts or cell phone numbers, pro formas. concession fees,

borrower information, transaction details, templates, loan set-up sheets, e-mails exchanged using

Ameripro servers, correspondence, and other information that had been stored on Ameripro 's

computer network or in Ameripro offices) (hereinafter "Ameripro Information").

The Court further finds, based upon the evidence, that Ameripro has met its burden to

establish that Ameripro will sufier a probable, imminent, and irreparable injury until trial on the

merits, absent entry of a temporary injunction, in that Ameripro has shown that the full extent of

injury to Ameripro if this Order did not issue would be very difficult to ascertain or quantify. a

future award of damages would not fully or adequately compensate Ameripro, Ameripro does

not have a legal remedy that is adequate in lieu of injunctive relief, and even to the extent that a

legal remedy might be available, its redress will be limited and inadequate. The Court further

finds that the balancing of the equities as between Ameripro and CounterMDefendants Nasserfar,

Task, Gosnay, and Oak Mortgage favors the issuance ofthis temporary injunction, and that this

temporary injunction is necessary to preserve the status quo between the parties pending trial on

the merits.

IT IS THEREFORE ORDERED that Counter-Defendants Nasserfar, Task, Gosnay, and

Oak Mortgage, employees of Oak Mortgage, and other entities acting or purporting to act in

participation or concert with them, arc commanded forthwith to:

(i) within three (3) days ofthis Order, provide to Roy Rector ofR3 Digital Discovery

(Ameripro's forensic computer expert) forensic images of all original source

media that contains or did contain Ameripro files or information (including but

2

224

DC BK15168 PG54

not limited to flash drives, disks, USB storage devices, external storage devices,

hard drives, cell phones, and laptops) (hereinafter collectively the "Media") in the

possession, custody, or control of Nasserfar, Task, and Gosnay (including in the

possession, custody, or control of their attorneys and/or Lee Whitfield of Digital

Discovery), including all bit by bit forensic copies or images. however and

whenever made, including but not limited to, aU such forensic images stored in

any of the following formats: EO 1. LO 1. dd, sO 1, ad 1 and/or gho. The forensic

images of the Media may be reviewed and analyzed by Roy Rector, and by

outside counsel of Ameripro at Graves Dougherty Hearon & Moody ("Graves

Dougherty") as Attorneys' Eyes Only under the Agreed Protective Order. and

Graves Dougherty may show forensic images to in-house counsel tor Ameripro so

long as the images relate to Ameripro. The Media from which the forensic

images are made will be preserved and held by Counter-Defendants' attorney,

Charles Bundren, as Attorneys' Eyes Only under the Agreed Protective Order. If

the parties' counsel can agree upon which information contained in the Media

belongs to the respective parties, without Court intervention, then the parties are

authorized to return the other party's infonnation to it or him. Ameripro will

provide to Mr. Bundren forensic images of the three laptops that Counter-

Defendants Nasserfar, Task, and Gosnay returned to Ameripro on January 15-16,

2015 (it was stated on the record that those forensic images were provided to Mr.

Btindren on May 28,2015 at the hearing).

(ii) desist and refrain from, directly or indirectly, using any of the Ameripro

Informatfon, including but not limited to any of the Ameripro Information

3

225

DC BK15168 PG55

contained on the Media, and from copying, purging, modifying, or destroying any

Ameripro Infonnation (except to make the forensic images for Roy Rector as set

forth above in this Order).

(iii) desist and retrain from, directly or indirectly. soliciting business from Brohn

Homes. Seaholm Residences, and Clark Wilson Builders.

IT IS FURTHER ORDERED that Ameripro remove any reference to Michael Nasserfar

(e.g.• videos, likenesses) from the Ameripro website.

IT IS FURTHER ORDERED that the Parties mediate this case no later than sixty (60)

days from the date of this Order. Such mediation shall take place in Austin, Travis County.

Texas and shall be conducted by a licensed attorney agreed upon by the Parties. Costs of the

mediation shall be shared equaJly by Counter-Defendants and Ameripro.

lT IS FURTHER ORDERED that this matter is set for trial on the merits on February 22,

2016, in the Travis County Courthouse, 1000 Guadalupe Street, Austin, Travis County, Texas

78701.

In accordance with Rule 684 of the Texas Rules of Civil Procedure, the Clerk shall issue

such temporary injunction order upon Ameripro filing with the Court a bond executed by it and

adequate sureties in the amount of $10,00.00. payable to Counter-Defendants, approved and

conditioned as the law requires and such bond shatl remain on file with the Court, as bond for

this Temporary Injunction Order. The Clerk of the Court shall forthwith issue a temporary

injunction in confonnity with the law and the terms of this order.

SIGNEDthis /5dayof ~ ,2015at3.: l~a.m.~.

~o&

HON. GISELA D. TRIANA

.=:

JUDGE PRESIDING

4

226

DC BK.15168 PG56

APPROVED:

GRAVES, DOUGHERTY. HEARON & MOODY, P.C.

401 Congress, Suite 2200

Austin, Texas 78701

(512) 480-5764/Fax (512) 536-9908

c·- !'·-o!

By: ~ ,6J. L~/if2&..4,.....

Susan P. Burton

State Bar No. 03479350

sburton(Qlgdhm.com

Eric G. Behrens

State Bar No. 02050700

ebehrens@gdhm .com

ATTORNEYS FOR DEFENDANT

AMERIPRO FUNDING, INC.

APPROVED AS TO FORM:

WM. CHARLES BUNDREN & ASSOCIATES LAW GROUP, PLLC

2591 Dallas Parkway, Suite 300

(214) 808-3555/Fax (972) 624-5340

By:------~------------------

Wm. Charles Bundren

State Bar No. 03343200

Charles@bundrenlaw.net

ATTORNEYS FOR PLAINTIFFS OAK MORTGAGE GROUP, INC .•

MICHAEL H. NASSERFAR, MICHAEL E. TASK AND TYCORD R. GOSNAY

5

227

CASE NO. 03-15-00416-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS

OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,

MICHAEL E. TASK, AND TYCORD R. GOSNA Y

Appellants

v.

AMERIPRO FUNDING, INC.

Appellee

Appeal from the 345th Judicial District Court

of Travis County Texas

APPELLANTS' APPENDIX

EXHIBIT 2

7/6/201511:54:50 AM

Velva L. Price

District Clerk

Travis County

CAUSE NO. D-1-GN-15-000785 0·1-GN-15-000785

OAK MORTGAGE GROUP, INC. IN THE DISTRICT COURT

MICHAEL H. NASSERF AR,

MICHAEL E. TASK

and,

TYCORD R. GOSNA Y,

345th JUDICIAL DTSTRlCT

Plaintiffs,

vs.

AMERlPRO FUNDING, INC., IRA VIS COUNTY, TEXAS

Defendant

PI.. AINTIFFS' AMENDED NOTICE OF ACCELERATED APPEAL

TO THE HONORABLE COURT:

1. OAK MORTGAGE GROUP~ INC. Michael H. Nassettar, Michael E.

Task and Ty R. Gosnay (all hereinafter refe1Ted to collectively as "'Plaintiffs'')

desire to appeal from the Temporary Injunction Order signed by The Honorable

Gisela D. Triana, Judge Presiding, in the above referenced civi I action on June 15,

2015.

2. OAK MORTGAGE GROUP, INC. Michael H. Nassetfar, Michael E.

Task and Ty R. Gosnay appeal to the Third Coutt of Appeals. Austin, Texas.

PLAI~TIFFS' AMENDED NOTICE 01<' ACCELERATED APPEAL PAGEl

233

3. The appeal of this case is an accelerated appeal because it is an appeal

of a Temporary Injunction Order pursuant to the Texas Civil Practice and Remedies

Code §51.104(a){4).

Respectfully submitted,

By: /s/ Charles Bundren

Wl\'1. CHARLES BUNDREN & ASSOCIATES

LAW GROUP~ PLLC

Wm. Charles Bundren, Esq.

Attorney-in Charge

State Bar No. 03343200

2591 Dallas Parkway, Suite 300

Frisco, Texas 75034

(214) 808-3555 Telephone

(972) 624-5340 Facsimile

e-mail: charles@bundrenlaw.net

ATTORNEY FOR PLAINTIFFS

CERTIFICATE OF SERVICE

The undersigned certifies that on this 6th day of July, 2015. all counsel of

record were served with a copy of this document in accordance with Rule 21 a of

the Texas Rules of Civil Procedure by serving the fo11owing:

Susan Burton, Esq.

State Bar No. 034 79350

GRAVES DOUGHTERY HEARON & MOODY

P.C.

40 l Congress., Suite 2200

Austin, Texas 78701

Telephone: (512) 480-5600

Telecopier: (512) 480-5862 (facsimile)

E-mail: sburton~Dgdhm.com

ATTORNEY FOR DEFENDANT:

PLAJ~TIFFS

1

AMENDED NOTICE 0}' ACCELERATED APPEAL PAGE2

234

_X_by the electronic filing manager pursuant to TRCP 21 a( a)( l ),

__ by certitied mail return receipt requested deposited with the United States

Postal Service on the date indicated above pursuant to TRCP 2la(a)(2),

_X_ by email at the email address indicated above pursuant to TRCP 2la(a)(2).

__ by commercia] de1ivery service deposited with - - - - - - - - on the

date indicated above pursuant to TRCP 2la(a)(2), and/or

__ by fax at the fax number indicated above pursuant to TRCP 2la(a)(2).

is/ Charles Bundren

Wm. Charles Bundren, Esq.

ATTORNEY FOR: PLAINTIFFS

PLAI~TIFFS' AMENDED NOTICE OF ACCELERATED APPEAL PAGE3

235

CASE NO. 03-15-00416-CV

IN THE COURT OF APPEALS

FOR THE THIRD DISTRICT OF TEXAS AT AUSTIN TEXAS

OAK MORTGAGE GROUP, INC., MICHAEL H. NASSERFAR,

MICHAEL E. TASK, AND TYCORD R. GOSNA Y

Appellants

v.

AMERIPRO FUNDING, INC.

Appellee

Appeal from the 345th Judicial District Court

of Travis County Texas

APPELLANTS' APPENDIX

EXHIBIT 3

7/8/2015 5:03:45 PM

Velva L Price

District Clerk

Travis County

CAliSE ~0. D-1-G~-15-000785 0·1-GN-15-000785

OAK MORTGAGE GROUP. INC.. § IN THE DISTRICT COURT

MICHAEL H. ~ASSERF AR, MICHAEL §

E. TASK, and TV CORD R. GOSNA Y, §

§

Plaintiffs I Counter-Defendants, §

§

~ § OF TRAVIS COUNTY. TEXAS

§

AMERJPRO FU~DJNG, INC., §

§

Defendant I Counter-Plaintiff. § 345tn JUDICIAL DISTRICT

COUNTER-Pl.AINTIFF Al\U:RIPRO FllNDING, INC.'S FIRST

AMENDED COUNTERCLAIM AND S\VORN APPLICATION FOR

TEMPORARY AND PERMANENT INJllNCTION, AND AMENDED ANSWER

TO THE HONORABLE JUDGE OF SAID COURT:

AMERIPRO FUNDING, INC. C'Ameripro''l respectfully files this its First Amended

Counterclaim and Sworn Application for Temporary and Permanent Injunction, complaining of

Counter-Defendants Michael H. Nasscrl11r, Michael E. Task, and Tycord R. Gosnay ("Individual

Counter-Defendants") and Oak Mortgage Group. Inc. ("Oak Mortgage"). and An1cndcd Answer.

TI1is Court entered a Temporary Restraining Order on May II, 2015 (the "TRO''), and a

Temporary Injunction on June 16, 2015 (the ..Temporary Injunction"}, based on Counter-

Defendants' theft of Amcripro's confidential information. violations of contractual non-

solicitation provisions, and other misconduct as described in those orders and detailed below.

Amcripro requests that the Court issue permanent injunctive relief lo restrain Counter-

Dercndants from engaging in similar misconduct, in addition to disgorgcmcnt and other relief set

forth herein. Amcripro would respectfully show the Court the following.

A. Introduction: Counter-Defendants' breach of fiduciary duty. misappropriation and

conversion. and breach of contractual ownership and non-solicitation provisions.

1. Amcripro is an Austin-based residential mortgage lender. The Individual

Counter-Defendants are lormer employees who \vorkcd at Amcripro 's branch office in Lakeway,

3

Texas. Nasscrfar served as Branch Manager fCJr the Lakeway branch. Task served as Sales

Manager and co"managed the branch. Gosnay was a loan oniccr and agent or Amcripro. Each

of the Individual Counter-Dcrcndants owed formal fiduciary duties to Amcripro during his

employment with the company.

2. On January 15-16, 2015, the Individual Counter-Defendants abmptly resigned

from Amcripro without prior oral or wl"itten notice. The following Monday, they opened a new

branch office for Ameripro's competitor, Oak Mortgage, two streets away.

3. Amcl"ipro subsequently discovered that the Individual Counter-Defendants had

been secretly transmitting copies of its confidential records to Oak Mortgage, beginning over tlt'o

months before they resigned. Oak Mortgage scanned and downloaded copies of Amc1ipro

reports onto its own computer network. Under contract, common law, and statute, all such

records were the exclusive properly of Amel"ipro, and the Individual Counter-Detcndants were

ban·ed from taking or disclosing that infom1ation, let alone to a competitor.

4. Over one month before they resigned, the Individual Counter-Defendants secretly

reached an agreement under which Oak Mortgage would pay their legal expenses "in the event a

law suit is lilcd" against them by Ameripro. The Individual Counter·Dcfendams continued

working as fiduciaries to Amcripro, however. and used lhcir position of trust with Amcripro to

funnel confidential information to their future employer. By the time they resigned (rom

Amcripro. the Individual Counter-Defendants had assembled and taken thousands of Amcripro

financial spreadsheets, inlcmal reports, and borrowct· data (which they loaded onto thumb drives

and cxtemal storage devices), as well as a bankers box full of Amcripro ·s internal monthly

general ledgers, loan profitability reports, pro formas. statements or income, lcdcrally-protcctcd

lists of Amcripro borrowers, and other conlidcntial property or Amcripro. The Individual

Counter-Defendants deleted hundreds of files and e-mails from Amcripro compuLers, including

4

approximately 911 customer files which Task deleted trom an Amcripro-issucd laptop.

5. The Individual Counter-Defendants also began working in concert with Oak

Mortgage to solicit customers and divert business away lrom Amcripro, again whik they were

still employed and under tiduciary obligations to Amcripro. Five weeks before the Individual

Counter-Defendants resigned from Amerlpro, Oak Mortgage e-mailed Nasser1ar and Task that

·•vou can maintain and solicit to your book of business, and your buildcr:realtor relationships.

You can maintain and solicit to your past customer database." In direct violation or their

fiduciary obligations. the Individual Counter-Defendants proceeded to solicit business secretly

on behalf of Oak Mortgage, even while they continued their employment with Ameripro.

6. For example, Nasscrlar c-mailed Oak Mortgage personnel several weeks before

his resignation from Ameripro, to report on his progress in "dropping in on all builder contacts.''

During Nasscrtar's employment with Amcripro, Oak Mortgage sent him "scripts" to usc in

contacting "All previous clients & database," ··Borrowers in Pipeline," and "Realtors in

Pipeline." Gosnay forwarded an internal Amcripro compilation of customer contacts and closing

preferences to his personal gmail account. lor later usc at Oak Mortgage, Still other texts and c-

mails show that the Individual Counter~Ddendant-; were secretly communicating with Ameripro

customers about their plans to open a competing branch office with Oak Mortgage. even \vhile

still employed with Ameripro.

7. Counter-Defendants' conduct violated multiple duties and prohibitions imposed

on them by contract, statute, and common law. The fact that the Individual Counter-Defendants

began disclosing confidential information to a competitor and soliciting on its behalf even be!'ore

they resigned is particularly unconscionable in light of the fiduciary obligations they still owed to

Ameripro. Oak Mortgage not only aided and abetted those breaches of liduciary duty, but

specifically pressed the Individual Counter-Defendants to supply it with copies or intemal

3

5

con tidential data, and provided scripts and other assistance to help Amcripro 's fiduciaries divct1

customers and business opportunities to Oak Mortgage.' The Individual Countcr-Dctcndants'

fiduciary duties, independent of the contractual non-solicitation and non-disclosure clauses they

signed, barred them lium engaging in such conduct.

8. The infonnation which Counter-Defendants stole provided a detailed blueprint of

the business operations or Amcripro's Lakeway oflicc, which enabled Counter-Defendants to

open a new competing branch in a single business day, less than one-quarter mile awuy. Leaving

aside the confidential nature of its inl(m11ation, Amcripro invested considerable time and

expense in developing the multitude of detailed financial records, spreadsheets. data

compilations, and proprietary forms. By unlawfully taking all of that work product. Counter-

Defendants not only misappropriated Ameripro 's property, but also Ameripro's investment of

time and money in creating it By acting in !lagrant disregard of their fiduciary duties over a

period of several months, Counter-Defendants succeeded in destroying the business operations at

Amcripro's Lake,vay branch, and usurping it for themselves.

9. As a consequence of Countcr-Dctcndants' multiple statutory, common law, and

contractual violations, Ameripro seeks actual and punitive damages against Counter-Dercndants

(including the remedy of disgorgemcnt from all Countcr-Dcfcndants),2 and permanent injunctive

rclicC as detailed below.

1

Fitlelity Nat. Title ins. Co. v. Hean ol Tex. Title Co., :2000 WL 13037 *6 (Tex. App.-Austin Jan. 6,

2000. pet denied) (not design. pub!.) (company 1.mgag\]d in fhlUd and "participated in or conspired to

commit a breach of fiduciary duty" when it "actively encouraged Margos to recruit her co-workers whtk

she was still employed" by a ditTcrcnt entity).

:In re Longview Ener:s.Y Co.,_ S.W.3d -' 2015 WL 2148353 *5 (Tex. 2015} ('"Disgorgement is an

equitable tbrtciturc" applicable if a fiduciary agent ~..:ompctcs with the principal, or usurps an opportunity.

or divctts an opportunity fi:om the principal, or breaches the ''relationship of trust." "The remedy

discourages disloyalty and strengthens fiduciary rdationships by 'strip[ping] the defendant of a wrongful

gain.'"); .ERI Consult. Engrs., Inc. t .. Swinnea, 31 X S.\V.3d R67. R73 (Tex. 2010) (same, and ewn if a

fiduciary did not obtain a benefit, he "may be required to tbrfcit the right to compensation" for his work);

Rcstarement (Th1rd) of Restirution and Unjust Enrichment §§ 40. 43 (conversion. breach of duty).

4

6

B. Background facts in support of Ameriprois equitable and legal claims, and answer.

10. Arneripro is a residential mortgage lending company. By the nature of its lending

business, Amcripro receives loan applications, social security numbers, credit reports, tax

records, asset descriptions, and other private information of consumers.

lndiv;dua/ Counter-Delendams ' access

to Ameripro 's co'!fidentia/ information

Il. Ameripro and its employees are required by law to protect the confidentiality of

such consumer information under the Gramm-Leach-Bliley Act of 1999, Rcgulatjon P, and other

applicable federal and State regulations which guard the J>rivacy of consumers.;

12. For example, under Regulation P, any "list, description, or other grouping'' of

consumers derived in whole or in part from nonpublic sources (such as borrower lists that

Ameripro compiles from its loan records or computer files) is federally protected infon11ation

and may not be disclosed, even if the same lisL could have been derived from publicly available

infonuation. In the course of their employment with Amcripro, the Individual Cmmlcr-

Defendants served as loan originators for Amcripro, and were given access to mortgage

applications, consumer credit scores, loan documentation, fists of Ameripro borrowers and their

loan nun1bers, and other consumer inl(mnation maintained on Ameripro's network which is

con1idential by statute.

13. Counter-Defendants were also given access to Ameripro's confidential and

proprietary infmmation, including monthly general ledgers, profitability reports, and pro fonnas.

The detailed financial and customer infom1ation in Amcripro's internal reports is not generally

known to its competitors, and gives Amcripro a competitive advantage in the marketplace.

3

Chapter 94 of the Orarnm-Leach-Biilcy Act of 1999 ("Privacy - Disclosure of Nonpublic Personal

lnfommtion'') is codified in patt at 15 U.S.C. § 6RO L er seq. Regulation P iscoditicd at I 2 C.P.R.§ I016

(Dec. 21.2011 ). etseq.

5

7

Disclosure of that data to a competitor, such as Oak Mortgage, would enable it to assess the

economic viability of opening an office in the same locale, and to replicate Amcripro's business

operations and jumpstart a competing branch. That is in fact what Counter-Defendants did.

Under both contract and common law, Ameripro

is the e::.:c/usive owner of'such information

14. In sworn testimony, Counter-Defendants admitted that the records they took from

Ameripro were confidential, that they had not obtained those records from any public source, and

that they instead downloaded or printed them from Amcripro 's password-protected computers.

15. Each of the Individual Counter-Defendants signed multiple contracts with

Ameripro. however, in which they agreed that Ameripro is the sole owner of all such property.

Attached as Exhibit A is a Hst of excerpts from a portion of the contracts that the Individual

Counter-Defendants signed with Ameripro, in which they contractually agreed:

(a) that Amcripro is the exclusive owner of all infom1ation to which they were

given access during their employment or which they themselves created,

(b) lhat all of their work product falls within the "work made for hire" doctrine

and is owned exclusively by Ameripro,

(c) that in the event Ameripro is not already deemed the sole owner of all such

information, the Individual Counter-Defendants conlractua!ly assign to

Ameripro any and all right, title, and interest they may have in any of the

information, again vesting exclusive ownership in Amcripro, and

(d) that they will not disclose that infonnation or use it for any purpose other

than pertbm1ing their duties at Ameripro, and upon the tennination of their

employment the Individual Counter-Defendants would return all copies of

Lhat infom1ation to Amcripro, and would not retain, usc, or disclose any

copies or extracts for any purpose.

6

8

16. The Individual Counter-Defendants also contractually agreed that ..all leads and

loans in process are Company's property," that they will not ''take any action to divert such loans

to a competitor or away fi·om Company." and that upon termination they would provide a

"'written account of any and all open leads. business prospects, and/or loans in process as of the

date" of his tem1ination.

17. The contracts which the Individual Counter-Defendants signed supplement the

protections that Amcripro has in its business information under common law. Even in the

absence of an enforceable contractual restriction, the Individual Counter-Defendants and those

acting in concert with them arc barred wtder Texas common law "from using for [their] own

advantage, and to the detriment of [their] fom1er employer, confidential infom1ation m: trade

secrets acquired by or imparted" to them in the course of their employment. 4

18. Likewise, even if any portions of Amcripro's confidential repons could

potentially have been derived from researching public records, Cowtter-Dcfendants were barrcd

from taking a shortcut and copying Ameripro 's compilations of that data. under both common

Jaw and the terms of their contracts. At common law, ..The question is not 'how could he have

secured the knowledge?' but 'How did he?''' Here the Individual Cowtter~Defendants admitted

5

that the information they took from Ameripro could not be tbund publicly. and that they copied it

from Ameripro's protected computer network rather than from any public source.

Individual Counter-Defendams also entered

into enjr)rceahle non-solicitation agreements

19. The Individual Counter~Defcndants' contracts with Amcripro also contain

statutorily enforceable provisions which bar Lhcm from soliciting Ameripro customers and

4

See. e.g., Hill v. McLmze Co., Inc., 2011 WL 56061 at *2 (Tex. App.-Austin 2011. no pet.) (not

design. publ.).

~ ld.

7

9

employees after their termination from the company. 6 Those provisions arc independent of

common law safeguards which bar employees (and certainly fiduciaries) from soliciting for a

competitor during ct11ployment. 7 Nasserfar's and Task's employment agreements provide:

"For a period of one year following the termination of the Employee's employment

with the Company, the Employee agrees that he will not, directly or indirectly, for

his benefit or for the benetlt of any other person, finn or entity, do any of the

following: (i) solicit from any customer, payor or supplier doing business with the

Company as of the Employee's tcnnination, business of the same or of a similar

nature to the business of the Company with such customer, payor or supplier; (ii)

solicit from any known customer, payor or supplier of the Company business oflhe

same or a similar nature to that which has been the subject of a known written or

oral bid, offer or proposal by the Company, or of substantial preparation \\-ith a

view to making such a bid, proposal or o1Ter, within six months prior to the

Employee's termination; (iii) recruit or solicit the employment or services ot: or

hire, any person who was known to be employed by, or a consultant of, the

Company upon tennination of the Employee's employment, or within six months

prior thereto, or (iv) otherwise knowingly interfere with the business of the

Company.''

The only exception to the contractual non~solicitation provision was for a person who had

already been a ..customer" of the employees prior to his employment with Amcripro (even then,

in light of their conunon Jaw fiduciary duties, they could not solicit any such preexisting

customers on behalf of themselves or for a competitor while they were still employed with

Ameripro).

20. On social media, Nasscrfar represented to the public that Amcripro's customers

include ''3 Texas based builders" for whom Amcripro was the lender (and for whom Nasserfar

6

The non~solicitation clauses arc also cnfon.:cable under Tex. Bus. & Comm. Code§ l 5.50, et seq. The

employment agreements promised access to confidential intbrmation. Once these employees were given

such access (including confidential customer files and Ameripro tinancial records), they became bound by

their reciprocal promise not to usc or disclose such information. 111at satisfied rhc "otherwise enforceable

agreement" provisions under Section 15 .50. Excerpts of those reciprocal agreements arc quoted in

Exhibit A to this pleading. The Texas Supreme Court expressly held that "clients' names. billing

infonuation, and pertinent tax and financial information'' constitut~~s confidential infmmation for purpost.::s

of enforcing non-compete provisions under Section 15.50. Mann Fmnkfort Srt:in & Lipp Advisors t•.

Fielding, 2g9 S.W.3d 844, 851 (Tex. 2009) (accounting). That holding applies with greater force here, in

light of the federal regulations which make client mortgage information confidential as a matter of statute,

in addition to Amcripro's OV\11 financial records to which Individual Counter-Defendants also had access.

Fideli~J', 2000 WL 13037 *6; ERI, 318 S.W.3d at 873; Longview. 2015 WL 2148353 *5 (Tex. 2015).

7

8

10

claimed to have built a "builder-centric'' model "developed here at Amcripro"), and "builder

partners and other referral groups" whom he stated had a "seamless & successful" mortgage

relationship with Ameripro. Likewise, Task admitted under oath that the non-solicitation

provisions of their contracts barred them from soliciting from Ameripro 's builder and realtor

8

referral sources, and publicly represented that multiple developers were ·'clients'' of Amcripro.

21. Similarly, Gosnay's ''Employment, Confidential Information and Invention

Assignment Agreement" with Ameripro provides the following non~solicitalion clause:

"Interference. I agree that during the course of my employment and for a period of

18 months immediately following the tcm1ination of my relationship with the

Company tor any reason, whether with or without cause, at the option either of the

Co()mpany or myself: with or without notice, I will not, either directly or indirectly,

interfere with the Company's relationships with any customers or clients of the

Company whom I served or othcrv.:ise had direct contact with during the course of

my employment. ln the event that I violate my obligations under this paragraph, I

agree that the 18~month time period will be extended by a period of time equal Lo

that period beginning when I began violating my obligations under this paragraph

and ending when the activities constituting such a violation came to an end."

Similar to Amcripro's contracts with Nasserfar and Task. Gosnay's contract also prohibited him

trom soliciting any employee of Amcripro for 18 months after his employment terminated.

Cotmter-D~f(mdanrs · th~ti r~(Ameripro 's confidential

b~formation commenced months befiJre the employees resigned

22. Counter-Defendants knew that their contracts with Ameripro barred them !rom

using, disclosing, or retaining copies of Amcripro's confidential records. and from assisting a

competitor while still employed with Amcripro, When Gosnay was offered a job in Febmary

2014, Nasserfar even called special attention to those provisions of his contract, writing:

"Employee Confidentiality and Assignment of Inventions Agreement. As with all

Company employees, you will be required as a condition of your employment with

the C.ompany, to sign the endosed standard Employee Confidentiality and

& Transcript of the May 11, 2015 hearing on Arneripro's TRO application, at 49-50. The same

testimony was introduced into evidence at the May 26-27, 2015 hearing on Amt.--ripro's Temporary

lnjw1ction application.

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Assignment of Inventions Agreement."

Nasserfar also advised Gosnay in writing:

"In addition, while you render services with the Company, you will not alisist any

person or entity in competition with the Company, in preparing to compete with the

Company or in hiring any employees or consultants of the Company."

23. Less than one year alier Nasscrfar wrote those words, all three Individual

Counter-Detbndants consciously violated those provisions of their contracts and their fiduciary

obligations. Oak Mortgage actively encouraged and participated in those breaches of duty.

24. Oak Mortgage e.-mailed Nasser(ar on October 30, 2014. asking him to provide

Oak with documents showing the ''currem year's sales production (unil'> & volume)" and the

"previous year's sales production (units & volume)" for Amcripro's Lakeway branch. Nasserfar

the same day e·mailed those totals for both years to Oak Mortgage, beginning a stream of

confidential information that he relayed to Amcripro's competitor over the next 2'lz months.

25. Nasserfar understood that his secret communication of confidential information

with Oak Mortgage subjected him to liability, and understood that his contracts with Amcripro

barred him from soliciting from referral sources. As part of the same October 30 e-mail

exchange, NasserJar gave Oak Mortgage a list of his "Concerns," which included "Lose Centcrra

builder account. Lose Brohn accoWll. Lose some PLR realtors. Lawsuit. Non compete clause.

Old client list with no contact to." Nasserfar also listed "Ramp up time" as one of his concerns.

Nonnally. setting up a new branch office would take several weeks (and typically months) to

accomplish. Over 2 1,~ months before Nasscrfar resigned from Amcripro, he and Oak Mortgage

were already discussing the ramp-up time to set up a competing office. CountcrMDefcndants,

however, ended up skipping the nom1al ramp-up rime by simply copying and downloading

Ameripro 's ledgers, reports, client lists, and even its proprietary templates and lonns.

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26. On November 12, 2014. tor example~ Oak Mortgage's senior vice president c·

mailed Nasscrfar that ''I will need some more information from you." and asked Nasscrfar to

provide multiple categories of internal Ameripro documents by t11at weekend. TI1e items Oak

Mortgage insisted upon included Amcripro's '"Year to Date P&L and Last Year's P&L,"

Amcripro's "J>roduct Mix" with a breakdown of units and volume for each type of loan product,

other Arneripro staff member's "Compensation" (even if Nasscrfar did not anticipate trying to

solicit them to leave), and Ameripro "Pricing'' for three "scenarios/deals" that Nasserfar was

working on at the time so that Oak Mortgage "can compare it to our pricing." Counter-

Defendants sought that infom1ation for Ameripro's Lakeway branch in particular, as they went

Jbrward with their plans to set up a competing office in the same location.

27. The following Monday, November 17, 20 J4, Nasser far gave Oak Mortgage a

copy of Ameripro's internal loan prolitability report at a meeting in Dallas. That report not only

supplied Oak Mortgage with confidential itemized fees and profits for Amcripro's office for the

preceding year, but also a year-to-date lisl of all or the names of borrowers and account numbers

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for that branch. Oak Mortgage's CEO scanned a copy of the report onto his computer the same

day. The Individual Counter-DeJendants also provided Oak Mortgage with an electronic copy of

an Ameripro loan profitability report, which Oak Mortgage's senior vice president loaded onto

his computer as well.

28. Oak Mortgage gave Nasscrfar a job description which stated that one of his duties

at Oak Mortgage would be to "[e]stablish" and manage the budget for Oak Mortgage's new

Lakeway branch. The Individual Counter-Defendants admitted in testimony that they supplied

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' The loan profitability rcporr was compiled from nonpublic loan tiles. That by itself would bar

disclosure under Regulation P, even if borrower names could have been obtained by searching deed

records. Moreover. even if Nasscrfar had compiled a list from public sources (he admitted he did not).

Regulation P also barred him from disclosing it ''in a manner that indicates that any ofth.: individuals on

the list is a consumer of a financial institution," such as Ameripro. The nonpublic intbtmation in the

report. such as fees paid by the individual consumers. also barred its disclosure to Oak Mmigagc.

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Oak Mortgage with copies of every monthly general ledger report tor 20 I4, giving a blueprint of

every budget item for Ameripro's Lakeway branch for the entire year, including itemized

expenses and credits. Like the other confidential information they took, that data was not

available from any public source, and instead was printed from Ameripro's computer network.

The lndividual Counter-Defendants continued funneling intormation to Amcripro 's competitor

over the following months, including a list of borrowers whose loans were still pending.

29. In the days immediately before they resigned from Amcripro, Counter-Defendants

intensilied their thefis of Ameripro conlidential intl."lmlation. In order to obtain access to

Amcripro's financial infonnation on the Accounting for Mortgage Bankers (AMB) network, a

person must usc his or her password to log onto Ameripro's computer network, and while logged

into that network, usc a second password to Jog onto the AMB network. As a Branch Manager,

Nasscrfar was the only employee at Ameripro's Lakeway office who had been given a second

password to log into the AMB system. The week they resigned, however, Nasscrfar and Task

jointly printed copies of Ameripro 's financial records from AMB, to take with lhcm Lo their new

Oak Mortgage office. They printed and downloaded Amcripro's internal records, including

general ledgers, profitability reportS, pro lotmas, borrmver records, and statements of income.

30. In addition to taking electronic copies ofcontidential records on thumb drives and

external storage devices, they took a bankers box or Ameripro internal reports and personnel

files when they resigned. Task admitted he later gave the bankers box to Gosnay at Oak

Mortgage's new offices, for him to scan as welL Among several thousand other Amcripro

reports, Nasscrlar downloaded copies or loan profitability reports for 2012,2013, and 2014 fium

Amcripro's computers, giving details of the fees and associated profits lor Ameripro during

those years in the same location where Oak Mot1gagc planned to open a competing office,

31. Some of' the most serious examples or Counter-Defendants' thefls include

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electronic copies of credit reports for Ameripro borrowers (listing the borrowers' social security

numbers, bank account numbers, and credit scores), and borrowers' loan applications (listing

their social security numbers, employers, income, and other protected consumer infom1ation).

Counter-Defendants also removed copies of personnel records for other Ameripro employees,

including salary information. They admitted that they had no excuse fbr taking such legally

protected consumer and personnel records with them upon their termination from Ameripro.

32. At least as early as December 10, 2014, Gosnay likewise began sending copies of

proprietary templates and fom1s from Ameripro's computer network to Gosnay's personal gmail

account, to use at Oak Mortgage. In one blatant example, Oak Mortgage forgot to remove

Ameripro's address at the boitom of the rcmns, before using the same template for Oak's new

office. By Januaty 13, 20 l 5, just two days before he resigned from the company, Gosnay was

still logging onto his computer at Ameripro and transmitting its confidential infommtion to his

personal gmail account, including details of Ameripro's client concession fees, builder contacts

and cell phone numbers, clients' title company preferences, transaction details. and other

compilations contained in Amet'ipro computer files, and additional proprietary templates and

tbm1s that Ameripro developed lor its business and maintained on its computers. 10 Gosnay then

tried to permanently delete that evidence on Amcripro's computer, including copies of his

forwarded e-mails. bclbre returning the laptop to Ameripro.

w Counter-Defendants have made the irrelevant argument that the identities of builders is information

that can be publicly obtained. CoU11ter-Dcfcndanrs' argument fails to insulate them from liability in at

least three respects. First, Counter-Defendants took Ameripro's llQD.-public compilation, which in tum

included non-public details such as pricing, builder preferences. cell phone numb~rs. and contact

information. Second, even as to any intom1ation that could have independently compiled thlm public

records, they chose instead to log onto Amctipro computers and take Ameripm 's compilation\·. Their

misappropriations sound in both tort and contract. Bancserrices Group, Inc. v. Strunk & Assoc.. 2005

WL 2674985 *3 (Tex. App. -Houston (14th Dist.]2005, pet. denied) (not design. pub!.) (mere fact that a

person supposedly could obtain the same information through legitimate means docs not deprive its

owner of recourse "from those who would secure possession of it by unfair means,'' including taking thm1

a computer to usc in a competing business). Third, the nmHolicitation provisions of their contracts bar

them from soliciting those customers, regardless whether they usc confidential infonnation in doing so.

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Solicitatton ofcustomet~\·.for a competitor. even

while still serving as .fiduciaries for Ameripro

33. As Nasserfar previously wrote Gosnay, dw·ing the Individual Counter~

Defendants' tenure with Ameripro they were not penniitcd to assist anyone ''in competition with

the Company;• or "in preparing to compete with ihe Company." In addition to transmitting

confidential infhnnation to Oak Mortgage, however, the Individual Counter-Defendants began

soliciting business on Oak Mortgage's behalf even while they were still emplo.ved at Amcripro.

34. Over one month before the Individual Counter-Defendants resigned ti·om

Ameripro, Oak Mortgage advised the Ameripro employees that they can ''solicit to your book of

business, and your builder/realtor relationships," and that they that they can ''solicit to your past

customer database." As a further encouragement tor the Individual Counter-Defendants to begin

acting against their principal, the following day Oak Mortgage agreed to indemnify the

employees if they were later sued by Amcripro. One week later, Nasscrfar compiled and c-

mailed Task a list of contact names for several of Amcripro's primary builder clients, including

Ccnterra Homes and Brohn Homes, and a lew days later, reported to Oak Mortgage that he was

driving 200 miles and "dropping in on aU builder contacts.'' (Nassertar reported that progress to

Ameripro's competitor, not to his employer Ameripro.)

35. By January 6, 2015, Oak Mortgage had sent Nasserlar scripts to use for

"Borrowers in Pipeline," "Rea) tors in Pipeline," and "All previous clients & database," including

the advantages of his moving to Oak Mortgage - again while Nasserfar was still employed at

Amcripro. 11 Nasserfar also advised existing Amcripro customers of their plans to open a new

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Counter- Defendants argued at the Temporary Injunction hearing that •·customer" as used in the non-

solicitation clauses of their contracts is limited to ''boJTowers.'' In testimony, however, they had

previously admitted that "customer" as used in the contracts include the builders which fom1ed the core of

Amcripl'O's business for that branch, and made similar admissions in social media and in c-mails.

including in Nasserfar's e·maillist of"'Conccn1s" quoted above. The Court rc;jectcd Counter-Defendants·

overly narrow det1nition. Even under Coumer-Dctlendants · definition. however, their conduct shows that

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Oak Mortgage office, and exchanged texts with builder personnel about standing down until his

resignation notice was received. (As discussed below, Task destroyed his text conmnmications,

erasing evidence of similar communications he had with Ameri pro customers.)

36. While they were still employed in management positions for Ameripro, Nasscrfar

and Task also set up meetings with builder customers and business prospects on behalf of Oak

Mortgage. While still Ameripro employees, they even began scheduling meetings to occur ajter

they resigned, again for the bene lit of Oak Mortgage.

37. Even if no contractual non-solicitation existed at all, Counter-Defendants'

conduct in secretly soliciting Ameripro customers -·"-during a time when they were still serving

in fiduciary roles for Amcripro -is a plain violation of Texas common law. l11eir thcll of

Ameripro's confidential information also assisted them in soli.citing Amcripro clients, enabling

them to open a competing office in just one business day, instead of the months it would

normally take to ramp up an ollicc and begin operations.. Although the Individual Counter-

Defendants were contractually required to give Ameripro a "written account of any and all open

leads, business prospects, and/or loans in process as of the date" of his tcm1inaLion, they also

breached that provision and ialled to provide any such list. After they resigned, they refused to

return calls from Amcripro or otherwise cooperate about upcoming closings, disrupting the

closings that were still in progress and injuring Ameripro's goodwill and builder relationships.

Counter-Dej(mdams ·destruction ofjites and

evidence, including after issuance of the TRO

38. Counter-Defendants also engaged in destruction of Ameripro files and evidence.

they made no pretense of trying to comply with the contracts or common law. Oak Mortgage sent

Nasserfar scripts to use for "Bonowers" in pipcJinc, and advised that the employees could solicit to their

''book of business" and "past customer database" - all of which would be baned even under their

definition. Moreover, regardless of the contractual definition, no employee (let alone a fiduciary) is

pennitted to solicit on behalf of a competitor while still working for his employer.

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TI1e same day that Nasserfa1· resigned on January 16, 20 15, he logged into Amcripro' s computer

network and began systematically deleting files, inducting almost 120 contacts in the Outlook

Contacts folder he had maintained at Ameripro. Nasserfar took additional steps to try to purge

the files trom Amcripro 's computer system altogether, by selecting the option to ''pcm1anently

delete" those tiJes from the "Deleted Jtcms" folder. Task deleted 62 folders (containing 911

customer files) from a laptop that Ameripro had issued to him, before returning it to the

company. Gosnay attempted to permanently destroy all of the evidence that he had been

forwarding Ameripro documents to his personal gmail account.

39. At least as early as December 11,2014, C()Untcr-Dcfendants knew of the potential

lawsuit with Amcripro, as cxempl.ificd by the indemnity that Oak Mortgage had previously given

the Individual Counter-Defendants while they were still fiduciaries of Ameripro. Remnants of

text messages produced by Oak Mortgage show that Task had tcxtcd with his co-conspirators

over the following month, including on the subject of contacting people whom he admitted he

was not allowed to solicit. Nevertheless, Task manually destroyed every lext message that he

had exchanged during his employment \'-'ith the other Counter-Defendants and with Amcripro

customers.

40. At the hearing on Amcripro's request for TRO on May It. 2015, Amcripro

brought Task's destruction of text messages to the Court's attention. In addition to ordering

Counter·Defendants to return all of Ameripro 's infom1ation in whatever medium they possessed

and/or took such infonnation, the Court specifically instructed Counter-Defendants "not to

destroy anything, period:' and later in the hearing repeated >+cto not destroy anything." Counter-

Defendants represented in open court that '"in the meantime, nothing is going to be destroyed."

The bard drive they supplied in response to the TRO, however, showed that Counter-Defendants

subsequently destroyed over 150 tiles, after the TRO issued, and sought to wipe out the evidence

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of that conduct in the unallocated space of the hard drive. Forensic analysis of the hard drive

shows that unallocated lblders have been cleaned and zeroed out: in other words, leaving aside

any destruction of information that might be shown in the original media, confidential

documents which they had copied onto the hard drive copy were deleted atlcr the TRO actually

issued. In the process of destroying such evidence, however, Counter-Defendants overlooked or

were unaware of a Master File Table on the same hard drive. which recorded their destruction of

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evidence after the TRO issued.

41. This Court has inherent auU1ority to punish such destruction of evidence even if

no TRO had been entered against Counter-Defendants. The tact that Counter-Defendants

destroyed additional evidence after this Court ~:ntcrcd the TRO, ho~.vcvcr, is contempt of court,

particularly in light of this Court's express conunand to Counter-Defendants at the TRO hearing

to desist from destroying anything "period.''

Upon their resignationsjl·om Ameripro, the Individual

Counter-Defimdants' actions have been as agents for Oak ~Mortgage

42. Upon their resignations from Amcripro, the lndividual Counter-Defendants all

became agents of Oak Mortgage. As of January 19, 2015, Nasscrfar was the Vice President of

Austin and Branch Manager for Oak Mortgage, Task was its new Austin Area Sales Manager,

and Gosnay was its Mortgage Loan Officer at the new Lake•way office.

43. As agents of Oak Mortgage, they kept the reams of confidential intbmtation they

took from Ameripro; ranging trom general ledgers to borrower credit reports, and in violation of

the non-solicitation provisions of their contracts, continued snliciting from Amcripro customers.

Counter-Defendants' conduct has been a continuing violation of statute, common law, and

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~l11c Table shows that 140 file folders were deleted after May 14, 2015 at 1:52 p.m., from the "COC-

002" folder (Michael Task's thumb drive), and that another 12 files were deleted on May 19, 2015. at

1:46 p.m., via the recycle bin of"COC-001'' (Michael Nasserfar's thumb <hive), ali after the TRO issued.

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contract. The entirety of Oak Mortgage's competing Lakeway office personnel, as listed on its

website, were in continuous possession of Amcripro's confidential infom1ation in the several

months before this Court issued a Temporary Injunction against them, and are preslmlcd under

Texas law to have used all such data.

C. Application for permanent injunctive relief (and for continued enforcement of the

Court's June 16, 2015 Temporary ln.junctioo against Counter-Defendants).

44. Amcripro incorporates by reference all factual allegations stated hereinabove.

Counter-Defendants, together with Counter-Defendants' agents, representatives, new

employcr(s), servants, employees, independent contractors, attorneys, and those persons or

entities in active concert or participation with them, are collectively retesTed to as the

"Restrained Parties."

45. Based on their conduct recited above, Counter-Defendants have taken confidential

and proprietary infom1ation belonging to Amcripro (including Amcripro's internal financial

reports, borrower credit reports and loan applications, pricing infonnation, client and referral

supplier lists, concession fees, builder contacts and cell phone numbers, clients' business

preferences, transaction details, proprietary templates, loan set-up sheets, document lbm1s,

correspondence, and other Amcripro compilations of infom1ation and lbrms that Ameripro

developed for its business), and have also attempted to permanently destroy copies of Ameripro

files, all in violation of Texas common law and the Individual Counter-Defendants' written

employment contracts. Counter-Defendants' conduct is causing. and unless enjoined will

continue to cause, irreparable harm to Amcripro.

46. Based on Counter-Defendants' conduct and misappropriation of information,

Ameripro has suffered, and unless Counter-Defendants and those acting in concert with them are

immediately enjoined from engaging in the tollowing actions. Amcripro reasonably !cars it is

likely to continue suffering imminent and irreparable hann, loss, and damage through Counter-

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Defendants' usc of Amcripro's confidential and proprietary information in competition against

Amcripro (including Amcripro's customer and referral suppliers), loss of customers and

customer goodwill through Counter-Delcndants' solicitation for a competitor, permanent loss of

customers and referral suppliers, and permanent damage to Ameripro's goodwill and business

reputation. Disclosure of the above confidential and proprietary information to Amcripro's

competitor Oak Mortgage, in addition to constituting misappropriation and conversion of

Amcripro's property, would give Counter-Defendants an unfair competitive advantage over

Amcripro. The only adequate, effective, and complete relief to Ameripro is to restrain Counter-

Defendants from further engaging in the following proscribed activities as set forth below.

47. Cowllcr-Defendants' conduct described above also constitutes misappropriation

of confidential and proprietaJ)' infonnation, conversion, breach of fiduciary duty, and breach of

contract, and as indicated in this counterclaim and sworn application, Ameripro has shown a

probable right of recovery and likelihood of success on the merits.

48. Pursuant to Tex. R. Civ. P. 680, et seq .. and Tex. Civ. Prac. & Rem. Code §

65.001, et seq., and in order to preserve the status quo during the pendency of this action.

Ameripro therefore requests the Court's continued enforcement of the Temporary lnjunction

issued in this cause, as well as issuance of a pcnnancnt injunction. ordering and immediately

enjoining Counter-Defendants and the other Restrained Pa11ies to do each of the loHowing:

i) ordering Counter-Defendants and the other Restrained Parties to immediately

return to Amcripro all documents and information they removed from Ameripro

(including but not Jimiled to any information that was contained on Ameripro

computers or in Ameripro files, Ameripro · s pricing information, client and

referral supplier lists, concession lees, builder contacts and cell phone numbers,

clients' business preferences, transaction details, proprietary templates, loan set-

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