now those requests for admission and the conclusion of the admission of that were judicial and mission are scattered throughout the record in compensated and design for any work performed on the drawings that were not near complete this course of action was necessary to protect the interest of clear admission that was dan wilson who determined that the best course of action was to paid last the former employee to complete the two drawing same question and that was h entire project that is our position i believe there was to oral testimony to that effect that they did in that district court though found that wilson made this offer my client accommodated everyone else except for dan wilson might i didn't understand what you find here that is inconsistent with with that version that wilson came up with drawn well the first thing that if you look at the judge the district court's decision them law school and efficient priests where he he decided that he would go and get it done in and i'm not saying that that makes it ok that it's just a concept and he decided that he would go ahead and do people knew that there was a non compete correct between its undisputed that they knew there was a non compete between latin and pun correct i don't know that i believe th did not know he didn't know know about the non compete he did not know about it so it doesn't even completely in the dark if if so if mr black was violating his not could be he was not aiding and abetting in that in some way because he shows undisputed that includes a test at trial and i'll ask the other side that question where can we go in the record to find out to look at the plans that were delivered to the to dan wilson homes to compare them to determine if they were substantially similar to the fit as built or that the built plans where do we go in the record for that because we have to do this to stanch early similar analysis ourselves near completion is totally equivalent to substantially similar ok that i have about take that is your first start but i think my first answer that my second answer is that we have included in your ex comparison side by side which is court has asked for our which  of the issue of substantial similar ok and that doesn't those are the definitive documents for spouses i thought there was some dispute about that those are the documents that we're supposed to use the ones in the record excerpts side by side yes or that gives you the type of side and you will see there that if you look at the overall form which is a part of the definition of an architectural design which is you look at the overall form the competition the spaces and the overall arrangement there are position is that no rational person could conceivably come to a conclusion that there was not deliberate player jurisdiction they up did your client give the auto cad software are did did mr lack take your company's auto cad software i know he had some a different version at home that i may have been his own person but did he take your eight point zero or your and that's undisputed that's correct ok so there's one other thing i'd like to quickly go either to to this core is the fact that the district court below really it was never got that fundamental idea and as a result this judgment cannot stand we're asking this court until i've got to read this and we're asking this court to rever the rental that everything is stated in the bridge there's clear infringement we're entitled to what's called the builders and we asked the court to reverse and read it thank you twenty minute section i have what plant i want to talk about what i really like to address some of the things that were just spoken about first there was this there's this column that that the district court that the judge cummings has taken senior status at the end of the year  understand copyright law at all you have a fundamental misunderstanding of the entire realm of copyright law that's not true judge cummings went through in the reason he was interested in who brought the design elements who brought the creative elements out there is because judge judge cummings was trying to get a handle on the license issue trying to get understanding of is this a non exclusive situation where where the the builder comes in and says i have app a project i already have the design going everything is in the works i now need to start getting my concrete guy and my framework guy my draftsman got in on this project already have the design already know what i'm going to do and so in that respect who brings in the creative elements out there are very important if you look at cases that came out like i a version shaver if you look at cases like the bourne versus disney case all of that was relevant the license issue he client is not responsible for any of these these deeds sure there's two types of copyright cases involving builders and architects generally the first type is a case where the art where the builder comes out and  steals a plan or takes a plan and use it multiple times and paying once those kinds of cases importantly for building that's the kit floors case that's the hollow case there's another type of case where the builder is the genesis of the project the builder is hired to develop a particular piece of property and the builder it brings in the design elements the builder brings in everything to do with it at some point he hires address me as a sub contractor and brings that draftsman to contribute to that project right but the problem is here they hired he hired one is the draftsman not black right so he might have been able to go on and finish his project is taking everything facts in your favor not in the favor he might have been able to finish his project was another dress just when using plans that were furnished to him the files and manipulate on his home computer with stuff he had taken from his office you know that that explained that those plans are the exact same plans that had been delivered to  ok it's no different than if you had a manuscript on paper that was printed out from word no well it's one versus p d f you can take the p d f version and do what you want from the last version you got is assuming that you do have some license to use it but you can't take the word imbedded version that has all kinds of matter data and things and do what you want in the autocad does have the meadow data  of that was put into evidence on trial is as to what was proprietary at all to high end matter fact the civic finding from the court that all of that how to use that how to use that metadata how to do all that that lack brought that from your prior independent contractor and finish and he wouldn't do it he said ok i'll pay you for what you've done and have and have somebody else when i have black finish it and he meant marshall and wouldn't do it and he finally said and this is something w wilson said look i'm going to get mr black to fit finish these because he's off on his own right he can do this and i'm going to pay you the entire purchase price the tire promises if you done one hundred percent of the work yourself and you're going to put your stamp on it it's going to be your copyright on it and after i get done building these they're yours they're your designs and mr huhne replied and said he would not accept that and that was specifically measure of present a few minutes ago but mr wilson was originally mr mr buns in the son's class hollies it how this will soon exonerate mr wilson had first of all he had no idea whatsoever about the non solicitation agreement duty after employment because mr lacker had nothing that was confidential he returned the paper files and all he had to call the client name and the client project doesn't he also have the  autocad version which is manipulable but he had the client name and the client project those are proprietary to the company we do a lot of non compete work in texas courts in the non compete work has gone away and the other council tell me what i think she's more it's your decision is he didn't know about it it's not much my position is it's something that was that was found out of the head can you help me with substantial similarity in the copyright they don't have to be identical  so can you help me why they're not and instantly similar absolute your honor what you had you had to say you had four planes that are issued and these are briefed heavily in the in the briefing where he goes through and takes the actual record and side by side comparison were done by both parties and looks at whether these items were similar or not first of all there was there was never any testimony about what were the creative illness or copy but that's partly but second there was a long period of testimony in  drawn by mr green street who isn't here today and that plane is owned by dan wilson homes that play in a builder in lubbock brought the plane to finish plans to dan and said build this house and then marshall hahn was allowed to make a copy and then he registered mr greene street the same time that all this was going on and that her house was almost finished she got married to fend for she had her husband i mean she'd been married husband died remarried and she worked we worked our house to include her husband and the and so that plan even though it was near come near completion was reworked in no longer substantially similar that was explained in there in mr locke testified that yes sometimes you have plans or almost finished something happens you go back to the drawing board and the other two planes or even close t depends upon substantial similarity in the substantially there has to be the creative elements that are copied into the new design and there's a lot of cases out there that talk about when you're talking about a house there's millions and millions of houses out there and there's only so many pieces you put the garage in the master suite whatever so you can't look at the general range of the rooms you have to look at their creative elements within the design there was no showing of those elements at trial and we showed a lot of changes that have been  at will employment agreement and looking at the face of the documents themselves they're completely void of any consideration now when i ask this court to imply consideration as the texas supreme court did in fielding and look to the job duties that are identified for lack and judge cummings did just that in the summary judgment order looking to those specific job duties we have design and we also have a reference to the cad computer system and that seems to be the element of contention that one relies on as a confidential element that allegedly lacked took away but even in the language of the non solicitation agreement and identified that as standard in fact judge cummings referenced that that hun could have drafted this at will employment agreement in any manner yet you standard cad installation and that while black may have some management of spec clients just having mere contact with clients mere contact with customers rather than an entire customer list that fact by itself does not rise to the level of a trade secret in fact this core evaluated when you can imply consideration in a non compete agreement and raymart and versus dog building supply company back in two thousand and eight just a year before fielding in fact and there it is changed substantially since then has true that the texas supreme court has expanded the covenants not to compete act that is absolutely true however this particular non solicitation agreement is an example of a naked restraint on trade and there are competing policy considerations in enforcing non competes and this is an example of when a non solicitation is attempting to be enforced with no consideration of can ok this is of brother bald non compet violation if it were in effect though isn't it it's the very client it's not some list you take and then you start call cold calling people later this is the very client did an ongoing process project on that particular project so there's none of the defenses like oh we knew each other otherwise in this is a different project if it's valid it's a ball violation isn't it your honor we disagree we believe that did not protect any of the confidential information and that that is a customer list that it expressly referenced as in his deposition was not taken away and the auto cad program which is a program used and was already owned on lax own computer he took the files from his work and didn't give them back when he left he brought the hard copy back but didn't get the computer by that enabled and that's undisputed this is not a clearly erroneous situation he took the files from his work knew that he needed to give hard companies back but serap to sleep kept the files on his computer so he could continue to work on the project the very project that his employer had been hired to do your honor and that is correct however hunt testified at trial on the page of the record thirty nine ninety seven through thirty nine ninety nine that he was well aware that lacked had files at home that he definitely expected lacke to have those electronic files at home but he knew that lack had a older version of autocad and that he had to convert those and in fact in hundreds deposition  thirty seven of hundreds deposition he acknowledged that he had also emailed auto cad files to clients and that i do understand it all by that's relevant to him using the information vicious subsequent business in direct competition with his employer email have allowed the employee to take home all sorts of information but if the employee in the ceases being employed uses it to directly post terminations of employment with confidential information and trade secret i'm still hung up on you know them compete certainly and we can certainly the two are very intertwined and it really turns on the district court factual determination that lacking never received any confidential information so even if on the face it on the face hypothetically of this court were to find that the non compete could be inforced it never became an forcible because i never transferred confidential information to lack any and the texas supreme court has noted that a non compete agreement even if it's illusory at the time that it's in or that it can become enforceable later this never became in forcible because there was never that confidential information that was transferred to lie and never for about it any conditions to those files when they were delivered to wilson and other home builders and home buyers on a weekly basis he never asked any of those customers to sign a nondisclosure they were not treated as confidential information or trade secrets and that really is the line that courts should draw whenever finding a breach of fiduciary duty after employment now is certainly had there been something before employment that would be different but the allegation is that this was used after employment well the allegation is  just the allegation is that it's after the allegation is that it's before but the judge the court found that it was after that's absolutely correct in fact judge cummings noted in footnote seven on page nine of his opinion that he weighed the credibility of lacs testimony concerning why he had these files transferred two days prior or a day prior to his terminations and that he found his testimony credible that lacke expected that he would continue on to be employed for two weeks and that during that time he would be able to finish the plans for wilson and that if we find that there is a judicial admission that is contrary to a factual finding of the trial court which controls well your honor here the court found consistent with the judicial attention on my question well they are inconsistent which controls as a matter of law or the matter of evidence for a review by this court we would agree that if there is a finding of fact that is entirely inconsistent with a judicial admission and that it's not explained by some other reason that that might be clear error however here the findings of fact that judge cummings made it were clearly consistent with the judicial admission because lack of committed that the file was transferred but the admission did not ask why they did mission did die asked for the purpose and as this court noted and navigon navigant consulting just a few years ago that in ev l you waiting and scrutinizing and employee employees actions shortly prior to their departure that those actions certainly can be shaded by that departure and that you have to look to the intent and hear the district court did just that and found last testimony credible now in looking at the breach of fiduciary duty in that case there was a customer out with a list bank looted the customer's contact information the orders that they had made the frequency the price list and that customer and that excuse me that employee took it away and then  used it in competition and here this court defined that that was a breach of fiduciary duty why isn't this even more of a greed just breach in that it's not just a list of the customer i mean it's a direct con the name of the contact information and the project itself here because there is no confidential trade secret information that was taken away and then used against the former employer it is not a breach of duty because as courts have noted there must be an element of secrecy and otherwise if there is not that fiduciary duty in on the date that the employment terminates and that asked judge cummings noted and it took a course of action to advance litigation and that is where than an equitable nature was found and unclean hands and it's what it why is that unclear if you believe the person's breached and you don't want to accept the settlement i mean why isn't it actually indication that wilson knew it was wrong because if he's just in a regular arm's length relationship with with the new draft with a draft or why would he offer to pay hunt for the work the draft or did he win over the and anything because he says he doesn't know about the non compete in the non solicitation why isn't that actually evidence that he knows that he's done something wrong here it was not your honor it was an attempt to avoid further litigation to essentially avoid today but it doesn't it doesn't play plays out either way i mean you can't say it's a of the good thing or a bad thing because it could be either well here judge cummings  credibility of the witness and determine that there were an unclean hands there is a motivation there to punish essentially wilson and lack for their content why is that unclean hands under the law to you to say i'm going to stand on my contract and enforce that to the ins of the earth how is that and if you believe you have a contract what kay says it's a clean hands to say i'm not going to settle well looking at the reality your honor and i see going on out of time i and we're looking at the reality of what kind of wanted to have happen here one hundred wanted is for these home buyers who themselves had designed their homes had brought magazine cutouts had even brought their own drawings wilson approached kind of first and laid out several options but i was not taking an option of unclean hands and saying no i'm going to enforce my contract is written in your honor and judge cummings here found but the most or good part on the confidentiality is you is we go back to judicial admissions paragraph seventeen of lax second amended answer in his case says offered full payment why didn't he saddle let me answer that question does does an employer have to settle the case and put a former employee in competition with  particularly for the circumstances of the job required here or why i was hired to do drafting he was hired to manage the cat files and he admitted  that they were were all all of the op that files were continuously maintained on that computer they could be only accessed by employers by employees who used them strange point and intellectual property law often someone comes into court and says i could have got the information i could or read it out of this patent i could have gotten off this copyright i could have got hey they were all for the benefit of what you have these admission and that's another point about this occasion with the discovery for over a year we we have all these requests for admissions