that he could get those fees he just wasn't in a separate life and the fee was in the stipulation your father didn't didn't concede that he had the right to recover him or that we could the contest the fact that he was a valid party if ever a law applied in this case without question humble would not be considered a prevailing party in this case however the trial court was operating under diversity of years jurisdiction and therefore zero bound apply the state law the state of texas all the texas prevailing humble involve a court dismissal where there was a judicially sanctioned change in the legal relationship of the parties therefore the court this court must make in your guess to determine as best it can texas supreme court would decide and there are two cases that give this court some clues one is the eps case cited in the briefs where the texas supreme court considers whether a defendant is a prevailing party when the party non students a claim without prejudice under texas procedure and i know i'm speaking to no texas lawyers here or texas judges but under texas procedure eg plaintiff can dismiss our non suit a case at any time any time before introducing all of their evidence with or without agreement of the of the other party a non suit in texas terminates the case from the moment the don suit is filed in eps the texas supreme court held that the defendant is not a prevailing party unless the court determines the plaintiff took a non suit to avoid an unfavorable judgment the court also held in dicta that it had no doubt that a defendant who  beneficiary of the nonsuch with a with prejudice would be of a prevailing party however the court did not answer the central question presented in this bill and that is whether if there is a joint stipulation dismissal with pretty is signed by both parties does that make forty one a one a in state court and therefore we have to look at what a texas supreme court would have done had a rule such as forty one a one a plot in a texas proceeding and then in the in the in the eps case the eps case for a lot on significantly relied on federal court law in a turkey you know what a dismissal without prejudice would would how it would be treated and the court found that federal cases focusing on the meaning of prevailing riser rejected the idea that the mere fact of de of dismissal even with prejudice is sufficient to convert prevailing party status another clue of hope how the court might allow the texas court supreme court might decide this issue is in the case of intercontinental group versus katie holmes cited it two ninety five southwest third six fifty eight sixty fifty five in which the texas supreme court held that quote whether a party prevails turns on with the party prevails on the court to award it something either monetary or equitable close quote these two decisions the eps case in the k b homes case are in line with federal prevailing party principles and therefore it's reasonable to predict that the texas supreme court would decide that because the federal dismissal procedures are uniquely procedural and governed by federal law the parties agreed stipulation of dismissal under a federal procedure required by rule forty one  with predators would prevent you a con from two in the outside again would it not that's true but doesn't that have a legal effect and change the legal relationship that has that changed the legal relationship but the federal courts have consistently held since buchanan the supreme court's decision canon that it has to be a judicial change of the party's relationship not a voluntary change a private agreement between the parties it's put into the court record with no judicial involvement so because there was no judicial involvement under federal law there would be no question if this was a federal statute there be no question that definit was not a prevailing party again this court since it's sitting in diversity is having to make an eerie guess as to what the texas supreme court would do i the parties or a motion filed with the court to dismiss where the court makes the conditions that it considers proper in this case humble would not agreed to dismiss the case unless it was dismissed with predators and on pa to stipulate in that an order that and that's that's how the rule forty one a what a operates it's a stipulation of sniffle no for the court action is required it's automatic and that's all that occurred so there was no imprimatur of anything that the court said this guy wins or this other side wins there was nothing in the record to show who won the case humble failed to secure a judgment on the merits and selected to settle the case with the stipulation i missile he voluntary so voluntarily signed that dismissal with prejudice this voluntary dismissal was not judicially sanction and humble was not awarded any relief by the court and therefore he should not be considered a prevailing party is a matter  if they're known for the questions on this  lose a veto about what the supreme court might do in a case like this is apps and the other case is that i just found it is not new group versus k b homes it's study is two ninety five southwest or sixty at sixty five we're now have judge will it said in that opinion whether a party prevails turns on whether the party prevails upon the court to award something either monetary or equitable so those are the only clues  ccount it's just an alternative way to do his job of how to make it your guess because forty one a one there is no forty one a one a procedure it's state court it's all done through a unilateral voluntary non si without the other side's agreement and that was kind of the problem in this in this dismissal so if there if there are no other questions i'd like to turn to the second part of my argument and that is whether or not exist the only function remaining to the court is that of announcing the fact and dismissing the case the court held that no judgment can be rendered in a suit after the repeal of the act under which it was brought and prosecuted on although the trial court's jurisdiction based on diversity the same rule applies under texas law over seventy five years ago the texas supreme court held in dixon that if a right to recover depends entirely upon a statute it's repealed deprives the court of jurisdiction of the subject matter on september first two thousand and thirteen the texas legislature enacted the texas uniform trade secrets act it is undisputed in this case that the texas uniform trade secrets act repealed conflicting laws in this case really hinges on section three of the enabling act which is set out in the in the handout that i provided to the court this morning and it says that the change in law made that this act applies to a misappropriation of a trade secret mought made on or after the effect of this act the effective date was september first two thousand and thirteen it also has a savings clause that says the misappropriation of trade secret made before any continuing misappropriation beginning before the effected they did this act are governed by the law in effect immediately before the effective date of the act and so the question this court has to answer is when did the misappropriation occur before or after september first two thousand and thirteen and to answer that question the court needs to identify the elements of the misappropriation trade secrets claim and then determine based on the record when humbles misappropriation occurred in the court i'm sorry the statute provides a definition of misappropriation it's in the text of the depth of the statute and it defines  misappropriation by listing six alternative improper methods of acquisition use or disclosure of the trade secret and in the first section it's defines mr pro grade misappropriation means acquisition of a trade secret by improper means that while improperly retained automated supports trade secrets he did not improperly acquire them so you have to go to the second level down and incidentally that's what humble agreed was the second alternative applied in it his motion for summary judgment in the record cited three fifty four in the alternative second misappropriation definition in it defines misappropriation as the disclosure or use of a trade secret of another without express or plugged in said who at the time of the disclosure hughes knew or had reason know that the person's knowledge of the trade secrets was acquired under circumstances giving rise to the duty to maintain its secrecy and so those are the elements of the trade secret as appropriation and i think the record shows that he did not misappropriate the trade secret until after september first the morning may please the core the names would i'm representing the appellee s dave warren david umble and humble design l l c in this case there's only one simple question for the court to answer really in this case that is did the district court abuses discretion granted awarded attorneys fees to a defendant who was the recipient of a dismissal with prejudice as the prevailing party under a mandatory loser pay statute which is what the statute at issue here is that texas no mistake if they lose a pace that suit that mandates a more to fees to a prevailing defendant under both texas law and the and the circuit as of as interpreted the statute now that neither of the two arguments that were made in the appellant were even raised in the district court in response to a motion for attorney's fees in fact the first argument with regard to the judicial and permits are was never raised in the district court and all the first time that was ever raised was in appellant's brief to this court so we believe that whole argument has been waived and should not be even be considered at all the second argument with regard to the subject matter stiction was raised but was raised post judgment  rule sixty b motion for relief from judgment arguing that there was no subject manager stiction because the the judgment itself was void again we think that was basically a thinly veiled attempt to argue something they wish they had argued first on their judgment wasn't would but again we believe that this case has waiver written all over it for a number of reasons the third reason being as judge comment pointed out we specifically reserve the right to seek attorneys fees in the stipulation of dismissal that was filed which was signed off on by the appellant at that had they not agreed to put that in there or had they told my client or me we're going to object to your ability to see fees i would have sun stipulation all i want to make them force follow response the summary judgment which was do the very date the stipulation was filed the whole reason we entered the stipulations missa with prejudice and included that provision there was because my client always intended to seek recovery of those fees and it was never put i was never put on those knew it was the court put on notice that the pope was going to go back i gree with council that state law is going to control the award of fees here because this is the diversity case so we need to look at what is the tech supreme court likely to do with something like this we know under texas cases that a prevailing party under the theft liability act shall be awarded seats in every case in texas that is looked at that has said that that means the award is mandatory to any defendant who prevails without any record any requisite for my client to show that the claim was brought in bad faith ground frivolous we don't have to show that my client wins he gets a species period under the statute because the eps case i believe clearly shows what the texas supreme court would do in this particular instance the case which cites not need these to squarely show you do not need a judicial order a non shoot not reduced to a judgement is still sufficient believe that's what f says because and if you look at the actual statutory language of a non suit in texas law which is texas rule so procedure one sixty two i believe it clearly says that a non suit is affective upon filing without the need for a court order so it's exactly like a rule forty one federal stipulation of dismissal because they both are self effectuating when filed and don't require a court order so f has told us nonce it with brit with prejudice which is not judicially sanctioned just like the rule forty one dismissal we had here plaintiff seeking to recover fees from a defendant under the catalyst theory which basically supposes that a plaintiff is prevailing party if it achieves the desired result because that brought about a voluntary change in the defend its behavior neither of those have anything to do with the court said there has to be a change in the legal relationship of the parties for the party to be prevailing that's exactly what we have here when they were stipulation dismissal with prejudice filed it is it has race to to cut affect that is a permanent in alterable change in the relationship of the parties it is no less effect that had my client received an award on summary judgment or an award at trial that has the exact same effect so there was a permanent and alterable change between the parties on the stipulation of  missal with prejudice was filed and that is not changed and we can and in fact this court not none of the cases i've cited it involves specifically a stipulation of dismissal with with prejudice on the rule forty one but this court  twelve b six context in a stipulation of dismissal that was signed up by the court and again in all those cases there was scored signed off but the similarity between those cases in this case is that there was never a ruling on the merits in any of those cases and in all of those cases every single one of them the fifth circuit held at the predefined it was the prevailing party the only difference here is whether or not the judge signed off on order or not but the effect is the same again the race judicata effect is the exactly the same whether that whether the district court signed off on it or not so we believe it's clear that under x and under the precedent of this court that the supreme court texas would hold that a dismissal with a stipulation dismissed with prejudice would confer prevailing party status on my client and would moving to the second argument which is the that the judgement is purportedly only for lack of subject matter jurisdiction again we believe that argument was waived as it wasn't raised until a post trial argument but  liability act that was never modified it was never withdrawn it was never changed at all in fact the complaint actually pled that those actions occurred that the alleged mis procreation trade secrets took place precepts or one and thirteen which is when the statute was changed that's what was put that's what was before the district court when it ruled on a motion for for judgment for its attorneys fees so that's what the court had to look at the claim was still live claim and therefore it ruled that  what the public is arguing is that they can go back and post judgment and introduce evidence to divest the court of jurisdiction after the fact notwithstanding what was in the pleading there's absolutely no case law that i'm aware do they cite any that would allow the district court to do what appellant is asking the court to do here which is go back post judgment and look at evidence as to whether or not the claim was a viable want to not they brought the claim if it was not a viable claim it could have been dismissed at any time but the fact of matter is it was a live claim at the time that the court into the judgment and not point the court to the spear martin case which was an opinion by judge chains out of this court two years ago as to judge heads and said no no no that was never ruled on at that the fact of the matter is at the lodge a complaint at the time ruled on the motion for judgment for fees the claim was still played and we had never ruled it was preempt it was exactly the same situation here at the time the motion for judgment was signed for fees was signed the claim was stall i've won the court had never ruled that that claim was preempted by law or otherwise no longer a viable one so that's all the court had to look at to determine whether the claim existed but even if you want to look at the evidence even if you want to take the quantum leap i'm going where powell wants the court to go you can look at the evidence and the evidence that they picked is cited actually shows that the death of trade secrets occurred in july two thousand and thirteen and based on the savings is section one thirty four zero two the theft liability act includes a number of things that constitute a violation one of which was violation of texas penal code section thirty one point five which is theft of trade secrets that was a violation of  bodi act up until september when she doesn't thirteen that's exactly what was played here that's exactly what the evidence shows the evidence and the record which again is the evidence that they cited ironically is the evidence that my client put forth in support as much judgment but regardless the evidence was in the record and the evidence was that my client left the appellant's employ on july seventeenth doesn't thirteen the evidence was that on the day he left he took with him project files quotes and other documents and then  used those for his own business now setting aside whether there's even constant rate secrets which of course we argue they didn't the fact of matter is that's what they played was the violation the theft of trade secrets with when my client left and took that information under the definition of theft of trade secrets under the texas thirty one of five of the texas penal code and that took place precept number one so even if you want to look at the evidence the evidence is clear that the alleged theft took place precept number one and then therefore that statute remained in effect and certainly didn't divest the district court of subject matter jurisdiction to determine the issue means acquisition of the trade secret by improper means is the first definition hubbell did not acquire the trade secret by improper means he was provided those trade secrets in the normal course of his employment and while he may have improperly retain them after returning to his employment he did not improperly acquire them he applied them lawfully so you have to go back to the next definition of the category of trade secrets and that is a definition of user disclosure trade secret and it is undisputed the the council suggested we did not raise this these the issues in the trial court but we did we did not cite book camera but we did raise the issue in the response of the motion for summary judgment at the record site five ninety seven ninety eight and in fact the  addressed these arguments and it's order at the record site six thirty four in addition to fiserv it is held that issues may be raised for the first time in a post judge a motion most post judgment motions to the trial court and whether a judgment is void can be raised at any time even on appeal so i think the waiver arguments are are not well taken the the other thing did my counsel pop opposite said was that you know the court should focus its attention on the pleading that's not how the court decides jurisdiction at all you know any kind of case the court has to look at the evidence apart can't plead themselves in the subject matter jurisdiction or agree that the court has a better jurisdiction it has to be based on the evidence and that that's why you have to look at the evidence it was taken without prejudice in eps in eps it was taken without prejudice and the whole issue in that case was whether or not that that that nonces was taken for the sole purpose of avoiding a adverse judgment in the court trial court to determine whether there was some abuse of the system in him whether there was abuse of conduct or bad faith conduct so that's what that eps case was a was about there were no texas cases where a judicial determination was made and guess now when this case was didn't dismissed by agreement there was no judicial determination of any who actually won the case the parties could have agreed to dismiss for any number of reasons including for the reason the we that we offered evidence in the in dismiss with pretty is what i was really alluding to is the language reserving the right for the attorneys to be mean it could have been a dismissal with prejudice but that contains no language about reserving or not to fight another day parties negotiated the language and it's it's there in kind of it was a red flag oh no no no no no no danger if we agree to dismiss pretty boom you've got to come in late and argue there is a case ten