Bruce Craig, Tyler Craig, and Tejas Vending, LP v. Tejas Promotions, LLC

ACCEPTED
03-16-00611-CV
12717534
THIRD COURT OF APPEALS
AUSTIN, TEXAS
9/15/2016 11:12:01 AM
JEFFREY D. KYLE
CLERK
03-16-00611-CV

BRUCE CRAIG, TYLER CRAIG, § IN THE COURT OF APPEALS
FILED IN
3rd COURT OF APPEALS
AND TEJAS VENDING, LP, § AUSTIN, TEXAS
Appellants § 9/15/2016 11:12:01 AM
§ FOR THE THIRD JUDICIAL
JEFFREY D. KYLE
v. § Clerk
§
TEJAS PROMOTIONS, LLC, § DISTRICT OF TEXAS
Appellee §

APPELLANTS’ SUPPLEMENT TO APPELLANTS’ EMERGENCY
MOTION TO STAY TRIAL COURT PROCEEDINGS

COME NOW Appellants Bruce Craig, Tyler Craig, and Tejas Vending, LP,

and file this Supplement to their Emergency Motion to Stay Trial Court

Proceedings that are to be held on Friday, September 16, 2016, during the

pendency of this interlocutory appeal, and would request that the Court enforce the

statutory stay in Civil Practice and Remedies Code Section 51.014(b) for

interlocutory appeals allowed under Civil Practice and Remedies Code Section

51.014(a)(12).

I.
Appellants Objected To Hearing; Trial Court Plans To Go Forward

1. Appellants filed their Objection to Court’s Consideration of Plaintiff’s

Motion for Leave to Supplement Record on September 15, 2016. See Exhibit A.

Appellants’ counsel notified the court’s staff attorney of the filing of the Objection.

Appellants’ Emergency Motion to Stay Proceedings
1
 2. The court’s staff attorney then notified counsel that the court “is going

forward with the hearing tomorrow at 11:00 absent a ruling from the Third Court

of Appeals saying that she should not do so.” See Exhibit B.

IV.
Prayer

WHEREFORE, PREMISES CONSIDERED, this Court should advance

consideration of the emergency motion, order a stay of the trial court hearing

currently scheduled for Friday, September 16, 2016, and enter any further

appropriate orders to enforce the statutory stay in Civil Practice and Remedies

Code Section 51.014(b) for interlocutory appeals allowed under Civil Practice and

Remedies Code Section 51.014(a)(12).

Appellants’ Emergency Motion to Stay Proceedings
2
 Respectfully submitted,

The Weichert Law Firm
3821 Juniper Trace, Suite 106
Austin, Texas 78738
(512) 263-2666
(512) 263-2698 - Facsimile

By:__________/s/ Darryl W. Pruett
Darryl W. Pruett
Texas State Bar No. 00784795
darryl@weichertlaw.com
George V. Basham, III
Texas State Bar No. 01868000
george@weichertlaw.com
Glenn K. Weichert
State Bar No. 21076500
glenn@weichertlaw.com

ATTORNEYS FOR APPELLANTS

Appellants’ Emergency Motion to Stay Proceedings
3
 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of this motion has been sent in
accordance with the Texas Rules of Civil Procedure, as noted below, on this 13th
day of September, 2016, to:

Matthew R. Beatty
Beatty Bangle Strama PC
400 West 15th Street, Suite 1450
Austin, Texas 78701
Telephone: (512) 879-5050
Telecopier: (512) 879-5040

Hand Delivery in Person or by Agent
x Electronic Service
Email Service
Courier Receipted Delivery
Telephonic Document Transfer
Certified Mail, Return Receipt Requested No.______________

/s/ Darryl W. Pruett
Darryl W. Pruett

Appellants’ Emergency Motion to Stay Proceedings
4
 9/15/2016 9:50:26 AM
Velva L. Price
District Clerk
Cause No. D-1-GN-16-001959 Travis County
D-1-GN-16-001959
TEJAS PROMOTIONS, LLC, § IN THE 261st JUDICIAL
Jonathan Sanders
Plaintiff, §
§
v. § DISTRICT COURT OF
§
BRUCE CRAIG, TYLER CRAIG, AND §
TEJAS VENDING, LP §
Defendants. § TRAVIS COUNTY, TEXAS

OBJECTION TO COURT’S CONSIDERATION OF PLAINTIFF’S MOTION FOR LEAVE
TO SUPPLEMENT RECORD AND MODIFY ORDER OF DISMISSAL

COME NOW Bruce Craig (“B Craig”), Tyler Craig (“T Craig”), and Tejas Vending, LP

(“Tejas Vending”), Defendants in the above-referenced cause, and files this their Objection to Court’s

Consideration of Plaintiff’s Motion for Leave to Supplement Record (the “Motion to Supplement and

Modify”), and would show the following:

I.

1. Plaintiff sued Defendants on May 6, 2016. The causes of action were breach of

contract, misappropriation of trade secrets, and conspiracy to misappropriate trade secrets. Plaintiff

also requested certain declaratory and injunctive relief. The conspiracy to misappropriate trade secrets

centered on Bruce Craig’s alleged violation of a nondisclosure agreement (the “NDA”) by providing a

list of Plaintiff’s purported customers (which it claimed was a “trade secret”) to the other Defendants.

Plaintiff alleged that Bruce Craig, “[i]n direct violation of the NDA, . . .disclosed the information

regarding Tejas Promotions assets and business structure to his son, and defendant in this action, Tyler

Craig.” Plaintiff alleged that Bruce Craig “further disclosed that information to an entity he created

with a deceptively similar name, Tejas Vending LP.”

2. Plaintiff further alleged that Defendants, based on the disclosure, then “pursued a course

of action designed to use Tejas Promotions’ Confidential Information to steal Tejas Promotions

business.”

Defendants’ Objection To Consideration of Motion Page 1
 3. Plaintiff alleged that the “Confidential Information” at issue pursuant to the NDA was a

trade secret.

4. Plaintiff also sued for conspiracy, alleging that “Defendants to this action conspired to

misappropriate Plaintiff’s trade secrets. . .”

5. The action that is the basis of the conspiracy claim is Bruce Craig’s purported

disclosure (or “communication”) of Plaintiff’s alleged trade secrets to Tyler Craig and Tejas Vending,

LP.

6. Plaintiff’s claim of conspiracy was a textbook example of something that is based on,

related to, or is in response to the Defendants’ exercise of the right of association. The “exercise of the

right of association” means “a communication between individuals who join together to collectively

express, promote, pursue, or defend common interests.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(2).

That is exactly what Plaintiff contended Defendants were doing. A “communication” includes “the

making or submitting of a statement or document in any form or medium, including oral, visual,

written, audiovisual, or electronic.” Tex. Civ. Prac. & Rem. Code Sec. 27.001(1). This would, of

course, include the customer list that Plaintiff alleged was communicated by Bruce Craig to Tyler

Craig and Tejas Vending, LP.

7. Plaintiff sued all of the Defendants for conspiracy based on, relating to, or in response

to, Bruce Craig’s communication of the alleged trade secrets to Tyler Craig and Tejas Vending, LP.

8. The conspiracy to misappropriate trade secrets claim was frivolous. Claims of conspiracy to

misappropriate trade secrets are pre-empted by the Texas Uniform Trade Secrets Act.

9. On June 29, 2016, Defendants filed a Motion to Dismiss pursuant to Chapter 27, Civil Practice

& Remedies Code.

10. In response, and presumably recognizing the frivolous nature of the conspiracy claim,

Plaintiff abandoned the frivolous, pre-empted conspiracy claim and some of the declaratory relief

Defendants’ Objection To Consideration of Motion Page 2
claims and substituted other declaratory relief claims. A hearing on the Motion to Dismiss was held on

August 4, 2016. No evidence was presented either by affidavit or live testimony regarding Plaintiff’s

attorney’s fees.

11. The Honorable Rhonda Hurley transmitted her letter ruling dated August 24, 2016,

stating her ruling denying the Motion to Dismiss and Defendants’ Plea to the Jurisdiction. She did not

award Plaintiff any attorney’s fees nor did she reserve the issue for any further consideration.

12. Because Plaintiff’s counsel had not prepared and circulated any proposed order by

September 1, 2016, Defendants’ counsel proposed a simple form of order that corresponded with Judge

Hurley’s letter ruling.

13. Plaintiff’s counsel disagreed with the form of order, and proposed one awarding

Plaintiff attorney fees even though no evidence of Plaintiff’s attorney fees had been presented at the

hearing on the Motion to Dismiss and even though Judge Hurley’s letter ruling did not mention

attorney’s fees.

14. Judge Hurley signed the Order denying the Motion to Dismiss on September 1, 2016.

Judge Hurley’s staff attorney stated to both counsel that Judge Hurley was “willing to entertain

attorney’s fees, but would need evidence,” thereby acknowledging that there had been no evidence

presented at the hearing on the Motion to Dismiss to support any attorney’s fees for Plaintiff.

15. Defendants filed their notice of appeal with the trial court clerk the same day. On that

same day, Defendants also requested that the trial court issue findings of fact and conclusions of law.

16. The thirty-day deadline for the trial court to rule on the Motion to Dismiss expired on

September 3, 2016.

17. On September 6, 2016, Judge Hurley’s staff attorney solicited legal authority from

counsel on the question of whether the trial court could conduct a hearing on attorney’s fees given that

the appeal had already been filed.

Defendants’ Objection To Consideration of Motion Page 3
 18. On that same day, Defendants’ counsel provided the court with caselaw and

Defendants’ legal argument based on the statutory stay of “all proceedings” in an interlocutory appeal

of an order denying a Chapter 27 Motion to Dismiss. Plaintiff’s counsel responded on September 7,

2016, asserting that Defendants’ counsel’s “procedural maneuvering” (presumably the mere act of

filing the appeal) did not prevent the trial court from modifying the order being appealed, citing to

Rule of Appellate Procedure 27.3, without ever addressing the statutory stay and the general rule that a

statute would override any conflicting Rule of Appellate Procedure.

19. On September 9, 2016, Plaintiff filed a “Motion for Leave to Supplement Record and

Modify Order of Dismissal [sic]” (the “Motion to Supplement and Modify”). In its Motion to

Supplement and Modify, Plaintiff requested an additional, evidentiary, hearing and that the trial court

modify the order that is currently being appealed “and award attorneys’ fees to Plaintiff consistent with

the evidence presented at the hearing.”

20. The trial court’s staff attorney emailed counsel on the morning of September 13, 2016,

informing the parties that Judge Hurley intended to conduct a hearing on the Motion to Supplement

and Modify on September 16, 2016, at 11:00 a.m.

21. Interlocutory appeals of orders denying a motion to dismiss brought under Chapter 27,

Civil Practice and Remedies Code are specifically allowed pursuant to Civil Practice and Remedies

Code Section 51.014(a)(12)(“(a) A person may appeal from an interlocutory order of a district court,

county court at law, statutory probate court, or county court that: . . .(12) denies a motion to dismiss

filed under Section 27.003;. . .”). Pursuant to Civil Practice and Remedies Code Section 51.014(b), an

appeal pursuant to Section 51.014(a)(12) “stays the commencement of a trial in the trial court pending

resolution of the appeal. . .[AND] also stays all other proceedings in the trial court pending resolution

of that appeal.” Civil Practice and Remedies Code Sec. 51.014(b).

Defendants’ Objection To Consideration of Motion Page 4
 22. Civil Practice and Remedies Code Sec. 51.014(b) is clear—an interlocutory appeal of

an order denying a Chapter 27 Motion to Dismiss stays not only the commencement of trial but “also

stays all other proceedings in the trial court pending resolution of that appeal.”

23. Defendants object to the trial court conducting any hearing on the Motion to

Supplement and Modify.

V.
PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants pray that the Court observe the

statutory stay and stay all proceedings during the pendency of the interlocutory appeal. Defendants

pray that the Court not consider or conduct any hearing on the Motion to Supplement and Modify.

Defendants pray for such other and further relief to which Defendants may be justly entitled.

Respectfully submitted,

The Weichert Law Firm
3821 Juniper Trace, Suite 106
Austin, Texas 78738
(512) 263-2666
(512) 263-2698 - Facsimile

By: /s/ Darryl W. Pruett
Darryl W. Pruett
Texas State Bar No. 00784795
darryl@weichertlaw.com

George V. Basham, III
Texas State Bar No. 01868000
george@weichertlaw.com

Glenn K. Weichert
State Bar No. 21076500
glenn@weichertlaw.com

ATTORNEYS FOR DEFENDANTS

Defendants’ Objection To Consideration of Motion Page 5
 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been sent in accordance with
the Texas Rules of Civil Procedure, as noted below, on this 15th day of September, 2016, to:

Matthew R. Beatty
Beatty Bangle Strama PC
400 West 15th Street, Suite 1450
Austin, Texas 78701
Telephone: (512) 879-5050
Telecopier: (512) 879-5040

 Hand Delivery in Person or by Agent  Courier Receipted Delivery  Telephonic
Document Transfer  Electronic Filing and Service  Certified Mail, Return Receipt
Requested No.

/s/ Darryl W. Pruett
Darryl W. Pruett

Defendants’ Objection To Consideration of Motion Page 6
The Weichert Law Firm Mail - RE: {EXTERNAL} Tejas Promotions v. C... https://mail.google.com/mail/u/0/?ui=2&ik=217d40dcc2&view=pt&searc...

Darryl Pruett

RE: {EXTERNAL} Tejas Promotions v. Craig et al.; Cause No. D-1-GN-16-001959
1 message

Michelle Roche Thu, Sep 15, 2016 at 10:34 AM
To: Darryl Pruett
Cc: "Matthew R. Beatty"

Mr. BeaƩy and Mr. PrueƩ,

Judge Hurley asked me to let you know that she is going forward with the hearing tomorrow at 11:00 absent a ruling from the Third Court of Appeals saying that
she should not do so. She also asked me to let you know that Mr. BeaƩy can present his aƩorney’s fees evidence by way of affidavit and Mr. PrueƩ will be given an
opportunity to cross examine.

Thank you.

Michelle Roche

Staff AƩorney for the Honorable Rhonda Hurley

98th District Court

Heman Marion SweaƩ

Travis County Courthouse

1000 Guadalupe St., Room 327

AusƟn, Texas 78701

Phone: (512) 854-7839

Facsimile: (512) 854- 9338

From: Darryl Pruett [mailto:darryl@weichertlaw.com]
Sent: Thursday, September 15, 2016 10:07 AM
To: Michelle Roche
Cc: Matthew R. Beatty
Subject: {EXTERNAL} Tejas Promotions v. Craig et al.; Cause No. D-1-GN-16-001959

Ms. Roche:

We have sent for electronic filing this morning the attached objection to the trial court considering the Motion to Supplement and Modify.

Darryl W. Pruett

The Weichert Law Firm

3821 Juniper Trace, Suite 106

Austin, Texas 78738
(512) 263-2666

(512) 263-2698 - Facsimile

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