AFFIRMED and Opinion Filed January 4, 2023 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-21-00148-CV 

EMERGENCY STAFFING SOLUTIONS, INC., Appellant 

V. 

KEVYN HARVEY, HEATHER JAMES, AND CONCORD MEDICAL 

MANAGEMENT, LLC, Appellee 

On Appeal from the 471st Judicial District Court 

Collin County, Texas 

Trial Court Cause No. 471-01515-2017 

MEMORANDUM OPINION 

Before Justices Partida-Kipness, Reichek, and Goldstein 

Opinion by Justice Goldstein 

Emergency Staffing Solutions, Inc., (ESS) appeals the trial court’s order 

granting Kevyn Harvey, Heather James, and Concord Medical Management, LLC’s 

traditional and no-evidence motion for summary judgment. In eight issues, ESS 

argues the trial court erred in striking ESS’s third amended petition; overruling 

ESS’s objections and special exceptions to appellees’ motion for summary 

judgment; granting appellees’ motion for summary judgment as to ESS’s claims for 

breach of contract, misappropriation of trade secrets, tortious interference with 

existing contracts, and breach of fiduciary duty; and dismissing ESS’s tortious 
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interference with existing and prospective business contracts claim. In three issues, 

cross-appellants Harvey and James assert the trial court erred in granting ESS’s 

motion for summary judgment on their declaratory judgment claims, the underlying 

employment agreement was “an otherwise enforceable agreement,” and the noncompetition provision of the agreement contained unreasonable limitations and 

restrictions. We affirm the trial court’s judgment.1

BACKGROUND 

In March 2017, ESS, a hospital staffing company, filed its original petition 

alleging that Harvey and James, two former ESS employees, breached their noncompetition agreements and competed unfairly with ESS by going to work for a 

direct competitor, Concord, and contacting ESS’s customers and employees using 

ESS’s confidential information. The petition alleged appellees’ misconduct “caused 

damage to ESS’s confidential information, goodwill, business reputation, and 

customer, physician, and employment relationships.” Appellees filed an answer 

asserting a general denial and arguing that the covenant not to compete was 

unenforceable and ESS’s alleged trade secrets did not constitute actual trade secrets. 

1

 We note that certain summary judgment evidence is purportedly filed under seal pursuant to 

confidentiality and protective orders and designated as confidential. Without full compliance with Rule 

76a of the Texas Rules of Civil Procedure, no document may be filed under seal. Confidentiality and 

protective orders are purely agreements between parties to identify and facilitate the exchange of 

confidential information subject to discovery but has no bearing on, or authority to, seal records, either in 

the trial court or on appeal. No clerk record was submitted under seal and therefore no action is required 

by this Court. 
 –3– 

In May 2017, Harvey and James filed a counterclaim for declaratory judgment 

asserting the non-competition agreement between the parties was unenforceable. 

In March 2019, appellees filed their traditional and no-evidence motion for 

summary judgment. Among other things, the motion asserted ESS “made no 

showing of damages at all.” Specifically, appellees claimed ESS had “not put forth 

evidence that it suffered any damages to the company’s goodwill, business 

reputation, and customer, physician, and employment relationships.” 

In September 2020, ESS filed a traditional motion for summary judgment on 

Harvey and James’ claim for declaratory judgment. ESS argued Harvey and James’ 

declaratory judgment action mirrored ESS’s claim for breach of contract and was 

therefore improper. Specifically, ESS asserted Harvey and James’ declaratory 

judgment action failed as a matter of law because declaratory judgment is not 

available when the same issues will be resolved through another cause of action. 

In October 2020, ESS filed its response to appellees’ motion for summary 

judgment. ESS reiterated its allegations that Harvey, a former ESS employee, left 

ESS to join a competitor, Concord, and Harvey and Concord then solicited James to 

leave ESS and join Concord. ESS alleged James provided confidential information 

to Concord while still employed at ESS, and both James and Harvey stored 

information for physicians and hospital representatives on their personal cell phones. 

Incorporated into the response were special exceptions complaining that 

appellees’ “hybrid motion” for summary judgment containing both traditional and 
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no-evidence grounds did not clearly set forth the standards on which they sought 

summary judgment. Specifically, ESS argued appellees failed to meet the specificity 

requirements in moving for summary judgment on ESS’s claims for breach of 

contract, misappropriation of trade secrets, tortious interference with existing 

contracts, and breach of fiduciary duty. Alternatively, ESS complained that 

appellees failed to assert the specific elements of these claims for which there was 

no evidence. ESS also objected to appellees’ “general assertions that ESS has failed 

to prove its claim because general assertions are not proper summary judgment 

evidence.” 

In addition to these objections, ESS argued appellees were not entitled to 

summary judgment on ESS’s claims because, among other things, a fact issue 

existed as to ESS’s damages associated with each of its claims, and ESS produced 

sufficient evidence of damages to defeat no-evidence summary judgment as to each 

of its claims. Specifically as to damages for Harvey and James’ alleged breach of 

contract, ESS cited the affidavit of Shonda Rupe, ESS’s COO, as establishing ESS 

incurs significant expense in creating physician lists, maintaining relationships with 

physicians and hospitals, and recruiting new physicians; each time Harvey and 

James disclosed ESS’s confidential information, the value of that information was 

greatly diminished; physicians or hospitals wishing to end their relationship with 

ESS normally paid a fee between $25,000 and $50,000 “to allow the buy-out of 

restrictive covenants that ESS has with the physician and/or hospital”; and this fee 
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was “a reasonable amount to place ESS back in a position it would have been it [sic] 

had the breaches never occurred.” Rupe’s affidavit refers to the $25,000 to $50,000 

fee as a “placement fee” or “restrictive covenant buy-out fee” that is “routinely 

included in contracts with physicians and hospital clients to ensure compensation for 

the efforts to recruit, retain and develop confidential information related to a 

physician later retained and placed by a competitor.” Regarding the 

misappropriation claim, ESS cited section 134A.004(a) of the civil practice and 

remedies code for the proposition that, “[i]n lieu of damages measured by any other 

methods, the damages caused by misappropriation may be measured by imposition 

of liability for a reasonable royalty for a misappropriator’s unauthorized disclosure 

or use of a trade secret.” Again, relying on Rupe’s affidavit, ESS argued the $25,000 

to $50,000 fee was “a reasonable royalty for each misappropriation in this case,” and 

the jury should be allowed to decide the proper amount of ESS’s royalty. As to 

damages for tortious interference, ESS reiterates the $25,000 to $50,000 fee would 

“place ESS back in a position it would have been it [sic] had the breach never 

occurred.” Regarding its breach of fiduciary duty claim, ESS did not directly address 

the damages issue; instead, ESS renewed its argument that appellees did not 

“specifically list out what elements of the cause [had] no evidence.” 

On October 28, 2020, the day before the hearing on appellee’s motion for 

summary judgment, ESS filed its third amended petition implying that it was only 

nominally harmed by appellees’ actions by seeking the recovery of nominal 
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damages. That same day, appellees filed an objection and motion to strike the third 

amended petition on the grounds that it was filed untimely pursuant to the terms of 

the trial court’s September 17, 2020 scheduling order providing that the time for 

“Pleadings asserting a new claim(s) for affirmative relief” had “CLOSED.” 

Appellees also argued that the third amended petition was untimely under rule of 

civil procedure 63 “designed to prevent the filing of last-minute amended petitions.” 

On December 7, 2020, following a hearing, the trial court signed an order 

striking ESS’s third amended petition and granting appellees’ traditional and noevidence motion for summary judgment. The same day, the trial court signed an 

order granting ESS’s traditional motion for summary judgment and dismissing with 

prejudice Harvey and James’ declaratory judgment action. ESS filed a notice of 

appeal from the trial court’s order granting appellees’ motion for summary 

judgment, and Harvey and James filed a cross-notice of appeal from the trial court’s 

order granting ESS’s motion for summary judgment. 

ANALYSIS: 

ISSUE ONE – STRIKING THIRD AMENDED PETITION 

In its first issue, ESS argues the trial court abused its discretion in striking its 

third amended petition. 

Generally, a party may amend its pleadings at any time prior to seven days 

before trial unless the amended pleadings operate as a surprise to the opposing party. 

TEX. R. CIV. P. 63. A trial court has no discretion to refuse the amendment unless 
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(1) the opposing party presents evidence of surprise or prejudice or (2) the 

amendment asserts a new cause of action or defense, and thus is prejudicial on its 

face, and the opposing party objects to the amendment. State Bar v. Kilpatrick, 874 

S.W.2d 656, 658 (Tex. 1994); Gunn v. Fuqua, 397 S.W.3d 358, 377 (Tex. App.—

Dallas 2013, pet. denied). 

The deadline for filing an amended petition imposed by rule 63 may be altered 

by the trial court in a scheduling order issued pursuant to rule 166. TEX. R. CIV. P. 

63. A party may seek leave of court to amend its pleadings after the deadline 

imposed by a scheduling order entered pursuant to rule 166. Id. We review a trial 

court’s enforcement of a scheduling order for an abuse of discretion. Gunn, 397 

S.W.3d at 377; see also Hardin v. Hardin, 597 S.W.2d 347, 349–50 (Tex. 1980). 

An abuse of discretion occurs when the trial court acts in an unreasonable and 

arbitrary manner, or when it acts without reference to any guiding rules or principles. 

Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003). 

When amendments which introduce a new substantive matter have been 

refused by the trial court under rule 63, the burden of showing an abuse of discretion 

is on the complaining party, rather than on the opposite party to show surprise. 

Hardin, 597 S.W.2d at 349. On appeal, the trial court’s ruling will not be disturbed 

unless the complaining party clearly shows an abuse of discretion. Id. 

Here, despite this case proceeding over a course of years since it was initiated 

by ESS in March 2017, ESS waited until the day before a hearing was set on 
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appellees’ motion for summary judgment to file a third amended petition adding new 

claims for nominal damages. The record contains a September 16, 2020, joint 

motion filed by ESS and appellees requesting that the trial court enter a scheduling 

order providing that the deadline for “Pleadings asserting a new claim(s) for 

affirmative relief” was “CLOSED.” As requested, the trial court signed the 

scheduling order on September 17, 2020. Thus, when ESS filed its third amended 

pleading asserting a new claim on October 28, 2020, the deadline for doing so was 

closed pursuant to the scheduling order ESS itself requested. Under these 

circumstances, we conclude ESS has not shown that the trial court clearly abused its 

discretion in striking its third amended petition as untimely. See id. We overrule 

ESS’s first issue. 

SUMMARY JUDGMENT STANDARD 

In its second and third issues, ESS argues, as it did below, that appellees’ 

combined motion for summary judgment failed to delineate between a traditional 

and a no evidence summary judgment and failed to identify which elements of ESS’s 

claims lacked evidence under a no-evidence standard. Therefore, ESS contends, the 

trial court erred in overruling ESS’s objections and special exceptions. In its fourth, 

fifth, sixth, and seventh issues, ESS complains the trial court erred in granting 

appellees’ motion for summary judgment as to its claims for breach of contract, 

misappropriation of trade secrets, tortious interference with existing contracts, and 
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breach of fiduciary duty. Because of the interrelated nature of ESS’s arguments, we 

address them together. 

The standard for reviewing a traditional summary judgment is well 

established. See McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex. App.—

Dallas 2010, no pet.). The movant has the burden of showing that no genuine issue 

of material fact exists and that it is entitled to judgment as a matter of law. TEX. R.

CIV. P. 166a(c). In deciding whether a disputed material fact issue exists precluding 

summary judgment, evidence favorable to the nonmovant will be taken as true. In 

re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.—Dallas 2009, no pet.). Every 

reasonable inference must be indulged in favor of the nonmovant, and any doubts 

resolved against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 

2005). 

Rule 166a(i) provides that a party “may move for summary judgment on the 

ground that there is no evidence of one or more essential elements of a claim or 

defense on which an adverse party would have the burden of proof at trial.” TEX. R.

CIV. P. 166a(i). We review a no-evidence summary judgment under the same legal 

sufficiency standard used to review a directed verdict. See TEX. R. CIV. P. 166a(i); 

Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). Thus, 

we must determine whether the nonmovant produced more than a scintilla of 

probative evidence to raise a fact issue on the material questions presented. See 

Flood, 294 S.W.3d at 762. When analyzing a no-evidence summary judgment, “we 
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examine the entire record in the light most favorable to the nonmovant, indulging 

every reasonable inference and resolving any doubts against the motion.” Sudan v. 

Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller, 168 

S.W.3d at 823). A no-evidence summary judgment is improperly granted if the 

nonmovant presented more than a scintilla of probative evidence to raise a genuine 

issue of material fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 

2003). “More than a scintilla of evidence exists when the evidence rises to a level 

that would enable reasonable, fair-minded persons to differ in their conclusions.” Id.

(quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). 

“Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no 

more than create a mere surmise or suspicion’ of a fact.” Id. (quoting Kindred v. 

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). 

Under both standards, evidence favorable to the nonmovant will be taken as 

true. In re Estate of Berry, 280 S.W.3d at 480. The court indulges every reasonable 

inference in favor of the nonmovant and resolves all doubts in favor of the 

nonmovant. City of Keller, 168 S.W.3d at 824. We review a summary judgment de 

novo to determine whether a party’s right to prevail is established as a matter of law. 

Tex. Workforce Comm’n v. Wichita Cty., 548 S.W.3d 489, 492 (Tex. 2018). When 

a trial court's order granting summary judgment does not specify the ground or 

grounds relied on for the ruling, summary judgment will be affirmed on appeal if 
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any of the theories advanced are meritorious. Rogers v. Ricane Enterprises, Inc., 

772 S.W.2d 76, 79 (Tex. 1989). 

No-evidence and traditional grounds for summary judgment may be combined 

in a single motion. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004); Coleman 

v. Prospere, 510 S.W.3d 516, 518 (Tex. App.—Dallas 2014, no pet.). The substance 

of the motion and not its form or the attachment of evidence determines whether the 

motion is a no-evidence, traditional, or combined. Binur, 135 S.W.3d at 650–51; 

Coleman, 510 S.W.3d at 518. When a party files both a no-evidence and a traditional 

motion for summary judgment, we first consider the no-evidence motion. Ford 

Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Coleman, 510 S.W.3d at 

518. 

ANALYSIS: ISSUES TWO THROUGH SEVEN - DAMAGES 

Appellees’ motion for summary judgment first set out the standards of review 

for both traditional and no-evidence motions for summary judgment. Regarding 

ESS’s breach of contract claim, appellees argued ESS “failed to make any showing 

that Harvey or James engaged in conduct that would violate the non-competition 

provision of their employment agreements,” and “ESS has not proved damages 

resulting from any of the contacts made with any practitioner.” Regarding ESS’s 

misappropriation of trade secrets claim, the motion asserted ESS “failed to offer any 

evidence to support its claims under the Texas Uniform Trade Secrets Act, or to 

substantiate any of its claims regarding misappropriation of confidential 
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information.” As to the tortious interference with current contracts claim, the motion 

noted that “Texas law protects existing as well as prospective contracts from 

interference” but argued that ESS “entirely failed to provide any evidence 

demonstrating a willful or intentional act of interference by Concord with the subject 

contracts,” and “ESS has yet to show any injury or actual loss.” Regarding the 

tortious interference with prospective contracts claim, the motion asserted ESS “has 

wholly failed to provide any evidence on more than one element of its tortious 

interference with prospective business contracts claim against Defendants Harvey, 

James, and Concord,” and ESS “failed to show proximate cause or any actual 

damages or loss.” As to the breach of fiduciary duty claim, the motion asserted there 

was “no evidence Defendant James misappropriated trade secrets or disclosed 

confidential information to Concord while employed with” ESS to support such a 

claim. The motion specifically asserted that ESS had not “put forth evidence that it 

suffered any damages to the company’s goodwill, business reputation, and customer, 

physician, and employment relationships” and had not shown misappropriation or 

damages from “its classification of publicly accessible information as trade secrets.” 

We conclude appellees’ motion for summary judgment made it sufficiently 

clear that, among other things, appellees were arguing that there was no evidence 

ESS incurred any damages arising from any of its claims. See Binur, 135 S.W.3d at 

650–51; Coleman, 510 S.W.3d at 518. Damages are an element of all claims 

asserted by ESS. See Nat’l Health Res. Corp. v. TBF Fin., LLC, 429 S.W.3d 125, 
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131 (Tex. App.—Dallas 2014, no pet.) (breach of contract); Trilogy Software, Inc. 

v. Callidus Software, Inc., 143 S.W.3d 452, 463 (Tex. App.—Austin 2004, pet. 

denied) (misappropriation of trade secrets); Prudential Ins. Co. of Am. v. Fin. Rev. 

Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000) (tortious interference with contract); 

Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 838 

(Tex. App.—Dallas 2014, no pet.) (breach of fiduciary duty). 

ESS alleged appellees’ misconduct “caused damage to ESS’s confidential 

information, goodwill, business reputation, and customer, physician, and 

employment relationships.” ESS alleged it “has and will continue to suffer 

damages” as a result of appellees’ breach of the employment agreements, “seeks all 

actual damages to which it is entitled” for appellees’ misappropriation of trade 

secrets, “incurred actual damages or losses in [an] amount to be determined at trial” 

for tortious interference with prospective and existing contracts, and appellees’ 

breach of fiduciary duty “caused monetary injury to ESS in an amount to be 

determined at trial.” However, ESS never identified any specific amount of damages 

attributable to any specific action on the part of appellees or to any specific theory 

of recovery. 

A no-evidence summary judgment motion under Rule 166a(i) is essentially a 

motion for a pretrial directed verdict; it requires the nonmoving party to present 

evidence raising a genuine issue of material fact supporting each element contested 

in the motion. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 
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310 (Tex. 2009). If the nonmovant fails to satisfy its burden, the trial court “must 

grant the motion[.]” TEX. R. CIV. P. 166a(i). In its response to appellees’ motion for 

summary judgment, ESS repeatedly referred to Rupe’s affidavit referencing a 

$25,000 to $50,000 fee as a “placement fee” or “restrictive covenant buy-out fee” 

that is “routinely included in contracts with physicians and hospital clients.” It is 

well established that damages must always be proved with reasonable certainty. 

Perthuis v. Baylor Miraca Genetics Laboratories, LLC, 645 S.W.3d 228, 243 (Tex. 

2022). Rupe’s affidavit offers only conclusory statements with no underlying facts 

to support the conclusions. See James L. Gang & Assoc. v. Abbot Labs., Inc., 198 

S.W.3d 434, 439 (Tex. App.—Dallas 2006, no pet.); see also Trebuchet Siege Corp. 

v Pavecon, 2014 WL 4071804 at *5 (Tex. App.—Dallas, 2014, no pet.). ESS’s 

evidence of damages, Rupe’s affidavit, offers little more than a fee range basis with 

neither objective evidence of injury associated with any cause of action, nor an 

amount established with reasonable certainty2

 Based on this record, we conclude 

neither Rupe’s affidavit, nor the evidence presented raised a genuine issue of 

material fact supporting the element of damages for any of ESS’s claims; therefore, 

the trial court did not err in granting appellees’ motion for summary judgment as to 

2

 Rupe avers “This range of fees also represents a reasonable and fair damage for the disclosure of 

confidential information that leads to the placement of a physician by a competitor without the cost of 

recruitment.” The record is devoid of any evidence of specific damages associated with an act of appellees. 
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all of ESS’s claims. See TEX. R. CIV. P. 166a(i); Gish, 286 S.W.3d at 310. We 

overrule ESS’s second, third, fourth, fifth, sixth, and seventh issues. 

ANALYSIS: ISSUE EIGHT 

In its eighth issue, ESS argues the trial court erred in dismissing its tortious 

interference with existing and prospective business contracts claim when there was 

no pending motion for summary judgment as to this claim and no party moved for 

its dismissal. On the contrary, as we have discussed, appellees’ motion for summary 

judgment addressed the tortious interference with both existing and prospective 

contracts claims and asserted there was no evidence of damages related to those 

claims. Accordingly, we overrule ESS’s eighth issue.3

ANALYSIS: CROSS ISSUES 

In three issues as cross-appellants, Harvey and James assert the trial court 

erred in granting ESS’s motion for summary judgment on their declaratory judgment 

claims, the underlying employment agreement was “an otherwise enforceable 

agreement,” and the non-competition provision of the agreement contained 

unreasonable limitations and restrictions. 

We initially question whether our disposition of ESS’s issues renders Harvey 

and James’ cross-appeal moot. However, to the extent Harvey and James argue that 

summary judgment was improper on their declaratory judgment claims, we note that 

3

 We also overrule issue eight to the extent necessary on the same basis as issues two through seven as 

to no evidence of damages. 
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“[t]here is no basis for declaratory relief when a party is seeking in the same action 

a different, enforceable remedy, and a judicial declaration would add nothing to what 

would be implicit or express in a final judgment for the enforceable remedy.” Kyle 

v. Strasburger, 522 S.W.3d 461, 467 n.10 (Tex. 2017) (quoting Universal Printing 

Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.—Houston 

[1st Dist.] 2001, pet. denied)). Under these circumstances, we conclude summary 

judgment was proper on Harvey and James’ declaratory judgment claims. See TEX.

R. CIV. P. 166a(c); Kyle, 522 S.W.3d at 467 n.10. Because of our disposition of this 

issue and ESS’s issues, we need not further address Harvey and James’ issues on 

cross-appeal. TEX. R. APP. P. 47.1 

We affirm the trial court’s judgment. 

210148F.P05 

 

/Bonnie Lee Goldstein/

BONNIE LEE GOLDSTEIN 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

EMERGENCY STAFFING 

SOLUTIONS, INC., Appellant 

No. 05-21-00148-CV V. 

KEVYN HARVEY, HEATHER 

JAMES, AND CONCORD 

MEDICAL MANAGEMENT, LLC, 

Appellee 

 On Appeal from the 471st Judicial 

District Court, Collin County, Texas 

Trial Court Cause No. 471-01515-

2017. 

Opinion delivered by Justice 

Goldstein. Justices Partida-Kipness 

and Reichek participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is AFFIRMED. 

 It is ORDERED that appellee KEVYN HARVEY, HEATHER JAMES, 

AND CONCORD MEDICAL MANAGEMENT, LLC recover their costs of this 

appeal from appellant EMERGENCY STAFFING SOLUTIONS, INC.. 

Judgment entered this 4th day of January 2023.