NO. 03-15-00064-CV 

IN THE COURT OF APPEALS FOR THE 

THIRD DISTRICT OF TEXAS 

AT AUSTIN, TEXAS 

ELITE AUTO BODY LLC d/b/a PRECISION AUTO BODY, REY R. 

HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN, 

Appellants 

v. 

AUTOCRAFT BODYWERKS, INC. 

Appellee 

ON APPEAL FROM THE 345th JUDICIAL DISTRICT COURT 

TRAVIS COUNTY, TEXAS 

TRIAL COURT CAUSE NO. D-1-GN-14-004535 

HONORABLE TIM SULAK, PRESIDING JUDGE 

BRIEF OF APPELLEE 

James G. Ruiz 

State Bar No. 17385860 

jruiz@winstead.com · 

WINSTEAD PC 

401 Congress A venue, Suite 2100 

Austin, Texas 78701 

(512) 370-2800 

(512) 370-2850 (facsimile) 

ATTORNEYS FOR .APPELLEE 

ORAL ARGUMENT REQUESTED 

1 

ACCEPTED

03-15-00064-CV

4967054

THIRD COURT OF APPEALS

AUSTIN, TEXAS

4/21/2015 11:11:07 AM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 4/21/2015 11:11:07 AM JEFFREY D. KYLE Clerk
IDENTITIES OF PARTIES AND COUNSEL 

The following is a complete list of the names of all parties affected by the 

trial court's Order Denying Defendants' Motion to Dismiss Pursuant to Chapter 27 

of the Texas Civil Practice and Remedies Code and their trial and appellate 

counsel: 

APPELLANTS: 

Elite Auto Body, LLC d/b/a Precision Auto Body, Rey R. Hernandez, Yesica Diaz, 

and David Damian 

TRIAL & APPELLATE COUNSEL: 

Rick Harrison 

Sam King 

Dale L. Roberts 

FRITZ, BYRNE, HEAD & HARRISON, PLLC 

98 San Jacinto Blvd., Suite 2000 

Austin, Texas 78701 

(512) 476-2020 

(512) 477-5267-Fax 

APPELLEE: 

Autocraft Bodywerks, Inc. 

TRIAL & APPELLATE COUNSEL: 

James G. Ruiz 

Jacylyn G. Austein 

WINSTEAD PC 

401 Congress A venue, Suite 2100 

Austin, Texas 78701 

(512) 370-2800 

(512) 370-2850 -Fax 

11 
STATEMENT REQUESTING ORAL ARGUMENT 

Appellee herein requests the Court grant oral argument on the appeal of this matter. 

111 
STATEMENT OF THE CASE 

Nature of the Case: Autocraft Bodywerks, Inc. brought suit against Appellants 

for misappropriation of trade secrets, violation of Chapter 

134A of the Texas Civil Practice & Remedies Code, unfair 

competition, breach of fiduciary duty, and civil conspiracy 

arising out of David Damian's wrongful disclosure and use 

of Autocraft's confidential business and trade secret 

information after the termination of employment to provide 

his new employer, Precision Auto, an unfair advantage in 

the marketplace. In the present action, Autocraft seeks to 

enjoin any future improper disclosure and use by Appellants 

of its confidential business information and trade secrets. 

Appellants sought to dismiss the suit under§ 27.003 of the 

Texas Civil Practice & Remedies Code asserting that 

Autocraft' s action attempts to interfere in their right to free 

speech and free association. The trial court denied 

Appellants' motion to dismiss. 

Trial Court: 

Trial Court 

Disposition: 

Parties in the 

Court of Appeals: 

The Honorable Tim Sulak, Presiding Judge for the 345th 

Judicial District Court of Travis County, Texas. 

The trial court entered its Order Denying Defendants' 

Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil 

Practice and Remedies Code. 

Appellants- Elite Auto Body, LLC d/b/a Precision Auto 

Body, Rey R. Hernandez, Y esica Diaz, and David Damian 

Appellee- Autocraft Bodywerks, Inc. 

IV 
TABLE OF CONTENTS 

IDENTITIES OF PARTIES AND COUNSEL ........................................................ II 

STATEMENT REQUESTING ORAL ARGUMENT ........................................... .III 

STATEMENT OF THE CASE .............................................................................. IV 

BRIEF OF APPELLEE ..................................................................... -........................ 1 

ISSUES PRESENTED .............................................................................................. 2 

STATEMENT OF FACTS ........................................................................................ 3 

SUMMARY OF ARGUMENT ................................................................................. 5 

ARGUMENT ........................................................................................ -..................... 7 

I. STANDARD OF REVIEW ............................................................................. 7 

II. TRIAL COURT CORRECTLY DENIED APPELLANTS' MOTION 

TO DISMISS UNDER CHAPTER 27 OF THE TEXAS PRACTICE & 

REMEDIES CODE BECAUSE APPELLANTS FAILED TO MEET 

THEIR BURDEN OF PROOF ........................................................................ 8 

A. AUTOCRAFT'S MISAPPROPRIATION OF TRADE 

SECRETS, UNFAIR COMPETITION, AND BREACH OF 

FIDUCIARY DUTY CLAIMS DO NOT IMPLICATE THE 

TCPA ..................................................................................................... 8 

1. PRIVATE SPEECH NOT PROTECTED UNDER THE TCP A ........ 10 

2. THE TCP A DOES NOT PROTECT THE DISCLOSURE OF 

TRADE SECRETS ............................................................................. 13 

B. EVEN IF THE TCPA WERE OTHERWISE APPLICABLE 

TO AUTOCRAFT'S TORT CLAIMS, THE COMMERCIAL 

SPEECH EXCEPTION IN §27 .01 O(b) PREVENTS DISMISSAL ... 17 

III. EVEN ASSUMING THE TCP A APPLIES TO APPELLEE'S CLAIMS, 

AUTOCRAFT MET ITS BURDEN OF PROOF TO PREVENT 

DISMISSAL OF ITS CLAIMS ..................................................................... 28 

v 
PRAYER .................................................................................................................. 25 

CERTIFICATE OF SERVICE ................................................................................ 26 

CERTIFICATE OF COMPLIANCE ....................................................................... 27 

VI 
TABLE OF AUTHORITIES 

Page(s) 

Am. Motors Corp. v. Huffstutler, 575 N.E.2d 116 (Ohio 1991) ................................... 14 

Anderson Chern. Co. v. Green, 66 S.W.3d 434 (Tex. App.-Amarillo 

2001, no pet.) ........................................................................................................... 16, 22, 23 

BBB of Metro Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345 

(Tex. App.-Houston [1st Dist.] 2013, pet. denied) ................................................... I2 

Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464 (Tex. 

App.-Texarkana 1998, pet. denied) ............................................................................. 24 

Cheniere Energy, Inc. v. Lotfi, 449 S.W.3d 210 (Tex. App.-Houston 

[1st Dist.] 2014, no pet.) ............................................................................................... 8, 12 

Cherne Indus. Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81 

(Minn. 1979) .................................................................................................................. 14, 15 

Cohen v. Cowles Media Co., 501 U.S. 663 (1991) .......................................................... 14 

Combined Law Enforcement Ass 'n of Tex. v. Sheffield, No. 03-13-00105-

CV, 2014 WL 411672 (Tex. App.-Austin Jan. 31, 2014, pet. filed) .................. 12 

Computer Assoc. Intl., Inc. v. Altai, Inc., 918 S.W.2d 453 (Tex. 1996) ..................... 22 

Coward v. Gateway Nat'! Bank, 525 S.W.2d 857 (Tex. 1975) ..................................... 19 

Dodson v. Watson, 220 S.W. 771 (Tex. 1920) .................................................................. 19 

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 

105 S. Ct. 2939, 86 L. Ed. 2d 593 ( 1985) ..................................................................... I o 

Garth v. Staktek Corp., 876 S.W.2d 545 (Tex. App.-Austin 1994, writ 

dism'd w.o.j.) ....................................................................................................................... 14 

Haygood v. De Escabedo, 356 S.W.3d 390 (Tex. 2011) ................................................ 19 

Hyde Corp. v. Huffines, 158 Tex. 566,314 S.W.2d 763 (Tex. 1958) ......................... 21 

In reAssociated Indep. Marketers Inc. of Am., Case No. 92-4941, 

1993 U.S. App. LEXIS 41111 (5th Cir. May 10, 1993) ........................................... 21 

Vll 
James v. Calkins, 446 S.W.3d 135 (Tex. App.-Houston [1st Dist.] 2014, 

pet filed.) ............................................................................................................................... 19 

Jardin v. Markland, 431 S.W.3d 765 (Tex. App.-Houston [141h Dist.] 

2 0 14, no pet.) ....................................................................................................... 8, 1 0, 11 , 12 

K&G Oil Tool & Serv. Co. v. G&C Fishing Tool Serv., 158 Tex. 594, 

314 S.W.2d 782 (Tex. 1958) ............................................................................................ 22 

KTRK Television, Inc. v. Robinson, 409 S.W.3d 682 (Tex. App.-Houston 

[1st Dist.] 2013, pet. denied) ............................................................................................... 8 

Lammons Gasket Co. v. Flexitallic LP, 9 F. Supp. 3d 709, 712 (S.D. Tex. 

2014) ...................................................................................................................................... 20 

Molinet v. Kimbrell, 356 S.W.3d 407 (Tex. 2011 ) ............................................................. 8 

Rivers v. Johnson Custodial Home, Inc., No. A-14-CA-484-SS, 2014 

WL 4199540 (W.D.Tex. Aug. 22, 2014) ...................................................................... 11 

Prudential Ins. Co. v. Krayer, 366 S.W.2d 779 (Tex. 1963) ......................................... 19 

Rodriguez v. Printone Color Corp., 982 S.W.2d 69 (Tex. App.-Houston 

[1st Dist.] 1998, pet. denied) ............................................................................................. 19 

Rodriguez v. Wal-Mart Stores, Inc., 52 S.W.3d 814 (Tex. App.-San 

Antonio 2001), rev'd in part on other grounds, 92 S.W.3d 502 (Tex. 

2002) .............................................. ; ....................................................................................... 24 

Rosales v. H.E. Butt Grocery Co., 905 S.W.2d 745 (Tex. App.-San 

Antonio 1995, writ denied) .............................................................................................. 19 

Russell v. Russell, 865 S.W.2d 929 (Tex. 1993) ............................................................... 19 

Schimmel v. McGregor, 438 S.W.3d 847 (Tex. App.-Houston [1st Dist.] 

2014, pet. filed) ............................................................................................................. 18, 19 

Southwestern Energy Prod. Co. v. Berry-Helfand, 411 S.W.3d 581 (Tex. 

App.-Texarkana 2013, pet. filed) ........................................................................... 20, 21 

Trilogy Software v. Callidus Software, Inc., 143 S.W.3d 452 (Tex. 

App.-Austin 2004, pet. denied) .................................................................................... 20 

United States v. Morison, 844 F .2d 1057 (4th Cir. 1988) ................................................ 15 

Vlll 
United States Sporting Prods. V Johnny Stewart Game Calls, 

865 S.W.2d 214 (Tex. App.-Waco 1993, writ denied.) ......................................... 21 

Whisenhunt v. Lippincott, 416 S.W.3d 689 (Tex. App.-Texarkana 

2013, pet. filed) ................................................................................................... 7, 10, 11, 12 

STATUTES 

Chapter 27 Of The Texas Civil Practice & Remedies Code ................................... passim 

TEX. Crv. PRAC. & REM. CODE§ 27.001(2) ............................................................. 9, 11, 12 

TEX. Crv. PRAC. & REM. CODE§ 27.001(3) ......................................................................... 9 

TEX. Crv. PRAC. & REM CODE§§ 27.001-.011 ................................................................... 5 

TEX. Crv. PRAC. & REM CODE§ 27.002 ............................................................................ 5, 9 

TEX. Crv. PRAC. & REM CODE.§ 27.003 ........................................................................... 6, 7 

TEX. Crv. PRAC. & REM. CODE§ 27.003(a) ......................................................................... 7 

TEX. Crv. PRAC. & REM. CODE§ 27.005(b) ............................................................... 7, 8, 10 

TEX. Crv. PRAC. & REM CODE§§ 27.005(b) and (c) .......................................................... 8 

TEX. Crv. PRAC. & REM. CODE§ 27.006 ............................................................................. 18 

TEX. Crv. PRAC. &REM. CODE§ 27.010(b) ............................................................. 6, 17,18 

TEX. Crv. PRAC. & REM. CODE§ 27.011(b) ......................................................................... 9 

TEX. Crv. PRAC. & REM. CODE§ 51.014(b) ....................................................................... 24 

TEX. Crv. PRAC. &REM. CODE CHAPTER 134A ..................................................... 4, 6 

TEX. Crv. PRAC. & REM. CODE§ 134A.002, ...................................................................... 20 

TEX. Crv. PRAC. & REM. CODE§ 134A.003, ...................................................................... 15 

TEX. Gov'T CODE§ 311.011 (b) ............................................................................................ 19 

Texas Uniform Trade Secrets Act,§§ 134A.001-.008, TEX. Crv. PRAC. & 

REM. CODE ............................................................................................................................ 15 

lX 
NO. 03-15-00064-CV 

IN THE COURT OF APPEALS FOR THE 

THIRD DISTRICT OF TEXAS 

AT AUSTIN, TEXAS 

ELITE AUTO BODY LLC d/b/a PRECISION AUTO BODY, REY R. 

HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN, 

Appellants 

v. 

AUTOCRAFT BODYWERKS, INC. 

Appellee 

ON APPEAL FROM THE 345TH JUDICIAL DISTRICT COURT 

TRAVIS COUNTY, TEXAS 

TRIAL COURT CAUSE NO. D-1-GN-14-004535 

HONORABLE TIM SULAK, PRESIDING JUDGE 

BRIEF OF APPELLEE 

Autocraft Bodywerks, Inc. ("Autocraft"), Appellee, submits its Brief of 

Appellee in response to the Appellants' Brief filed by Elite Auto Body, LLC d/b/a 

Precision Auto Body, Rey R. Hernandez, Y esica Diaz, and David Damian. 

1 
ISSUES PRESENTED 

1. WHETHER THE TRIAL COURT'S DENIAL OF DEFENDANTS' 

MOTION TO DISMISS UNDER CHAPTER 27 OF THE TEXAS CIVIL 

PRACTICE & REMEDIES CODE WAS APPROPRIATE BECAUSE 

APPELLANTS' FAILED TO MEET THEIR BURDEN OF PROOF. 

2. ALTERNATIVELY, EVEN ASSUMING THE TEXAS CITIZENS 

PARTICIPATION ACT APPLIES TO APPELLEE'S CLAIMS, 

WHETHER AUTOCRAFT MET ITS BURDEN OF PROOF TO 

PREVENT DISMISSAL OF ITS CLAIMS. 

2 
STATEMENT OF FACTS 

Autocraft is dissatisfied with the Statement of Facts set out in Appellant's 

Brief and submits the following Statement of Facts supported by the record in this 

appeal. 

Autocraft is a full service high-end collision restoration auto repair shop 

established in 1984. C.R. 41. Over the span of three decades, its founder, John 

Borek ("Borek"), spent substantial time and money developing specific business 

practices and forms, and creating a unique compilation of technical service 

bulletins and other information which have provided Autocraft with an advantage 

over its competitors who do not know or use Autocraft's trade secrets and 

confidential and proprietary information. C.R. 41-42. 

Rey Hernandez ("Hernandez") worked at Autocraft from the time he arrived 

1n Austin in March of 2008 until March of 2009. C.R. 5, 26. Upon leaving 

Autocraft, Hernandez started Precision Auto Body repair shop ("Precision Auto"), 

a competing repair shop. C.R. 26. Since Hernandez started Precision Auto a few 

employees have left Autocraft for Precision Auto. C.R. 42. Autocraft and Precision 

Auto competed in the marketplace for over five years without incident. C.R.42. 

From 2008 to March 2014, David Damian ("Damian") worked as a 

production manager at Autocraft. C.R. 29. While Damian worked at Autocraft he 

had access to personnel information on employees, including salary information, 

Autocraft's financial information, including profit and loss statements, and 

3 
Autocraft' s proprietary compilation of technical service bulletins and client forms, 

which in the hands of competitor provides it with an unfair competitive advantage. 

C.R. 6, 43. 

Joyce Garcia ("Garcia"), who served as Autocraft's office manager for nine 

years, also had access to Auto craft's confidential business information and trade 

secrets while she was employed at Autocraft. C.R. 5-6, 43. Both Damian and 

Garcia held positions of trust and confidence with Autocraft during their 

employment. C.R. 6. 

After Damain and Garcia left Autocraft in 2014 to join Precision Auto, 

Autocraft learned Precision Auto was using its proprietary compilation of technical 

service bulletins, and that a copy of its proprietary compilation had been taken to 

Precision Auto rather than Precision Auto spending the time and money 

subscribing to the various publications and searching through the tens of thousands 

of technical service bulletins issued over the years to create its own compilation. 

C.R. 42. Autocraft did not give Damian or Garcia, or any other Autocraft 

employee, consent to take any proprietary work product, confidential information 

or trade secret with them after they left Autocraft. C.R. 42. 

On October 29, 2014, Auto craft filed suit against Precision Auto, Y esica 

Diaz, Hernandez and Damian asserting claims for misappropriation of trade secrets 

and violations of Chapter 134A of the Texas Civil Practice & Remedies Code, 

unfair competition, breach of fiduciary duty and civil conspiracy arising out of the 

4 
improper use of Autocraft's confidential business information and trade secrets. 

C.R. 3-11. Autocraft contends Damain and/or Garcia provided most, if not all, of 

the confidential business information to Precision Auto. C.R. 6. In addition to 

damages arising from the misuse of the confidential business information and trade 

secrets, Autocraft seeks injunctive relief to prevent any continued improper use of 

such information. C.R. 6. 

On December 22, 2014, Appellants filed their Motion to Dismiss Pursuant to 

Chapter 27 of the Texas Civil Practice and Remedies Code claiming that 

Autocraft's suit relates to the exercise of their rights of association or free speech. 

C.R. 18-31. 

The trial court denied Appellants' motion to dismiss on January 23, 2015. 

C.R. 49. Five days later, Appellants filed their Notice of Appeal. C.R. 50-51. 

SUMMARY OF ARGUMENT 

The Texas Citizens Participation Act ("TCPA"), TEX. CIV. PRAC. & REM 

CODE §§ 27.001-.011, is an "anti-SLAPP" law. "SLAPP" is an acronym for 

"Strategic Lawsuits Against Public Participation." The TCPA's purpose is to 

"encourage and safeguard the constitutional rights of persons to petition, speak 

freely, and otherwise participate in government to maximum extent permitted by 

law and, at the same time, protect the rights of a person to file meritorious lawsuits 

for demonstrable injury." TEX. Crv. PRAC. & REM CODE § 27.002. To achieve this 

5 
goal, the TCP A allows a Defendant to seek dismissal of certain claims in a lawsuit 

at an early stage. TEX. CIV. PRAC. & REM CODE. § 27.003. 

Autocraft's lawsuit against Appellants, including its claims for 

misappropriation of trade secrets, violations of Chapter 134A of the Texas Civil 

Practices & Remedies Code, unfair competition, and breach of fiduciary duty as 

well as a claim for civil conspiracy, arises out of Appellants' improper use of 

Autocraft's trade secret and confidential business information to unfairly compete 

in the marketplace, and has nothing to do with Appellants' rights of free speech 

and rights of association. Autocraft seeks to prevent any further improper 

disclosure or use of its trade secrets and confidential business information, not 

Appellants' ability to join together to compete fairly in the marketplace. 

Further, the TCP A does not apply to private communications. In the present 

case, any communication at issue would involve a private communication among 

the Precision Auto employees concerning Autocraft's trade secret and confidential 

business information. Disclosure of trade secret information is not protected free 

speech. The TCP A does not protect theft of trade secrets and unfair competition. 

Indeed, the TCP A expressly does not apply to a legal action brought against a 

person primarily engaged in the business of selling services, such as auto body 

repair services, if the statement or conduct arises out of the sale of services or a 

commercial transaction in which the intended audience is an actual or potential 

buyer or customer. TEX. CIV. PRAC. & REM. CODE§ 27.010(b). It is undisputed that 

6 
Appellants are primarily engaged in the business of selling auto repair services and 

the wrongful conduct complained of in this suit arises out of Appellants' unfair 

competition in the marketplace with respect to the sale of those services. 

Appellants failed to meet their initial burden of proof to show by a 

preponderance of the evidence that the present action is based on, relates to, or is in 

response to their exercise of the right to free speech or the right of association. 

Accordingly, the trial court properly denied Appellants' motion to dismiss under 

Chapter 27 of the Texas Civil Practice & Remedies Code. 

ARGUMENT 

I. STANDARD OF REVIEW 

Section 27.003 of the TCPA provides that a party may file a motion to 

dismiss if a legal action "is based on, relates to, or is in response to [that] party's 

exercise of the right of free speech, right to petition, or right of association." TEX. 

CIV. PRAC. & REM. CODE § 27.003(a). Section 27.005(b) provides that a court 

"shall dismiss a legal action against the moving party if the moving party shows by 

a preponderance of the evidence" that the action is based on, relates to, or is in 

response to the party's exercise of free speech or the right of association. TEX. Crv. 

PRAC. & REM. CODE § 27 .005(b ). 

Appellants bore the initial burden of proof of demonstrating the TCPA's 

applicability by a preponderance of the evidence. See Whisenhunt v. Lippincott, 

416 S.W.3d 689, 695 (Tex. App.-Texarkana 2013, pet. filed). If Appellants could 

7 
establish the required elements under § 27.005(b), then the burden would shift to 

Autocraft to avoid dismissal by meeting the requirements under§ 27.005(c) that it 

establish by clear and specific evidence a prima facie case for each essential 

element of its claims. TEX. Crv. PRAC. & REM CODE§§ 27.005(b) and (c); see also 

Jardin v. Markland, 431 S.W.3d 765, 770 (Tex. App.-Houston [14th Dist.] 2014, 

no pet.). 

A trial court's determination that a moving party showed by a preponderance 

of evidence that the TCP A applies is subject to de novo review. Cheniere Energy, 

Inc. v. Lotfi, 449 S.W.3d 210,213 (Tex. App.-Houston [1st Dist.] 2014, no pet.); 

KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 688-89 (Tex. App.-Houston 

[1st Dist.] 2013, pet. denied). This case will tum on the Court's construction of the 

TCPA, an issue of law that likewise implicates de novo review of the trial court's 

decision. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). 

II. TRIAL COURT CORRECTLY DENIED APPELLANTS' MOTION TO 

DISMISS UNDER CHAPTER 27 OF THE TEXAS PRACTICE & 

REMEDIES CODE BECAUSE APPELLANTS FAILED TO MEET 

THEIR BURDEN OF PROOF. 

A. AUTOCRAFT'S MISAPPROPRIATION· OF TRADE SECRETS, 

UNFAIR COMPETITION, AND BREACH OF FIDUCIARY DUTY 

CLAIMS DO NOT IMPLICATE THE TCPA. 

The TCP A does not apply to this case. The TCP A was enacted as AntiSLAPP legislation, in order to curtail the filing of "frivolous lawsuits aimed at 

silencing" citizens who are participating in the free exchange of ideas. See Senate 

8 
Comm. on State Affairs, Bill Analysis, Tex. H. B. 2973, 82nd Leg., RS (20 11 ). Its 

purpose is to "encourage and safeguard the constitutional rights of persons to 

petition, speak freely, associate freely, and otherwise participate in government to 

the maximum extent permitted by law and, at the same time, protect the rights of a 

person to file meritorious lawsuits for demonstrable injury." TEX. CIV. PRAC. & 

REM. CODE § 27.002. The provisions of the TCPA shall be "construed liberally to 

effectuate its purpose." TEX. CIV. PRAC. & REM. CODE§ 27.01l(b). 

The TCP A attempts to strike a balance between encouraging and 

safeguarding the right of free speech while also providing an avenue for recovery 

for those who file meritorious lawsuits. See TEX. CIV. PRAC. & REM. CODE 

§ 27.002. Appellants argue that the present suit infringes on their rights of free 

speech and rights of association. Appellants' Brief at p. 10. In fact, Autocraft's 

suit seeks to protect and preserve its trade secret and confidential business 

information and is no threat to Appellants' rights to free speech or rights of 

association. For such reason, the statute is inapplicable to this case. 

Under TEX. CIV. PRAC. & REM. CODE § 27.001(3), the "'[e]xercise of the 

right of free speech' means a communication made in connection with a matter of 

public concern." Under TEX. CIV. PRAC. & REM. CODE § 27.001(2), the 

"'[e]xercise of the right of association' means a communication between 

individuals who join together to collectively express, promote, pursue, or defend 

common interests." Autocraft is not trying to foreclose either of these rights. 

9 
Appellants failed establish "by a preponderance of the evidence that the legal 

action is based on, relates to, or is in response to the party's exercise of: ( 1) the 

right of free speech; (2) the right of association; or (3) the right to petition." TEX. 

Crv. PRAC. &REM. CODE§ 27.005(b). 

1. PRIVATE SPEECH NOT PROTECTED UNDER THE TCP A 

"Not all speech is of equal First Amendment importance. It is speech on 

'matters of public concern' that is at the heart of the First Amendment protection." 

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59, 105 

S. Ct. 2939, 86 L. Ed. 2d 593 (1985). Private communications are not protected by 

the TCPA. Whisenhunt, 416 S.W.3d at 700. 

The Whisenhunt court held that the TCP A did not apply to a motion to 

dismiss defamation claims based on internal emails that had never been published 

in a newspaper, social media, or other public forum. Whisenhunt, 416 S.W.3d at 

697-700. The court explained, "Considering the language of the statute as a whole, 

the Legislature's statement of intent, and existing law, which was referenced by 

Legislature, we conclude that the TCP A does not apply to speech that is only 

privately communicated. Only under such an interpretation can both purposes of 

the TCPA be served." Id. At 700. 

In the Jardin case, the court addressed a TCP A motion to dismiss based on 

purported rights to petition and association invoked by filing of court pleadings. 

Jardin, 431 S.W.3d at 768. Rejecting the applicability of the TCPA, the Jardin 

10 
court stated in dicta that: "Jardin would have us conclude that, simply by filing a 

pleading in a lawsuit between private parties, he has invoked the protections of the 

TCPA, despite the act's title, purpose, language and context, legislative history, 

and the particular meanings of constitutional rights at issue." !d. at 773. The court 

concluded that the TCPA's legislative history, purpose, and context instead support 

the conclusion that the "exercise of the right of association" as defined in the 

statute requires that the communications at issue concern public interest and does 

not encompass private communications. See !d. at 770-773. 

Similarly, in Rivers v. Johnson Custodial Home, Inc., No. A-14-CA-484-SS, 

2014 WL 4199540 (W.D.Tex. Aug. 22, 2014), the court held communications to 

prospective employers in response to reference checks · were private 

communications that were not protected by the TCP A. !d. at * 1-2. The court 

observed that "[t]he Whisenhunt court surveyed the Texas cases involving free 

speech claims under the TCP A and concluded all of them involved alleged 

statements 'readily available to the public."' !d. at 2. The court therefore held that 

"if a person not exercising his right to speak freely in public, the TCP A will not 

apply to suits filed against him. "!d. 

These decisions are all consistent with the text and context of the TCP A, as 

well as its legislative history. The TCP A defines "exercise of the right of 

association" to mean "a communication between individuals who join together to 

collectively express, promote, pursue, or defend common interests." TEX. Crv. 

11 
PRAC. & REM CODE § 27.001(2). The statute defines the "exercise of the right of 

free speech" to mean "a communication made in connection with a matter of 

public concern." !d. at § 27.001(3). As the Jardin court observed, "[t]he clear 

implication from these definitions is that the Legislature intended to protect 

communications in the public interest." Jardin, 431 S.W.3d at 772, see also 

Whisenhunt, 416 S.W.3d at 697; Cheniere Energy, 449 S.W.3d at 219 (Jennings, 

1., concurring). 

This Court has previously held that the text of the TCP A does not limit the 

breadth of the rights protected by Chapter 27 to communications directed toward 

government. See Combined Law Enforcement Ass 'n of Tex. v. Sheffield, No. 03-13-

00105-CV, 2014 WL 411672 at *2 (Tex. App.-Austin Jan. 31, 2014, pet. filed) 

(Stating that the text of TCP A does not limit its scope). The Sheffield case involved 

a claim for defamation arising out of a labor dispute which by its very nature 

requires publication of a communication. !d. At *6. Other courts that have held the 

TCP A extends beyond participation in government still require a public 

communication. See, e.g., BBB of Metro Houston, Inc. v. John Moore Servs., Inc., 

441 S.W.3d 345, 353 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) ("TCPA 

includes a person's right to communicate reviews or evaluations of services in the 

marketplace."). 

The legislative history of the TCP A further confirms that its purpose is to 

protect communications analogous to participation in government made publicly, 

12 
rather than private communications. The legislative sponsor issues a statement of 

intent, which includes the following reasoning for enacting the legislation: 

Citizens participation is the heart of our democracy. Whether 

petitioning the government, writing a traditional news article, or 

commenting on the quality of a business, involvement of citizens in 

the exchange of idea[ s] benefits our society. 

The Texas Citizens Participation Act would allow defendants-who are 

sued as a result of exercising their right to free speech or their right to 

petition the government-to file a motion to dismiss the suit. ... 

Senate Comm. on State Affairs, Bill Analysis, Tex. H.B. 2973, 82nd Leg., R.S. 

(20 11 ). The statement of intent confirms the concept evident from the statute as a 

whole: the Legislature intended to protect public communications analogous to 

participation in government. The present case involving confidential business 

information and trade secrets by its very nature would not and does not involve 

public communications. 

2. THE TCP A DOES NOT PROTECT THE DISCLOSURE OF 

TRADE SECRETS 

Appellants do not address the application of the TCPA to Ailtocraft's claims 

individually, arguing instead that all of Autocraft's claims "center upon 

defendants' communications among themselves as they promote and pursue their 

common interests in developing and maintaining a successful auto body repair 

business." C.R. 21. Thus by their own admission, this case involves private 

communications at best. In a desperate attempt to couch Autocraft' s petition as a 

SLAPP suit and in order to fall under the statute's purview, Appellants 

13 
mischaracterize Autocraft's claims. For example, Appellants assert that in filing 

the lawsuit, Autocraft seeks to prevent them from communicating regarding 

common business practices. C.R. 18. A simple review of Plaintiffs Original 

Petition establishes that is not the case. C.R. 18-19. 

Without question, Autocraft' s claims are limited to the improper disclosure 

and use of its confidential business information and trade secrets. This suit turns on 

Damian's misappropriation of trade secrets and the related breach of fiduciary duty 

owed to Autocraft that survives termination of employment. As explained by this 

Court, "trade secret law is intended to prevent ideas from being directly stolen, 

rather than copied, and only applies to the small group of people privy to 

confidential information." Garth v. Staktek Corp., 876 S.W.2d 545, 550 (Tex. 

App.-Austin 1994, writ dism'd w.o.j.). 

Further, as in this case, trade secret misappropriation cases often involve 

breaches of confidence and fiduciary duties. Such cases do not implicate First 

Amendment concerns, much less the specific First Amendment concerns protected 

by the TCP A. See, e.g. Cohen v. Cowles Media Co., 501 U.S. 663, 668-72 

( 1991) (holding that First Amendment protections were not triggered by a private 

cause of action for promissory estoppel); Am. Motors Corp. v. Huffstutler, 575 

N.E.2d 116, 120 (Ohio 1991) ("Disclosure of confidential information does not 

qualify for protection against prior restraint under the First Amendment."); Cherne 

Indus. Inc. v. Grounds & Assocs., Inc., 278 N.W.2d 81, 94 (Minn. 1979) (rejecting 

14 
First Amendment defense in trade secret case because of defendant's breach of 

confidential relationship obligation.). 

In rejecting a claim of First Amendment immunity by an employee who has 

misappropriated documents in order to provide them to the press, the Fourth 

Circuit Court of Appeals stated, "[ t ]o permit the thief thus to misuse the 

Amendment would be to prostitute the salutary purposes of the First Amendment." 

United States v. Morison, 844 F.2d 1057, 1069-70 (4th Cir. 1988); see also, Cherne 

Indus., 278 N.W.2d at 94. (noting that an employee "is not entitled to invoke the 

First Amendment as a shield to immunize his act of thievery."). Under Appellants' 

expansive view of the TCP A, contrary to these precedents, an employee and even a 

fiduciary can invoke the First Amendment concerns protected by the TCP A as a 

shield to "immunize" tortious conduct so long as the misconduct has some 

connection to maintaining and operating a competitive business enterprise. 

Appellants do not contest that trade secrets are protectable property interests 

under Texas law. Autocraft has alleged entitlement to protection of its trade secret 

and confidential business information relating to its business practices, procedures 

and compilation of information which provides it with a competitive advantage in 

the marketplace. The Texas Uniform Trade Secrets Act, §§ 134A.001-.008, TEX. 

Crv. PRAC. & REM. CODE, provides Autocraft with remedies to protect and preserve 

its trade secrets that have been acquired by improper means. See § 134A.003, TEX. 

Crv. PRAC. & REM. CODE. 

15 
Appellants also do not contest that an employee has a common law duty not 

to use confidential or proprietary information acquired during employment 

adversely to his employer. Anderson Chern. Co. v. Green, 66 S.W.3d 434, 442 

(Tex. App.-Amarillo 2001, no pet.). Thus, while a former employer may use the 

general knowledge, skill, and experience acquired during the employment 

relationship, he may not utilize confidential information or trade secrets acquired 

during the employment relationship. !d. The fact that Defendants did not enter a 

non-compete, non-solicitation or confidentiality agreement is irrelevant because a 

former employees has a common law duty not to disclose a former employer's 

confidential business information. Id. 

Autocraft filed this suit after learning Damian had improperly taken and was 

using its trade secret and confidential business information, including its business 

processes, practices, forms, payment sheets, and compilations-which have been 

carefully crafted and revised over three decades-to gain an unfair advantage in 

the market for his new employer, Precision Auto. C.R. 42. Appellants could not, 

and did not, meet their burden to prove by a preponderance of the evidence that 

Autocraft's lawsuit, much less its misappropriation of trade secrets, unfair 

competition and breach of fiduciary duty claims, were filed in response to, 

premised upon, or otherwise implicated TCP A-protected communications. 

Accordingly, the trial court correctly denied Precision Auto's motion to dismiss. 

16 
B. EVEN IF THE TCPA WERE OTHERWISE APPLICABLE TO 

AUTOCRAFT'S TORT CLAIMS, THE COMMERCIAL SPEECH 

EXCEPTION IN§ 27.010(b) PREVENTS DISMISSAL. 

At the heart of Appellants' argument that the TCP A applies to Auto craft's 

suit against them is their apparent view that the statute applies in numerous cases 

having nothing to do with its underlying purpose of protecting Texans' 

constitutional rights to "petition, speak freely, and otherwise participate in 

government to the maximum extent permitted by law." To that end, Appellants 

urge that the Court conclude the TCP A shields all of their actions complained of 

by Autocraft because their conduct is in some way relates to their development and 

maintenance of a competitive auto repair business, which entails the exercise of the 

right of association and the right of free speech. Section 27.01 O(b) of the TCP A 

provides: 

[The TCP A] does not apply to a legal action brought against a person 

primarily engaged in the business of selling or leasing goods or 

services, if the statement or conduct arises out of the sale or lease of 

goods, services, or an insurance product, insurance services, or a 

commercial transaction in which the intended audience is an actual or 

potential buyer or customer. 

§ 27.010(b), TEX. CIV. PRAC. & REM. CODE. This statutory exemption precludes 

any application of the anti -SLAPP statute here because Appellants, by their own 

admission, are engaged in the business of selling services, and their alleged 

exercise of their rights of free speech and free association on which their motion to 

dismiss was predicated, ari~e out of "their common interests in developing and 

17 
maintaining a successful auto body repair business." C.R. 21. Remarkably, 

Appellants contend that if Autocraft is successful in its suit, they would be 

prevented from "communicating regarding business procedures that are commonly 

employed in the automobile body repair shop industry." Appellants' Brief at 11. 

This argument defies logic. 

Thus, even if Auto craft's claim could somehow implicate the TCP A, the 

commercial speech exception in section 2 7. 0 1 O(b) prevents dismissal of the claims 

against Appellants. 

III. EVEN ASSUMING THE TCPA APPLIES TO APPELLEE'S CLAIMS, 

AUTOCRAFT MET ITS BURDEN OF PROOF TO PREVENT 

DISMISSAL OF ITS CLAIMS. 

Because the trial court found that Appellants did not meet their burden of 

proof to show that Autocraft's action is "based on, relates to, or is in response to" 

their exercise of the right to free speech and right of association, it did not need to 

address whether Autocraft established a prima facie case for each element of the 

claim in question. In determining whether a non-movant carries the burden, the 

trial court shall consider both the pleadings and evidence in the light most 

favorable to the non-movant. See TEX. Crv. PRAC. & REM. CODE § 27.006; and 

Schimmel v. McGregor, 438 S.W.3d 847, 855-56 (Tex. App.-Houston [1st Dist.] 

2014, pet. filed). Auto craft did establish a prima facie case for misappropriation of 

trade secrets, unfair competition and breach of fiduciary duty. 

18 
Texas courts have long held that a "prima facie case" is a minimum quantity 

of evidence. "Prima facie evidence is merely that which suffices for proof of a 

particular fact until contradicted and overcome by other evidence." Dodson v. 

Watson, 220 S.W. 771, 772 (Tex. 1920). The term has also been used to mean that 

the proponent has produced sufficient evidence to go to the trier of fact on the 

issue. Coward v. Gateway Nat'l Bank, 525 S.W.2d 857, 859 (Tex. 1975). 

As expressed in more recent decisions, a "prima facie case" requires a 

"minimum quantity of evidence necessary to support a rational inference that the 

allegations of fact is true." Rodriguez v. Printone Color Corp., 982 S.W.2d 69, 72 

(Tex. App.-Houston [1st Dist.] 1998, pet. denied); Rosales V. H.E. Butt Grocery 

Co., 905 S.W.2d 745, 748 (Tex. App.-San Antonio 1995, writ denied). 

The Legislature is presumed to know and act with reference to the common 

law. Haygood v. De Escabedo, 356 S.W.3d 390,403 (Tex. 2011); and TEX. Gov'T 

CODE § 311.011 (b). Thus, the courts of appeals have adopted this well-understood 

definition of the "prima facie case" for application in the TCP A context. See, e.g. 

Schimmel, 438 S.W.3d at 855 (citing Robinson, 409 S.W.3d at 688); James v. 

Calkins, 446 S.W.3d 135, 147 (Tex. App.-Houston [1st Dist.] 2014, pet filed.). 

Indeed it is an elementary principle of Texas law that any ultimate fact may 

be proved by circumstantial evidence. Russell v. Russell, 865 S.W.2d 929, 933 n.2 

(Tex. 1993); Prudential Ins. Co. v. Krayer, 366 S.W.2d 779, 780 (Tex. 1963) 

(holding that any ultimate fact may be conclusively shown by wholly 

19 
circumstantial evidence). There is nothing in the TCP A to suggest that the 

Legislature meant, by the use of the phrase "clear and specific evidence," to sub 

silentio preclude the use of circumstantial evidence and inference. To the contrary, 

by incorporating the use of the "prima facie case" as the standard that a nonmovant must satisfy to preserve its claims, the Legislature has expressly authorized 

the use of such evidence and inference as the accepted definition acknowledges 

that reasonable inference may suffice-indeed, may be necessary-to prove the 

elements of a claim. See Lammons Gasket Co. v. Flexitallic LP, 9 F. Supp. 3d 709, 

712 (S.D. Tex. 2014) (noting in a TCPA case that proof of motive "must 

necessarily, at this early stage of the proceeding, be circumstantial"). 

A trade secret misappropriation under Texas law requires ( 1) the existence 

of a trade secret, (2) a breach of a confidential relationship, (3) use of the trade 

secret, and (4) damages. Trilogy Software v. Callidus Software, Inc., 143 S.W.3d 

452, 463 (Tex. App.-Austin 2004, pet. denied). Proof of trade secret 

misappropriation often depends on circumstantial evidence. Southwestern Energy 

Prod. Co. v. Berry-Helfand, 411 S.W.3d 581, 598 (Tex. App.-Texarkana 2013, 

pet. filed). Under§ 134A.002, TEX. CIV. PRAC. & REM. CODE, a misappropriation 

means acquisition of a trade secret of another by a person who knows or has reason 

to know that the trade secret was acquired by improper means. 

The law of unfair competition is an umbrella for all statutory and 

nonstatutory causes of action arising out of business conduct which is contrary to 

20 
honest practice in industrial or commercial matters. United States Sporting Prods. 

V. Johnny Stewart Game Calls, 865 S.W.2d 214, 217 (Tex. App.-Waco 1993, 

writ denied.). Within the broad scope of unfair competition are the independent 

causes of action such as trade secret misappropriation. !d. 

Damages in a trade secret case can take a variety of forms. The methods 

used to calculate damages include the value of plaintiffs lost profit; the 

defendant's actual profits from use of the trade secrets; the value a reasonably 

prudent investor would have paid for the trade secret; development costs the 

defendant avoided by the misappropriation; and a reasonable royalty. See BerryHelfand, 411 S.W.3d at 609. Courts adjust the measure of damages to accord with 

the commercial setting of the injury, the likely future consequences of the 

misappropriation, and the nature and extent of the defendant's use of the trade 

secret. !d. 

Texas courts have long recognized that entrustment of trade secrets gives 

rise to a fiduciary relationship in an employer-employee relationship. See In re 

Associated Indep. Marketers Inc. of Am., Case No. 92-4941, 1993 U.S. App. 

LEXIS 41111 at *9 (5th Cir. May 10, 1993). A breach of fiduciary duty exists 

when a party uses confidential information adversely to the disclosing party. See 

Hyde Corp. v. Huffines, 158 Tex. 566, 314 S.W.2d 763, 770, 772 (Tex. 1958). A 

former employee has a duty not to disclose a former employer's confidential 

21 
business information. Anderson Chern. Co. v. Green, 66 S.W.3d 434, 442 (Tex. 

App.-Amarillo 2001, no pet.). 

A trade secret is any formula, pattern, device, or compilation of information 

which is used in one's business and presents an opportunity to obtain the advantage 

over competitors who do not know or use it. Computer Assoc. Inti., Inc. v. Altai, 

Inc., 918 S.W.2d 453,455 (Tex. 1996). In addition, a procedure or device may be 

based on a previously existing idea in the industry, and still be entitled to 

protection so long as the procedure or device is not generally known. See K&G 

Oil Tool & Serv. Co. v. G&C Fishing Tool Serv., 158 Tex. 594, 314 S.W.2d 782, 

785 (Tex. 1958). 

Autocraft has alleged entitlement to protection of its trade secret and 

confidential business information relating to its business practices, procedures and 

compilation of information which provides it with a competitive advantage in the 

marketplace. C.R. 41-43. Borek testified that Damian and/or Garcia took a copy of 

Autocraft's proprietary compilation of technical service bulletins with them to 

Precision Auto when they left Autocraft to join Precision Auto. C.R. 42. Borek 

also testified that Precision Auto is using Autocraft's proprietary forms and 

documents which he considers a trade secret. C.R. 42. 

Appellants also do not contest that an employee has a common law duty not 

to use confidential or proprietary information acquired during employment 

adversely to his employer. Anderson Chern., 66 S.W.3d at 442. Thus, while a 

22 
former employer may use the general knowledge, skill, and experience acquired 

during the employment relationship, he may not utilize confidential information or 

trade secrets acquired during the employment relationship. Id. Autocraft filed this 

suit after learning Damian had improperly taken and was using its trade secret and 

confidential business information, including its business processes, practices, 

forms, payment sheets, and compilations-which have been carefully crafted and 

revised over three decades-to gain an unfair advantage in the market for his new 

employer, Precision Auto. C.R. 42. The fact that Defendants did not enter a noncompete, non-solicitation or confidentiality agreement is irrelevant because a 

former employees has a common law duty not to disclose a former employer's 

confidential business information. Id. 

While the Technical Service Bulletins may be available online, Autocraft 

spent substantial time and money searching through the tens of thousands of 

available bulletins and purchasing, compiling and organizing the Technical Service 

Bulletins relevant to its business. C.R. 41-42. Appellants could have done the 

same, but instead chose not to expend the time and money to create a similar 

compilation, choosing instead to simply take Autocraft's compilation and other 

proprietary information. Furthermore, it is alleged that Appellants have improperly 

used Autocraft's confidential information, including employee salary information, 

to recruit and solicit more Autocraft employees to join Precision Auto, and this 

tactic of recruitment is not permitted. C.R. 42-43. 

23 
To the extent Appellants object to the evidence submitted to the trial court at 

the hearing, Appellants waived their objections having failed to secure a ruling on 

their objections. On January 22, 2015, Appellants presented their objections to the 

Affidavit of John Borek attached to Plaintiffs Response to Defendants' Motion to 

Dismiss Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code, at 

the time of the hearing. C.R. 53-59. At the conclusion of the hearing, the Court 

took Appellants' motion under advisement 

On January 23, 2015, the Court signed and entered its Order Denying 

Defendants' Motion to Dismiss Pursuant to Chapter 27 of the Texas Civil Practice 

and Remedies Code. C.R. 49. On January 28, 2015, Appellants filed their Notice 

to Appeal, appealing the Court's order denying their motion to dismiss. C.R. 50-

51. 

Appellants did not secure a ruling on their objections prior to filing their 

notice of appeal, which, under TEX. Crv. PRAC. & REM. CODE § 51.0 14(b ), stayed 

all proceedings in the trial court pending resolution of the appeal. Accordingly, 

Appellants' objections are waived. See, e.g., Rodriguez v. Wal-Mart Stores, Inc., 

52 S.W.3d 814, 823 (Tex. App.-San Antonio 2001) (objections waived by failing 

to obtain a ruling), rev 'din part on other grounds, 92 S.W.3d 502 (Tex. 2002); see 

also Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 466 (Tex. App.-

Texarkana 1998, pet. denied) (error waived where reporter's record only reflected 

trial court's intent to rule at a later date but record did not contain a specific ruling 

24 
on objection). Thus, Autocraft's submission of both direct and circumstantial 

evidence establishing a prima facie case for each element of its claims against 

Appellants precludes dismissal under the TCP A. 

PRAYER 

Appellee, Autocraft Bodywerks, Inc., requests that the Court affirm the trial 

court's denial of Appellants' motion to dismiss under Chapter 27 of the Texas 

Civil Practices & Remedies Code. Autocraft further requests . such other and 

further relief to which it may be justly entitled. 

Respectfully submitted, 

By: Is/ James G. Ruiz 

James G. Ruiz 

State Bar No. 17385860 

jruiz@winstead.com 

Jacylyn G. Austein 

State Bar No. 24069760 

j austein@winstead. com 

WINSTEAD PC 

401 Congress A venue, Suite 2100 

Austin, Texas 78701 

(512) 370-2800 

(512) 370-2850 (Fax) 

ATTORNEYS FOR APPELLEE 

AUTOCRAFT BODYWERKS, INC. 

25 
CERTIFICATE OF SERVICE 

I certify that a true and correct copy of the foregoing Brief of Appellee was 

forwarded via electronic service to the following on the 20th day of April, 2015: 

Rick Harrison 

Sam King 

Dale L. Roberts 

FRITZ, BYRNE, HEAD & HARRISON, PLLC 

98 San Jacinto Boulevard, Suite 2010 

Austin, Texas 78701 

Is/ James G. Ruiz 

James G. Ruiz 

26 
CERTIFICATE OF COMPLIANCE 

I certify that the word count for this filing, excluding portions of the brief 

that need not be counted under Rule 9.4(i)(l), is 5,429 according to the Microsoft 

Word 2010 word count feature, in compliance with the 15,000 word limit set for 

merits briefing by Rule 9.4(i)(2)(B). 

Is/ James G. Ruiz 

James G. Ruiz 

27 

782076v.l 57457-1 
NO. 03-15-00064-CV 

IN THE COURT OF APPEALS FOR THE 

THIRD DISTRICT OF TEXAS 

AT AUSTIN, TEXAS 

ELITE AUTO BODY LLC d/b/a PRECISION AUTO BODY, REY R. 

HERNANDEZ, YESICA DIAZ, AND DAVID DAMIAN, 

Appellants 

v. 

AUTOCRAFT BODYWERKS, INC. 

Appellee 

ON APPEAL FROM THE 345th JUDICIAL DISTRICT COURT 

TRAVIS COUNTY, TEXAS 

TRIAL COURT CAUSE NO. D-1-GN-14-004535 

HONORABLE TIM SULAK, PRESIDING JUDGE 

APPENDIX TO BRIEF OF APPELLEE 

A. Order Denying Defendants' Motion to Dismiss Pursuant to Chapter 2 7 of the 

Texas Civil Practice and Remedies Code 

B. Plaintiffs Original Petition and Application for Injunctive Relief 

28 
APPENDIX A 
CAUSE NO. D-1-GN-14-004535 

AUTOCRAFT BODYWERKS, INC., 

Plaintiff, 

vs. 

ELITE AUTO BODY LLC, 

dba PRECISION AUTO BODY, 

REY R. HERNANDEZ, 

VESICA DIAZ, and 

DAVID DAMIAN, 

Defendants, 

vs. 

JOHN BOREK, 

Third-Party Defendant. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

Filed In The District Court 

0. f p,rWt,;,•'f-8•- on '·~DI~-: 

at I~ lrM. 

Velva L~ Price, Dletrict Clerk 

IN THE DISTRICT COURT 

TRAVIS COUNTY, TEXAS 

345th JUDICIAL DISTRICT 

ORDER DENYING DEFENDANTS' MOTION TO DISMISS PURSUANT TO 

CHAPTER 27 OF THE TEXAS CIVIL PRACTICE AND REMEDIES CODE 

On the 22nd day of January, 2015, the Court heard Defendants' Motion to Dismiss 

Pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code (the "Motion"). After 

considering the pleadings, affidavits, and legal arguments, tRe Ceart f~ thaot Cha:Pter 27 of the~~ 

','Z-~ \ 'Fexas ·civil Ptactlce and Itemedies Code is inapplicable te this !mt. It is therefore, 

ORDERED that the Motion is hereby DENIED in all respects. 

Signed this 2.!>'dayofJanuary2015. 
APPENDIXB 
CAUSE NO. D-1-GN-14-004535 

AUTOCRAFT BODYWERKS, INC., 

Plaintiff. 

vs. 

ELITE AUTO BODY LLC, 

dba PRECISION AUTO BODY, 

REY R. HERNANDEZ, 

VESICA DTAZ, and 

DAVID DAMIAN, 

10/29/2014 4:16:00 PM 

Amalia Rodriguez-Mendoza 

District Clerk 

Travis County 

D-1-GN-14-004535 

IN THE DISTRICT COURT 

TRAVIS COUNTY, TE~XAS 

Defendants. 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ 

§ _

34_5

_th_ JUDICIAL DISTRICT 

PLAINTIFF'S ORIGINAL PETITION 

AND APPLICATION FOR INJUNCTIVE RELIEF 

Plaintiff Autocraft Bodywerks, Inc. ("Autocra:ft"), a Texas corporation, complains of 

Defendants Elite Auto Body LLC, dba Precision Auto Body ("Elite Auto"), Rey R. Hernandez 

("Hernandez"), Yesica Diaz ("Diaz"), and David Damian ("Damian"), as follows: 

I. 

DISCOVERY PLAN 

1. This case shall be governed by Discovery Control Plan Level 2 of Texas Rule of 

Civil Procedure 190. 

II. 

PARTIES 

2. Plaintiff Autocraft is a Texas corporation having its principal place of business in 

Austin, Travis County, Texas. 

3. Defendant Elite Auto is a Texas corporation having its principal place of business 

in Travis County, Texas, and may be served with process through its registered agent, Rey R. 

Hernandez, 2801 Lyons Road, Austin, Texas 78702. 

PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page 1 

762582v.l 57457~] 
4. Defendant Hernandez is an individual who resides in Hays County, Texas, and 

may be served with process at 1261 Cherrywood, Kyle, Texas 78640, or anywhere within the 

state he can be found. 

5. Defendant Diaz is an individual who resides in Hays County, Texas, and may be 

served with process at 1261 Cherrywood, Kyle, Texas 78640, or anywhere within the state she 

can be found. 

6. Defendant Damian is an individual who resides in Travis County, Texas, and may 

be served with process at 1 1303 Stonny Ridge Road, Austin, Texas 78739, or anywhere within 

the state he can be found. 

III. 

JURISDICTION AND VENUE 

7. This Court has personal jurisdiction over the parties to this case, as well as subject 

matter jurisdiction over the claims asserted herein pursuant to Art. 5, § 8 of the TEXAS 

CONSTITUTION, in that Defendants are residents of the State of Texas, and the amount in 

controversy exceeds the minimum jurisdictional limits of this Court. 

8. Venue is proper in Travis County pursuant to TEX. CIV. PRAc. & REM. CoDE, 

§ 15.002(a)(l) in that the events surrounding Plaintiff's claims occurred in Travis County, Texas. 

IV. 

FACTS 

9. Autocraft is an auto-repair shop that offers full-service, high-end collision 

restoration to a11 makes and models of vehicles, and has been operating its business in Austin, 

Texas since 1984. Autocraft owes much of its success and value to the expertise it has gathered 

from over thirty-years of experience in the auto-repair industry. Over the past three decades, it 

PLAINTIFF'S ORIGINAL PETITION AND APPLTCA TJON FOR lNJUNCTJVE RELIEF 

762582v.l 57457-1 

Page2 
has compiled an extensive record of Technical Service Bulletins ("TSBs") and developed an 

intricate system to improve operations. 

1 0. On or around March 7, 2008, Autocraft hired Hernandez as a production manager. 

Less than a year later, Hernandez quit without giving any notice. In fact, one day, he just stopped 

showing up. Hernandez opened his own auto-repair shop at 2801 Lyons Road. A couple of 

Autocraft employees left with Hernandez. The Certificate of Ownership for the unincorporated 

business was filed on February 11, 2009, under the business name "Precision Auto Body." Diaz 

is listed on the Certificate of Ownership as the full owner of the property. On March 12, 2014, 

Hernandez incorporated the business by forming the limited liabilitY company Elite~ however, he 

kept Precision Auto Body as the assumed name. 

11. On or around March 14, 2014, Damian, a production manager who had been with 

Autocraft for six years, quit and joined Elite. About two months later, Autocraft's·office manager 

of nine years, Joyce Garcia ("Garcia"), left without giving notice to join Elite .. 

12. Damian and Garcia held positions of trust and confidence with Autocraft and 

received and had access to proprietary and confidential information and trade secrets that 

Autocraft had developed for over thirty years through the extensive use of its time, labor, skill 

and resources. For example, Autocraft provided Damian and/or Garcia with access to the 

following during their employments: 

a. Personnel information on employees, including salary information; 

b. Financial information, including profit and loss statemep.ts;· 

c. Proprietary compilation of TSBs; and 

d. Proprietary client forms, such as payment sheets and vehicle· check lists. 

PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF 

762582v.l 57457-1 

Page 3 
13. Upon info1111ation and belief, Damian and/or Garcia provided Elite with most, if 

not a11, of the above-mentioned confidential, proprietary and trade secret information. 

Defendants have been using Autocraft's confidential, proprietary, and trade secret information to 

obtain an unfair competitive advantage in the marketplace for their own persomil gain, and to the 

detriment of Autocraft. Furthennore, upon infonnation and belief, Elite is usi.ng Autocraft's 

confidential information, including employee salary information, to convince more employees to 

leave Autocraft and join Elite. Of the eight employees at Elite, six are from Autocraft. 

14. As a result of the above-described conduct by Defendants, Autocraft has been 

injured and continues to be injured and damaged. Autocraft's injuries and damages include, but 

are not limited to, the potential loss of clients and revenue and the misappropriation and unfair 

use of Autocraft's trade secrets and confidential and proprietary information. 

v. 

CLAIMS FOR RELIEF 

COUNTl 

APPLICATION FOR INJUNCTIVE RELIEF 

15. The paragraphs above are realleged and incorporated herein by reference as if set 

forth in this Count. 

16. Plaintiff will suffer immediate and irreparable injury, loss, ·or damage if: 

Defendants, and all others acting in concert with them, are not immediately enjoined from 

disclosing or using Autocraft's confidential and proprietary information and trade secrets, 

including but not limited to, for purposes of competing with Autocraft and contacting and 

soliciting Autocraft's employees to join Elite. Therefore, Autocraft seeks temporary and 

permanent injunctive reliefi preventing Defendants from continuing to use its confidential, 

proprietary and trade secret infonnation to which they have no right to use or possess. 

PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF 

762582v.l 57457-1 

Page4 
17. The relief requested is necessary to prevent any further iri-eparable injury to 

Autocraft prior to a trial on the merits in this case. If Autocraft is successful on the merits at 

trial, which is likely, the opportunity to recover damages at the conclusion of the case will not 

remedy the harm to it resulting from Defendants' wrongful conduct that will or might continue 

during the progress of this litigation) and Autocraft will have no adequate remedy at law unless 

the Court grants injunctive relief as prayed for herein as the loss of trade secrets and potential 

loss of clients will be difficult to completely calculate. 

18. Following a trial on the merits, the Court should enter a permanent injunction, 

continuing in effect the injunctive relief described above. 

COUNT2 

MISAPPROPRIATION OF TRADE SECRETS AND VIOLATION OF 

CHAPTER 134A OF THE CIVIL PRACTICE & REMEDIES CODE 

19. The paragraphs above are realleged and incorporated herein by reference as if set 

forth in this Count. 

20. The confidential, proprietary, and trade secret information of Autocraft described 

above is protected information under Texas law because it is a compilation of information that 

Autocraft uses in its business, which gives Autocraft an opportunity to obtain an advantage over 

competitors who do not own or possess the information. 

21. Autocraft owns this confidential, proprietary, and trade secret information, and 

Defendants are improperly using it for their own personal gain and to the detriment of Autocraft, 

and they are conspiring with each other to engage in this wrongful conduct. 

22. As a result of Defendants' misappropriation of Autocraft's confidential and 

proprietary infonnation, and trade secrets, Autocraft has suffered and will continue to suffer 

damages in excess of the minimum jurisdictional limits of this Court. 

PLAINTIFF'S ORIGTNAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF Page 5 

762582v.l 57457·1 
COUNT3 

UNFAIR COMPETITION 

23. The paragraphs above are realleged and incorporated herein by reference as if set 

forth in this Count. 

24. The Defendants' conduct described above constitutes unfair competition under 

Texas common law, and the Defendants' unfair competition has proximately caused Autocraft 

irreparable hann. 

25. As a result of; this unfair competition, Autocraft has suffered and will continue to 

suffer damages in excess of the minimum jurisdictional limits of this Court. 

CoUNT4 

BREACH OF FIDUCJAR Y DUTY 

26. The paragraphs above are realleged and incorporated herein by reference as if set 

forth in this Count. 

2 7. As an employee of Autocraft, Damian owed certain fiduciary duties, including a 

duty of loyalty and utmost good faith and the duty not to misuse the confidential information of 

Autocraft. Certain fiduciary duties, including the duty not to disclose or misuse Autocraft's 

confidential, proprietary and trade secret infonnation, continue after the termination of 

employment. 

28. Damian breached his fiduciary duties by undertaking actions to harm Autocraft's 

business, including (a) assisting Hernandez and Diaz in unfairly competing. with Autocraft; 

(b) assisting Hernandez and Diaz with their efforts to hire away . Autocraft employees; 

(c) misappropriating Au toe raft's confidential and proprietary information,. trade secrets and 

valuable work; (d) inducing or otherwise assisting Garcia and other former employees to 

PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF 

762582v.l 57457~1 

Page 6 
misappropriate Autocraft's confidential and proprietary information, trade secrets and valuable 

work product; and (e) failing to act in the best interests of Auto craft. 

29. As a result of Damian's breach, Autocraft has suffered and will continue to suffer 

damages in excess of the minimum jurisdictional limits of this Court. 

CoUNTS 

VICARIOUS AND PARTICIPATORY LIABILITY OF HERNANDEZ AND DIAZ 

30. The paragraphs above are realleged and incorporated herein by reference as if set 

forth in this Count. 

31. Hernandez and Diaz are individually and jointly liable in damages to Autocraft 

for the wrongful acts committed by Damian and other former Autocraft employees because 

(a) they assisted and encouraged the wrongful acts [See RESTATEMENT (SECOND) OF TORTS 

§ 876(b)]; and (b) they assisted and participated in the wrongful acts [See REsTATEMENT 

(SECOND) OF TORTS§ 876(c)]. 

32. Due to its vicarious and participatory liability, Hernandez and Diaz are also 

subject to and bound by all relief sought by Autocraft. 

COUNT6 

CIVIL CONSPlRACY 

33. The paragraphs above are realleged and incorporated herein by reference as if set 

forth in this Count. 

34. Hernandez and Diaz were active participants in Damian's and other fanner 

employees' breach of their fiduciary duties and misappropriation of proprietary information and 

trade secrets. 

PLAINTIFF'S 0RTGJNAL PETITION AND APPLICATION FOR INJUNCTIVE RELIEF 

762582v.t 57457~1 

Page 7 
35. Defendants entered into a conspiracy to accomplish an unlawful purpose or to 

accomplish a lawful purpose by unlawful means. Defendants' conspiracy proximately caused 

Autocraft significant actual damages and as a result, each is liable for the actions of the other. 

36. In furtherance of the conspiracy, Defendants and others within the conspiracy 

committed one or more unlawful acts or otheiWise lawful acts for unlawful purposes, including, 

but not limited to, unlawfully misappropriating Autocraft's proprietary information and trade 

secrets for their own gain and to the detriment of A utocraft, and breaching and causing others to 

breach their fiduciary duties to Autocraft. 

3 7. As a result, Autocraft has suffered and will continue to suffer damages in excess 

of the minimum jurisdictional limits of this Court 

COUNT7 

EXEMPLARY DAMAGES 

3 8. The paragraphs above are realleged and incorporated herein by ~eference as if set 

forth in this Count. 

39. The Defendants' tortious conduct was carried out intentionally and with conscious 

disregard of Autocraft's rights, thereby warranting the imposition of exemplary damages in 

accordance with Chapter 41, TEX. Crv. PRAC. & REM. CODE. 

VI. 

REQUEST FOR DISCLOSURE 

40. Under Texas Rule ofi Civil Procedure 194, Autocraft req~ests that Defendants 

disclose, within fifty (50) days of the service of this request, the infonnation or material 

described in Rule 194.2. 

PLAINTTFF'S ORTGTNAL PETTTTON AND APPLICATION FOR INJUNCTIVE RELIEF 

762582v.l 57457-1 

Page 8 
VII. 

RULE47STATEMENT 

41. Per Texas Rule of Civil Procedure 47, Autocraft states that it seeks monetary 

relief of $100,000 or less, and non-monetary relief. 

VIII. 

CONDITIONS PRECEDENT 

42. Per Texas Rule of Civil Procedure 54, all conditions precedent have occurred, 

have been performed, have been waived, or have otherwise been satisfied or excused. 

IX. 

PRAYER 

WHEREFORE, Autocraft requests the following relief: 

. a. Enter a judgment for actual damages, exemplary damages, costs of litigation, 

including reasonable and necessary attorney's fees, prejudgment and post 

judgment interest at the maximum rate allowed by law, and costs of court as 

prayed herein; 

b. Enter temporary and permanent injunctive relief as requested herein; 

c. Grant Plaintiff all other and further relief to which Plaintiff may show itself to be 

justly entitled. 

Respectfully submitted, 

WINSTEAD P.C. 

40 1 Congress A venue, Suite ·21 00 

Austin, Texas 78701 

(512) 370-2818 

(512) 3 70-2850 (Fax) 

By: Is/ James G. Ruiz 

James G. Ruiz 

State Bar No. 17385860 

jruiz@winstead.com 

ATTORNEYS FOR PLAINTIFF 

PLAINTIFF'S ORIGINAL PETITT ON AND APPLICATION FOR INJUNCTIVE RELIEF 

762582v.l 57457-1 

Page 9 
CIVIL CASE lNFORMA TION SHEET 

0-1-GN-14-004535 345th CAUSE NUMBER (mR CLERK USE ONLY):------------- COURT (FOR CLERK USE ONLY):----------

STYLED Autocraft Bodywerks, Inc. vs. Elite Auto Body LLC Et AI. 

('=.g., John Smith v. All American lnsurilllce Co; In r'= Mary Ann~ln the Matt'=T of the Estate of George Jackson) 

A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new· civil, family law, probate, or mental 

health case or when a post-judgment petition for modification or. motion for enforcement is filed in a family law case. The information should be the best available at 

the tune . o ffil' 1 mg. 

1. Contact lrifor:m'~tion for P.el"SOII compl!!tl~ case·lnfol'matlon sheet: 'Names ofparti~J .. ·case: . ,., : Pers·on or entity compl~tlng shee~ Is: 

Attoniey for Plaintiff/Petitioner 

Name: Email· Plaintiff(s)/Petitioner(s): i ~ ':ProSe Plaintiff/Petitioner James G. Ruiz jruiz@winstead.com -- : ill ifitle IV-D Agency Autocraft Bodywerks, Inc. Other: 

Address: Telephone: -- 401 Congress, 21 st F1 oor -- ill.n 370-2818 -- Additional Parties in Child Support Case: 

City/State/Zip: Fax: Defendant(srespondent(s ): Custodial Parent: Austin, TX 7870 I ill..ll3 70-2850 Elite Auto ody LLC 

Rey R. Hernandez Non-Custodial Parent: Signature: State Bar No: Yesica Diaz 

17385860 David Damian -- Is/ James R. Ruiz Presumed Father: 

[Attach additional p~~ge as necessiii'Y lo list all parties] -- 2. Indicate case-type, or lde~tlfy tbe ntost important issueln the C!ISC (select only 1): 

Civil Family Law 

Post-judgment Actions 

Contract lo:iory or Dama~te Real Property Marriage Relatlonshljl_ · . (non-Title JV.D) 

Debt/Con.N-act ~Assault/Battery &Eminent Domain/ ~~nnulment Etreem'"t ~on•um"IOTPA t;llconstruction Condemnation Declare Marriage Void odification-custody 

ebt/Contract llnefamation ~moon Divorce od ificatio~Other 

raud!Misrepresentation 

Mm-~ . < uiet Title t:ith Children .. .. ·. ·Tide w.~p , . · ther Debt/Contract: ·· Accounting ' . frrespass to Try Title ..... o Children iEnforcement/Modification 

-- ' egal ;_ bther Property: . Paternity 

Foreclosure · ·Medical -- !Reciprocals (UIFSA) 

~~me Equity-Expedited . · Other Professional ·. ,[support Order 

ther Foreclosure . Liability: __ 

.. J~r~nchise Rebltef):to·CI'ihilnaT. · · ·',' 

t,oto; Vehicle Accident :M-atters · . ;, . · Ott!'e(Fa~ily L8w : i:'~rent~·child Rel.iltlonshlp .... Insurance rem1ses · ' "'lE~punction li.J.Enforce Foreign ~!{_Adoption/Adoption with ~andlord/Tenant Product Liability 

:" [Non-Competition ~sbestos/Silica i ~udgment Nisi Judgment Termination ., !Non-Disclosure I'""' eo''"' ~hild Protection Partnership ' Other Product Liability 

Other Contract: List Product: > ~eizure/Forfeiture arne Change · hild Support ,., I!Jwrit of Habeas Corpus- !Protective Order -- I""""Y "v;,na,;, f!'Other Injury or Damage: Pre-indictment emoval ofDisab1ht1es '""'"'\ Porent;ng ]lother: __ of Minority Grandparent Access -- Bother: __ . aternity/Parentage 

Errrpioy'n\eiU , . ·'Other Civ.ii: . ermination of Parental 

lr"dml"'"'' 'filAdministrative Appeal . !l-awyer Discipline Rights 

etaliation l.iAntitrust/Unfair ·Perpetuate Testimony Rother Parent-Child: 

ermination . Competition · l :Securities/Stock --

&workers' Compensation IJ·code Violations ,. Tortious Interference 

!mother Employment: ~Foreign Judgment ' bther: -- -- Intellectual Property 

·Tal. .. Probate & Mental Health 

ioxApp";," Probate/Willsllntestate Administration Guardianship-Adult 

Tax Delinquency l""'d'"t Admini'"'"'" ()uardianship-Minor 

Other.Tax i. '; ndependent Administration Mental Health 

i _"!Other Estate Proceedings ..... Pfher: __ 

3, lpdl~&n; proceif~re.~r·temedy, :jf applicab1~:(~ ~el(ct,:,ore thrrn, 1): . ..... ·' .. ' ... ·. .... ... ·' .-... 

~Appeal from Municipal or Justice Court :I'IDeclaratory Judgment Prejudgment Remedy 

~rbitration-related i~:!Gamishment Protective Order 

~Attachment "ci nterpleader Receiver 

Bill ofReview tt-icense Sequestration· 

Certiorari !Mandamus rTemporary Restraining Order/Injunction 

Class Action .!Post-judgment ···~umover 

. 4.-.J~dic~j~ da.ma2e8.so'ne:hHd1.1 no( select, lflt'is afainily)irw ca.r~):' · ·•. ·' ., .. ··, ... ., .. 

il,ess than $100,000, including damages of any kind, penalties, costs, expenses, pre-judgment interest, and attorney fees 

Less than SI 00,000 and non-monetary relief 

Over $100, 000 but not more than $200,000 .. 

.Over $200,000 but not more than $1,000,000 

, Over $1 ,000,000 

Rev 2113