dissenting.
I respectfully dissent on the ground that the evidence does not support a probable right of recovery, and, therefore, the court abused its discretion in granting a temporary injunction. To obtain a temporary injunction, MMI must establish a cause of action and a probable right of recovery. Sun Oil Company v. Whitaker, 424 S.W.2d 216 (Tex.1968). To establish a probable right of recovery MMI must show that Keystone misappropriated a trade secret and that irreparable harm would come to it if a temporary injunction were not issued. The alleged trade secret in this case is a customer list — names and addresses if you will — that both Keystone and MMI contractually agreed to share, that neither party restricted the other in its use of, and that was readily obtainable by others in the same business. The alleged misappropriation did not result from a breach of confidence or from some other impropriety, but from a cessation of contractual relations between two independent contractors, Keystone and MMI. The alleged irreparable injury is simply the loss of insurance premiums, and that is compensable by a suit for damages.
The majority does not give the specific evidence that it claims supports a probable right of recovery. There is, however, sufficient evidence to refuse the granting of an injunction. To begin with, we must take the parties as we find them, viz., independent parties formerly bound by a contract. The record shows that the contract did not refer to the customer list as confidential, did not restrict Keystone’s access to the list, and did not restrict Keystone’s use of the list. The contract does not establish— either explicitly or by implication of law — a confidential relationship between the parties. It does, however, establish that they are independent contractors. It reads:
The parties are independent contractors with respect to each other. Nothing in this Agreement shall create or be construed to create the relationship of employer and employee, principal and agent or partners or joint venturers.
In short, there is no evidence that the parties had a confidential relationship or treated the customer list as a trade secret.
The absence in the contract of an agreement restricting disclosure of information and the absence of an agreement to preserve confidential information are factors courts can consider in determining whether to grant temporary injunctions based on alleged misappropriations of trade secrets. See Daily International Sales Corp. v. Eastman Whipstock, Inc., 662 S.W.2d 60, 63 (Tex.Civ.App. — Houston [1st Dist.] 1983, no writ). Moreover, the owner of the alleged trade secret must perform some affirmative act to protect himself and must make the “disclosee” aware of the confidential nature of the secret and of his duty to keep it confidential. Furr’s, Inc. v. United Specialty Advertising Co., 385 S.W.2d 456, 459 (Tex.Civ.App. — El Paso 1964, writ ref’d n.r.e.), cert. denied, 382 U.S. 824, 86 S.Ct. 59, 15 L.Ed.2d 71 (1965). There is no evidence of the confidential nature of the customer list, no evidence that it was treated confidentially by the partners, and no evidence that MMI told Keystone to keep the list confidential. Thus, MMI has not established that it has a cause of action and a probable right of recovery for misappropriation of a trade secret. I would hold that no injunction should have been issued.