Legal Case Summary

From the land we're also home at all. Okay Mr. Baker, will you read? Good morning Your Honor my name is Dorsey Baker. With me at the council table just an end of this dose. Would the lover represent the Apollo? Council my years are bad today and you're going to have to talk up higher and louder if you want me to hear. I certainly do want you to hear your Honor and I will try to do that. May I please the court? I'm sorry, is that your room? I like that room. That's not the room. I'm a rear. The other one. This one. Now in the past this court has repeatedly determined and stated that judicial admissions and responses to requests or admissions under rule 36 are can be severely established for the entire purposes of the lawsuit. In this case there were over 20 responses to request for admissions that were admitted. There were numerous judicial admissions in the pleadings of the defendant's Wilson and lab. Not one of those 20 admissions and judicial admissions found its way into the findings of fact of the trial court below. Now those request for admissions and the conclusions of the admissions that were judicial admissions are scattered throughout the record in the sketch. But in order to facilitate this court's determination I've gone through the record I have compiled the 20 judicial admissions that were referred to in our briefs. I have copied them. I would like to hand them up to the court. Now counsel tell me right off the bat were these incorporated by the trial judge and his funding is a fact and conclusions of law. There is not a single one of these judicial admissions to be found in the 62 findings of fact of the court below. Now I'd like to draw the court's attention particularly to one particular judicial admission. It occurred in the pleading of the defendant Wilson

. It's on the second page and it's paragraph number 62 of the second amended answer of the defendant Wilson. It's a long one but I'd like to read the entirety of it into this record because it contains several inclusive admissions that are determinative of this lawsuit. The other notice of hunts impending for each of the agreement to draft the drawings in a timely manner and that no one at hunn design had any knowledge relating to the drawings and proxies. Dan Wilson homes in determined that the best course of action was to pay like to complete the two drawings that were nearing completion while being undesigned the right previously agreed upon as you have honned remained employed at hunn and to fairly compensate on design for any work performed on the drawings that were not near completion. This course of action was necessary to protect the interest of Dan Wilson homes and would leave undisigns in a better position than if hey like remained employed at undesigned B if another hunn design employee completed the drawings. See if Dan Wilson homes retained another drafting company to complete the drawing. Now going through that rather slowly that is a clear admission that my client breach no agreement. It was only a quote impending breach. It had not occurred and did not occur. What did occur though was a complete repudiation of the agreement but Dan Wilson. It was Dan Wilson who determined that the best course of action was to pay like the former employee to complete the two drawings in question. And that was his course of action that he determined I submit it was a clear repudiation that Dan Wilson of the contracts and issued. That you did this admission and never made it to the findings of the district court. Did Dan did Dan Wilson homes pay hunn design the rate previously agreed upon as it black remained employed? I'm sorry you are not. Did Dan Wilson pay for the entire job to hunt? I think the answers no. That is a point of contention. They clearly offered a check of $10,000 to pay for partial work. But not for the completion of the entire project. That is our position. I believe there was oral testimony to that effect. But then the district court found that Wilson made this offer to hunt and hunn said I can't do work or can't do it time. So that the work can be done

. That is what the court found. Not quite your honor. Let me explain. The statement in the pleading of Wilson was that he asked my client when he was going to get them finished. My client responded saying, I believe this is the correct quote, I don't know when I can get them done. Close quote. That was all that was said by my client. Now bearing in mind, the employee had just left. He had 16 residential design contracts that he was supposed to be working on. He left all 16 for my client to go to each homeowner figure out, well what's critical, what do I do next? How do I accommodate all of my clients? The evidence is that my client accommodated every one of us, except for Dan Wilson who repudiated that contract. Well, but didn't Wilson provide testimony that Hunn said he couldn't finish him timely so that it pretty much forced Wilson to go do something else. First of all, again, I'm telling you that is contrary to their pleading. But was there evidence of that? Yes, there was oral testimony. And my point in this whole matter is, your honor, that this court has repeatedly said that district court cannot ignore conclusively established findings of admissions or judicial admissions in favor of oral testimony. So what do you, I didn't understand what you find here that's inconsistent with that version that Wilson came up with a trial. Well, the first thing is, if you look at the district court's decision at paragraph 13, he says, Wilson did not breach the contract. That's a finding of the district court. If you go to this conclusion, this judicial admission of paragraph 51 is to the contrary. Wilson repudiated the contract. He engaged what? To go into competition with my client. It's what we might call a law school an efficient breach where he decided that he would go and get it done. And I'm not saying that that makes it okay

. That's just a concept. He decided that he would go ahead and do something different before waiting for a hunt to breach. According to this pleading, he decided he would take his own course of action for two reasons. One is, the people remaining at my client were not familiar with the homeowners are the designs and progress. So he wanted to take the contract and give it to home. That's one reason. The second reason was that he was concerned with a quote, impending breach. I understand that. That was not necessarily an unfriendly question. It's undisputed that Mr. the day in Wilson homes, but people knew that there was a non-compete, correct? It's undisputed that they knew there was a non-compete between lack and hunt, correct? I don't know that. I believe the testimony that trial was. Mr. Wilson did not know about the non-compete. He did not know about it. That was the thing. He was completely in the dark. If so, if Mr. Lac was violating his non-compete, he was not aiding and abetting in that in some way. Because he didn't know about it. Is that the position of Mr. Wilson's company? You're under the completely injured question

. I think there's two aspects of it. When you say he did not participate, the participation that is wrong here is the engagement of WAC, whose stolen lock clients are drawing. I'm not in disagreement with you on that council for the purpose of the question. I'm just wondering if it shows undisputed evidence and tests a trial, and I'll ask the other side that question. Where can we go in the record to find out, to look at the plans that were delivered to the to Dan Wilson homes, to compare them to determine if they were substantially similar to the as-built plans? Where do we go in the record for that? Because we have to do this substantially similar analysis ourselves. We are. To determine if it was clearly erroneous or not. And I want to know where do I go in the record to get the plan so I can compare them. I'd like to really direct your attention to that, to answer that. First, our position is there was a judicial admission. They were substantially similar. Okay, but that's... No, I'm the next one. First of all, if you go back to this paragraph, 62, Dan Wilson says there were two drawings, and that was the Brown residents and the McKee residents that were near completion. That's what they finished. I submit to this court that that judicial admission of near completion is totally equivalent to substantial similarity. Okay, that I'll take that as your first answer to that. That's my first answer to that. My second answer is that we have included in your excerpts, comparison, side by side, which is courtesan store. What this court has said to be determined is the issue of substantial similarity

. Okay, and those are the definitive documents we're supposed to use. I thought there was some dispute about that. Those are the documents that we're supposed to use. Yes, sir. That gives you the side by side, and you will see there that if you look at the overall form, which is a part of the definition of an architectural design, it says you look at the overall form, the composition of the spaces, and the overall arrangement. Our position is that no rational person could conceivably come to conclusion that there was not deliberate plagiarization. They copied. Did your client give the AutoCAD software to lack? I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry

. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. OK. OK. OK. I'm a pretty good guy. OK. I'm a pretty good guy. We are looking at the models of Korea. expression dichotomy. It's been in every copyright act since then. In section 102 B says that ideas and concepts are specifically excluded from a copyright or for the registration. The district court never got that fundamental idea and as a result this judgment cannot stand. We're asking this court. I'm sorry

. We're asking this court to reverse and to render. Everything is stated in the breeze. There's clear infringement. We're entitled to what's called the Builders' Feed and we asked the court to reverse and run. Thank you. Please the court. My name is Marion Sanford. I've counseled for the Wilson of Kelly, Stan Wilson and Dan Wilson Holmes and Corporate. There's also counsel for Ben Lack here, who's going to take the last ten minutes of this 20-minute section. I've had a plan to talk about what I really like to address some of the things that we're just spoken about first. First, there was this con that the district court that Judge Cummings has taken senior status within of the year doesn't understand copyright law at all. He has a fundamental misunderstanding of the entire realm of copyright law. That's not true. Judge Cummings went through and the reason he was interested in who brought the design elements, who brought the creative elements out there is because Judge Cummings was trying to get a handle on the license issue, trying to get an understanding of is this a non-exclusive situation where the builder comes in and says, I have a client, I have a project, I already have the design going. Everything is in the works. I now need to start getting my concrete guy and my frame-reguide, my draftsman guy in on this project. I already have the design, I already know what I'm going to do. In that respect, who brings in the creative elements out there are very important. If you look at cases that came out like I, a E-Version shabber, if you look at cases like the Born Vs Disney case, all of that was relevant to the license issue. He wasn't trying to say that ideas are protected under copyright. Well, the esteemed district court is not in trial here. So can you give to your I said responding to a comment made by posing counsel

. Can we hear about why your client is not responsible for any of these deeds? Sure, you're on a, there's two types of copyright cases involving builders and architects generally. The first type is a case where the builder comes out and steals a plan or takes a plan and uses it multiple times and paying once. Those kinds of cases and poorly for builders. That's the Kip Flores case, that's the pin hollow case. There's another type of case where the builder is the genesis of the project. The builder is hired to develop a particular piece of property. And the builder, it brings in the design elements, the builder brings in everything to do with it. At some point, he hires a draftsman as a subcontractor and brings that draftsman to contribute to that project. Right, but the problem is here, the hard, he hard hun is the draftsman not black. Right, bin like was Mr. Hun's employee. Right, so he might have been able to go on and finish his project as taking ever the facts in your favor, not in the favor. He might have been able to finish his project with another draftsman using plans that were furnished to him. But could he use Mr. Lack, who has proprietary relationship with Mr. Hun? Yes, Your Honor, and it's because... Yes, Your Honor, and the reason why is that as the court found, Mr. Wilson had a, Daniel Wilson at home had a license to use those plans and finish them, those are..

. To use the plans, the paper plans they got, not to have Mr. Lack take AutoCAD software from his office or the files and manipulate on his home computer with stuff he had taken from his office. That's, that if you explain that. Those plans are the exact same plans that had been delivered to Daniels and Holmes. But once they're put on AutoCAD, it's a manipulable form. They're in a different form that is proprietary to Hun. Your Honor, AutoCAD is just a program that takes data and presents some of that. Okay, it's no different than if he had a manuscript on paper that was printed out from Word. Well, it's Word versus PDF. You can take the PDF version and do what you want from the last version you got, assuming that you do have some license to use it. But you can't take the Word embedded version that has all kinds of metadata and things and do what you want. And the AutoCAD does have the metadata. Your Honor, none of that was put into evidence on trial as to what was proprietary at all to Hun. Matter of fact, there's some specific finding from the court that all of that, how to use that, how to use that metadata, how to do all of that, that lack brought that from his prior employment, that lack had that before he showed what was hired by Hun designs. There's specific findings that there was zero training for Viratomister Lack. There was specific findings that none of this software was for Viratomister Lack. It was all his own. Mr., this was all what you're describing or all things that Mr. Lack brought before he was hired by Hun designs. He used to have his own business to do these things. Okay, but can you get me to the part where it's okay for Mr

. Lack to go work with Wilson perhaps you want to save it for your other people? No, no, no, you're right. What happened with that is Mr. Wilson came in and offered four resolutions. What was talked about as this admission is a description of four resolutions described in paragraph 22 of the findings of fact, four resolutions that were rejected by Mr. Hun. Mr. Wilson said, please finish them, Mr. Hun, he wouldn't do it. He said, retain Lack a few more weeks and finish, and Mr. Hun wouldn't do it. He said, retain Lack as an independent contractor and finish him. He wouldn't do it. He said, okay, I'll pay you for what you've done and have somebody else finish it and have Lack finish it and he, Marshall Hun wouldn't do it. And he finally said, and this is something that was real important of Mr. Characterization earlier, Mr. Wilson said, look, I'm going to get Mr. Lack to finish these because he's off on his own where he can do this. And I'm going to pay you the entire purchase price. The tire price is if you done 100% of the work yourself and you're going to put your stamp on it, it's going to be your copy right on it. And after I get done building these, their year designs and Mr. Hun replied and said he would not accept that. And that was specifically Mr. Representative a few minutes ago, but that was referred to, it's in the brief, and on the record of a record of Piel 4701 through 04. Well, but to the extent that Mr. Lack can't work for Mr. Wilson because he has a non-compete and Mr. Wilson was originally Mr. Huns, a Miss Huns client. How is Wilson exonerated? Mr. Wilson had, first of all, he had no idea whatsoever about the non-solicitation agreement until after, after the fact. That's been established that was recognized by all parties. Okay. So first of all that happened. Second is there was, there's a finding from the court, and the court examined this issue at length, that there wasn't a breach of fiduciary duty after employment because Mr. Lack had nothing that was confidential. He returned to paper files, and all he had at home. The client name and the client project, he also had the AutoCAD version, which is manipulable, but he had the client name and the client project. Those are proprietary to the company. We do a lot of non-compete work in Texas courts, and non-compete work has gone way, it's changed the pendulum since light V, light in Centel and Shestionhof, and at the pendulum is very different now, and that was proprietary information. I don't understand how it's not. So maybe I'll let the other council tell me what's not. I think she's more prepared. But your position is he didn't know about it. It's not much of my position

. Representative a few minutes ago, but that was referred to, it's in the brief, and on the record of a record of Piel 4701 through 04. Well, but to the extent that Mr. Lack can't work for Mr. Wilson because he has a non-compete and Mr. Wilson was originally Mr. Huns, a Miss Huns client. How is Wilson exonerated? Mr. Wilson had, first of all, he had no idea whatsoever about the non-solicitation agreement until after, after the fact. That's been established that was recognized by all parties. Okay. So first of all that happened. Second is there was, there's a finding from the court, and the court examined this issue at length, that there wasn't a breach of fiduciary duty after employment because Mr. Lack had nothing that was confidential. He returned to paper files, and all he had at home. The client name and the client project, he also had the AutoCAD version, which is manipulable, but he had the client name and the client project. Those are proprietary to the company. We do a lot of non-compete work in Texas courts, and non-compete work has gone way, it's changed the pendulum since light V, light in Centel and Shestionhof, and at the pendulum is very different now, and that was proprietary information. I don't understand how it's not. So maybe I'll let the other council tell me what's not. I think she's more prepared. But your position is he didn't know about it. It's not much of my position. It's something that was found about it. Okay. Can you help me with substantial similarity and or copyright? They don't have to be identical, and so can you help me why they're not substantially similar? Absolutely, Your Honor. What you had, you had four plans that are issued, and these are briefed heavily in the briefing where it goes through and takes an actual record, and the side by side comparison, we're done by both parties, and looks at whether these items are similar or not. Now first of all, there was never any testimony about what were the creative elements that were copied. That's first. But second, there was a long period of testimony, and it's in some pages of the brief. I don't know which page it is. There it is. It's in there. It's on response pages 39 through 43, and it goes to that. I think you also have some boards that were marked up. They're going to be a hard because they're not live. But you agree that those things in the record excerpts are what I'm supposed to be comparing. Absolutely, Your Honor. And a quick and a quick comparison. The brown plan was identical, but that plan was drawn by Mr. Green Street, who isn't here today, and that plan is owned by Dan Wilson Holmes. That plan, a builder in Lubbock, brought the plan, the finished plans to Dan and said, build his house. And then Marshall Hunt was allowed to make a copy, and then he registered Mr. Green Street to work. That was our counter-clang

. It's something that was found about it. Okay. Can you help me with substantial similarity and or copyright? They don't have to be identical, and so can you help me why they're not substantially similar? Absolutely, Your Honor. What you had, you had four plans that are issued, and these are briefed heavily in the briefing where it goes through and takes an actual record, and the side by side comparison, we're done by both parties, and looks at whether these items are similar or not. Now first of all, there was never any testimony about what were the creative elements that were copied. That's first. But second, there was a long period of testimony, and it's in some pages of the brief. I don't know which page it is. There it is. It's in there. It's on response pages 39 through 43, and it goes to that. I think you also have some boards that were marked up. They're going to be a hard because they're not live. But you agree that those things in the record excerpts are what I'm supposed to be comparing. Absolutely, Your Honor. And a quick and a quick comparison. The brown plan was identical, but that plan was drawn by Mr. Green Street, who isn't here today, and that plan is owned by Dan Wilson Holmes. That plan, a builder in Lubbock, brought the plan, the finished plans to Dan and said, build his house. And then Marshall Hunt was allowed to make a copy, and then he registered Mr. Green Street to work. That was our counter-clang. So that one's not, that one was, that does have substantial similar votes, our plan. The second one that was nearing completion was the McGee House. Mrs. McGee became Mrs. Winder. What happened is the same time that all this was going on, and that, her house was almost finished. She got married. She'd been, before she had her husband died, I mean, she'd been married, husband died, remarried, and she reworked her house to include her husband. And so that plan, even though it was near completion, was reworked and no longer substantially similar, that was explained in there, and Mr. Lack testified that, yeah, sometimes you have plans that are almost finished, something happens, and you go back to the drawing board. And the other two plans weren't even close. The Jeffers' house was just an outline sketch, and that, and all we had was a hand sketch for some ideas on the showcase home. And so there was a substantial similarity. Well, there's no substantial similarity if you start off with just an outline, which I assume you ordinarily got from the draftsman, and then you finish the house. So, but aren't we concerned about whether what Wilson started with and used initially to begin the completion of the house was similar to what had been provided to it? That is, well, first of all, if there's not a license, I mean, those license issue first. But even on that, the derivative work issue depends upon, I might have time, but I'll finish the question. Depends upon substantial similarity, and this substantially, there has to be the creative elements that are copied into the new design. And there's a lot of cases out there that talk about, when you're talking about a house, there's millions and millions of houses out there, and there's only so many places you put the garage in the master suite and whatever. So you can't look at the general arrangement of the rooms. You have to look at the creative elements within the design. There was no showing of those elements at trial, and we've shown a lot of changes to have been made. Okay

. So that one's not, that one was, that does have substantial similar votes, our plan. The second one that was nearing completion was the McGee House. Mrs. McGee became Mrs. Winder. What happened is the same time that all this was going on, and that, her house was almost finished. She got married. She'd been, before she had her husband died, I mean, she'd been married, husband died, remarried, and she reworked her house to include her husband. And so that plan, even though it was near completion, was reworked and no longer substantially similar, that was explained in there, and Mr. Lack testified that, yeah, sometimes you have plans that are almost finished, something happens, and you go back to the drawing board. And the other two plans weren't even close. The Jeffers' house was just an outline sketch, and that, and all we had was a hand sketch for some ideas on the showcase home. And so there was a substantial similarity. Well, there's no substantial similarity if you start off with just an outline, which I assume you ordinarily got from the draftsman, and then you finish the house. So, but aren't we concerned about whether what Wilson started with and used initially to begin the completion of the house was similar to what had been provided to it? That is, well, first of all, if there's not a license, I mean, those license issue first. But even on that, the derivative work issue depends upon, I might have time, but I'll finish the question. Depends upon substantial similarity, and this substantially, there has to be the creative elements that are copied into the new design. And there's a lot of cases out there that talk about, when you're talking about a house, there's millions and millions of houses out there, and there's only so many places you put the garage in the master suite and whatever. So you can't look at the general arrangement of the rooms. You have to look at the creative elements within the design. There was no showing of those elements at trial, and we've shown a lot of changes to have been made. Okay. All right. The deal. May it please the court. My name is Elizabeth Hill, and I represent Ben Lack. I'd like to start off by diving into Judge L. Rodd's questions regarding non-compete law in Texas at this time. Here we have a non-solicitation agreement that was entered at the time of an at will employment agreement, and looking at the face of the documents themselves, they're completely void of any consideration. Now, Hun asked this court to imply consideration as the Texas Supreme Court did in fielding and look to the job duties that are identified for Lack, and Judge Cummings did just that in the summary judgment order, looking to those specific job duties. We have design. We also have a reference to the CAD computer system, and that seems to be the the element of contention that Hun relies on as a confidential element that allegedly Lack took away, but even in the language of the non-solicitation agreement, Hun identified that as standard. In fact, Judge Cummings referenced that that Hun could have drafted this at will employment agreement in any manner, yet used standard CAD installation, and that while Lack may have some management of spec clients, just having mere contact with clients, mere contact with customers rather than an entire customer list, that that by itself does not rise to the level of a trade secret. In fact, this court evaluated when you can imply consideration in a non-competed agreement in Ray Mart, and versus stock building supply company, back in 2008, just a year before fielding, in fact. But the law has changed substantially since then, hasn't did in Texas. It is true that the Texas Supreme Court has expanded the Covenant's not to compete at. That is absolutely true. However, this particular non-solicitation agreement is an example of a naked restraint on trade, and there are competing policy considerations and enforcing non-competes, and this is an example of when a non-solicitation is attempting to be enforced with no consideration. Okay. This is a rather bald, non-competed violation, if it were, in effect though, isn't it? It's the very client. It's not some list you take, and then you start cold, cold-colling people later. This is the very client and an ongoing project on that particular project. So there's none of the defenses like, oh, we knew each other otherwise, and this is a different project. If it's valid, it's a bald violation, isn't it? Your Honor, we disagree

. All right. The deal. May it please the court. My name is Elizabeth Hill, and I represent Ben Lack. I'd like to start off by diving into Judge L. Rodd's questions regarding non-compete law in Texas at this time. Here we have a non-solicitation agreement that was entered at the time of an at will employment agreement, and looking at the face of the documents themselves, they're completely void of any consideration. Now, Hun asked this court to imply consideration as the Texas Supreme Court did in fielding and look to the job duties that are identified for Lack, and Judge Cummings did just that in the summary judgment order, looking to those specific job duties. We have design. We also have a reference to the CAD computer system, and that seems to be the the element of contention that Hun relies on as a confidential element that allegedly Lack took away, but even in the language of the non-solicitation agreement, Hun identified that as standard. In fact, Judge Cummings referenced that that Hun could have drafted this at will employment agreement in any manner, yet used standard CAD installation, and that while Lack may have some management of spec clients, just having mere contact with clients, mere contact with customers rather than an entire customer list, that that by itself does not rise to the level of a trade secret. In fact, this court evaluated when you can imply consideration in a non-competed agreement in Ray Mart, and versus stock building supply company, back in 2008, just a year before fielding, in fact. But the law has changed substantially since then, hasn't did in Texas. It is true that the Texas Supreme Court has expanded the Covenant's not to compete at. That is absolutely true. However, this particular non-solicitation agreement is an example of a naked restraint on trade, and there are competing policy considerations and enforcing non-competes, and this is an example of when a non-solicitation is attempting to be enforced with no consideration. Okay. This is a rather bald, non-competed violation, if it were, in effect though, isn't it? It's the very client. It's not some list you take, and then you start cold, cold-colling people later. This is the very client and an ongoing project on that particular project. So there's none of the defenses like, oh, we knew each other otherwise, and this is a different project. If it's valid, it's a bald violation, isn't it? Your Honor, we disagree. We believe that HUNN did not protect any of the confidential information, and that that is a customer list that HUNN expressly referenced in his deposition was not taken away by LAC, and the AutoCAD program, which is a program used and was already owned on LAC's own computer. He took the files from his work and didn't give them back when he left. He brought the hard copy back, but didn't give the computer files then enabled, and that's undisputed. This is not a clearly erroneous situation. He took the files from his work, knew that he needed to give hard copies back, but serotoniously kept the files on his computer so he could continue to work on the project, the very project that his employer had been hired to do. Your Honor, that is correct. However, HUNN testified at trial on page of the 29 that he was well aware that LAC had files at home that he definitely expected LAC to have those electronic files at home that he knew that LAC had an older version of AutoCAD and that he had to convert those. In fact, in HUNN's deposition on page 37 of HUNN's deposition, he acknowledged that he had also emailed AutoCAD files to clients. I don't understand at all why that's relevant to him using the information to benefit his subsequent business in direct competition with his employer. You may have allowed the employee to take home all sorts of information, but if the employee, when he sees it's being employed, uses it to directly compete with you. It doesn't mean that you authorize that or that that was a proper use of that information. Yes, Judge L. Rad, but courts draw the line on finding a breach of fiduciary duty after post termination of employment with confidential information and trade secrets. I'm still hung up on your non-compete, certainly. And we can certainly, the two are very intertwined and it really turns on the district court's factual determination that LAC never received any confidential information. So even if on the face, on the face, hypothetically, if this court were to find that the non-compete could be enforced, it never became enforceable because HUNN never transferred confidential information to LAC. The Texas Supreme Court has noted that a non-compete agreement, even if it's a luxury at the time that it's entered, then it can become enforceable later. This never became enforceable because there was never that confidential information that was transferred to LAC. HUNN never for about any conditions to those files when they were delivered to Wilson and other home builders and home buyers on a weekly basis. He never asked any of those customers to sign a non-disclosure. They were not treated as confidential information or trade secrets. And that really is the line that courts should draw whenever finding a breach of fiduciary duty after employment

. We believe that HUNN did not protect any of the confidential information, and that that is a customer list that HUNN expressly referenced in his deposition was not taken away by LAC, and the AutoCAD program, which is a program used and was already owned on LAC's own computer. He took the files from his work and didn't give them back when he left. He brought the hard copy back, but didn't give the computer files then enabled, and that's undisputed. This is not a clearly erroneous situation. He took the files from his work, knew that he needed to give hard copies back, but serotoniously kept the files on his computer so he could continue to work on the project, the very project that his employer had been hired to do. Your Honor, that is correct. However, HUNN testified at trial on page of the 29 that he was well aware that LAC had files at home that he definitely expected LAC to have those electronic files at home that he knew that LAC had an older version of AutoCAD and that he had to convert those. In fact, in HUNN's deposition on page 37 of HUNN's deposition, he acknowledged that he had also emailed AutoCAD files to clients. I don't understand at all why that's relevant to him using the information to benefit his subsequent business in direct competition with his employer. You may have allowed the employee to take home all sorts of information, but if the employee, when he sees it's being employed, uses it to directly compete with you. It doesn't mean that you authorize that or that that was a proper use of that information. Yes, Judge L. Rad, but courts draw the line on finding a breach of fiduciary duty after post termination of employment with confidential information and trade secrets. I'm still hung up on your non-compete, certainly. And we can certainly, the two are very intertwined and it really turns on the district court's factual determination that LAC never received any confidential information. So even if on the face, on the face, hypothetically, if this court were to find that the non-compete could be enforced, it never became enforceable because HUNN never transferred confidential information to LAC. The Texas Supreme Court has noted that a non-compete agreement, even if it's a luxury at the time that it's entered, then it can become enforceable later. This never became enforceable because there was never that confidential information that was transferred to LAC. HUNN never for about any conditions to those files when they were delivered to Wilson and other home builders and home buyers on a weekly basis. He never asked any of those customers to sign a non-disclosure. They were not treated as confidential information or trade secrets. And that really is the line that courts should draw whenever finding a breach of fiduciary duty after employment. Now certainly had there been something before employment, that would be different, but the allegation is that this was used after employment. Well, the allegation is, they would have to find clearly Rony is here. The allegation is that he or perhaps one of the admissions and we have to find that apply. The allegation is that he intended this while he was still working and that this was a scheme. So it is not true that this was just the allegation that it's after. The allegation is that it's before, but the judge, the court, found that it was after. That's absolutely correct, Judge Elrod. In fact, Judge Cummings noted in footnote seven on page nine of his opinion that he weighed the credibility of LAC's testimony concerning why he had these files transferred two days prior or a day prior to his termination and that he found his testimony credible. That LAC expected that he would continue on to be employed for two weeks and that during that time he would be able to finish the plans for Wilson. If we find that there is a judicial admission that is contrary to a factual finding of the trial court, which controls? Well, Your Honor, here the court found consistent with the judicial admission. That's not my question. Well, if they are inconsistent, which controls as a matter of law or as a matter of evidentiary review by this court? Well, we would agree that if there is a finding of fact that is entirely inconsistent with the judicial admission and that it's not explained by some other reason that might be clear error. However, here the findings of fact that Judge Cummings made were clearly consistent with the judicial admission because LAC admitted that the file was transferred, but the admission did not ask why. The admission did not ask for the purpose. And is this court noted in navigate consulting just a few years ago that in evaluating and scrutinizing and employee's actions shortly prior to their departure that those actions certainly can be shaded by that departure and that you have to look to the intent and hear the district court did just that and found LAC's testimony credible. Now, in looking at the breach of fiduciary duty, this unrelives on this court's decision in NCH Corporation versus Royals dating back to 1985 and there to compare the level of customer information that was taken by the employee in that case, there was a customer route list that included the customer's contact information, the orders that they had made, the frequency, the price list and that customer and that, excuse me, that employee took it away and then used it in competition and here this court did find that that was a breach of fiduciary. Why isn't this even more of a gregious breach in that it's not just a list of the customer, I mean it's a direct con, the name, the contact information and the project itself. Here because there is no confidential trade secret information that was taken away and then used against the former employer, it is not a breach of fiduciary duty because as courts have noted there must be an element of secrecy and otherwise if there is not that fiduciary duty ends on the date that the employment terminates and that's for some. Did Wilson tender to the amount of the job that he got right to do? Did he go ahead and pay? Hunter anyway, even though lack was no longer working for him? Yes, your honor. Wilson attempted to pay at first the portion that he had completed and then attempted to pay him the entire amount and unrejected that and as Judge Cummings noted, Hunter took a course of action to advance litigation and that is where then an equitable nature was found and unclean hands and it's for- Why is that unclean? If you believe the person's breached and you don't want to accept the settlement, I mean why isn't it actually indication that Wilson knew it was wrong because if he's just in a regular arms-length relationship with the new draft with the drafter, why would he offer to pay for the work the drafter did? He wouldn't owe the un anything because he says he doesn't know about the non-compete and the non-solicitation. Why isn't that actually evidence that he knows that he's done something wrong? Here it was not your honor, it was an attempt to avoid further litigation to essentially avoid today- But it doesn't, it doesn't, it plays out either way. I mean you can't say it's a good thing or a bad thing because it could be either

. Now certainly had there been something before employment, that would be different, but the allegation is that this was used after employment. Well, the allegation is, they would have to find clearly Rony is here. The allegation is that he or perhaps one of the admissions and we have to find that apply. The allegation is that he intended this while he was still working and that this was a scheme. So it is not true that this was just the allegation that it's after. The allegation is that it's before, but the judge, the court, found that it was after. That's absolutely correct, Judge Elrod. In fact, Judge Cummings noted in footnote seven on page nine of his opinion that he weighed the credibility of LAC's testimony concerning why he had these files transferred two days prior or a day prior to his termination and that he found his testimony credible. That LAC expected that he would continue on to be employed for two weeks and that during that time he would be able to finish the plans for Wilson. If we find that there is a judicial admission that is contrary to a factual finding of the trial court, which controls? Well, Your Honor, here the court found consistent with the judicial admission. That's not my question. Well, if they are inconsistent, which controls as a matter of law or as a matter of evidentiary review by this court? Well, we would agree that if there is a finding of fact that is entirely inconsistent with the judicial admission and that it's not explained by some other reason that might be clear error. However, here the findings of fact that Judge Cummings made were clearly consistent with the judicial admission because LAC admitted that the file was transferred, but the admission did not ask why. The admission did not ask for the purpose. And is this court noted in navigate consulting just a few years ago that in evaluating and scrutinizing and employee's actions shortly prior to their departure that those actions certainly can be shaded by that departure and that you have to look to the intent and hear the district court did just that and found LAC's testimony credible. Now, in looking at the breach of fiduciary duty, this unrelives on this court's decision in NCH Corporation versus Royals dating back to 1985 and there to compare the level of customer information that was taken by the employee in that case, there was a customer route list that included the customer's contact information, the orders that they had made, the frequency, the price list and that customer and that, excuse me, that employee took it away and then used it in competition and here this court did find that that was a breach of fiduciary. Why isn't this even more of a gregious breach in that it's not just a list of the customer, I mean it's a direct con, the name, the contact information and the project itself. Here because there is no confidential trade secret information that was taken away and then used against the former employer, it is not a breach of fiduciary duty because as courts have noted there must be an element of secrecy and otherwise if there is not that fiduciary duty ends on the date that the employment terminates and that's for some. Did Wilson tender to the amount of the job that he got right to do? Did he go ahead and pay? Hunter anyway, even though lack was no longer working for him? Yes, your honor. Wilson attempted to pay at first the portion that he had completed and then attempted to pay him the entire amount and unrejected that and as Judge Cummings noted, Hunter took a course of action to advance litigation and that is where then an equitable nature was found and unclean hands and it's for- Why is that unclean? If you believe the person's breached and you don't want to accept the settlement, I mean why isn't it actually indication that Wilson knew it was wrong because if he's just in a regular arms-length relationship with the new draft with the drafter, why would he offer to pay for the work the drafter did? He wouldn't owe the un anything because he says he doesn't know about the non-compete and the non-solicitation. Why isn't that actually evidence that he knows that he's done something wrong? Here it was not your honor, it was an attempt to avoid further litigation to essentially avoid today- But it doesn't, it doesn't, it plays out either way. I mean you can't say it's a good thing or a bad thing because it could be either. Well here Judge Cummings weighed the credibility of the witness and determined that there were unclean hands, there was a motivation there to punish essentially Wilson and Lat for their conduct. Why is that unclean hands under the law to say I'm going to stand on my contract and enforce it to the ends of the earth? How is that? And if you believe you have a contract, what case says it's unclean hands to say I'm not going to settle? Well looking at the reality, Your Honor, and I see that I'm out of time if I'm looking at the reality of what Hun wanted to have happened here. What homes had brought magazine cutouts, had even brought their own drawings at times, Hun wanted to hold those plans hostage. The face-fathers are not part of this contract. The contract is between Wilson and Hun. So why is it unclean hands for Hun to say I'm not going to take your settlement off, I'm not going to take your partial payment, I'm not going to take your full payment because you you're working with my former employee and you're violating my contract. How is that unclean under the law? Well, and to clarify Judge Elrod Wilson approached Hun first. Wilson approached Hun first and laid out several options. How is not taking an option of unclean hand and saying no, I'm going to enforce my contract is written? Your Honor, Judge Cummings here found that conduct unreasonable and with the case supports that. That say I'm going to stand on my contract to the ends of the earth is unclean hands. Your Honor, I don't have a case at this time if we could supplement for you and that. Your Honor, for this reason we would ask this Court to affirm the district court's judgment. Okay, thank you. Back to you, Mr. Baker. I want to make two major points in rebuttal. The first point has to do with the suggestion that there were no trade secrets and no confidential information in this case. There was a lot of testimony, but lack admitted to trial, these auto-cat files were kept under lock, key and password that lack only got them because he was an employee. But the most important part on the confidentiality issue is we go back to judicial admissions paragraph 17 of lack second amended answer in this case says those files were quote all for the benefit of Hun close quote. Well, they were, but they were misappropriated and taken inappropriately. The second point I want to make is just as suggested several times that if Hun were offered full payment, why didn't he settle? Let me answer that question. Does an employer have to settle the case and put a former employee in competition with him? Does an employer have to settle the case and let someone in Pringes Patents or copyrights? Does an employer have to settle the case for any purpose? This case was brought in this court and we're asking for justice

. Well here Judge Cummings weighed the credibility of the witness and determined that there were unclean hands, there was a motivation there to punish essentially Wilson and Lat for their conduct. Why is that unclean hands under the law to say I'm going to stand on my contract and enforce it to the ends of the earth? How is that? And if you believe you have a contract, what case says it's unclean hands to say I'm not going to settle? Well looking at the reality, Your Honor, and I see that I'm out of time if I'm looking at the reality of what Hun wanted to have happened here. What homes had brought magazine cutouts, had even brought their own drawings at times, Hun wanted to hold those plans hostage. The face-fathers are not part of this contract. The contract is between Wilson and Hun. So why is it unclean hands for Hun to say I'm not going to take your settlement off, I'm not going to take your partial payment, I'm not going to take your full payment because you you're working with my former employee and you're violating my contract. How is that unclean under the law? Well, and to clarify Judge Elrod Wilson approached Hun first. Wilson approached Hun first and laid out several options. How is not taking an option of unclean hand and saying no, I'm going to enforce my contract is written? Your Honor, Judge Cummings here found that conduct unreasonable and with the case supports that. That say I'm going to stand on my contract to the ends of the earth is unclean hands. Your Honor, I don't have a case at this time if we could supplement for you and that. Your Honor, for this reason we would ask this Court to affirm the district court's judgment. Okay, thank you. Back to you, Mr. Baker. I want to make two major points in rebuttal. The first point has to do with the suggestion that there were no trade secrets and no confidential information in this case. There was a lot of testimony, but lack admitted to trial, these auto-cat files were kept under lock, key and password that lack only got them because he was an employee. But the most important part on the confidentiality issue is we go back to judicial admissions paragraph 17 of lack second amended answer in this case says those files were quote all for the benefit of Hun close quote. Well, they were, but they were misappropriated and taken inappropriately. The second point I want to make is just as suggested several times that if Hun were offered full payment, why didn't he settle? Let me answer that question. Does an employer have to settle the case and put a former employee in competition with him? Does an employer have to settle the case and let someone in Pringes Patents or copyrights? Does an employer have to settle the case for any purpose? This case was brought in this court and we're asking for justice. We're not asking for settlement. And we want the full entitlement of damages under the copyright act and the breach of trust that Mr. Wilson participated. We'll try to give you justice back in the beginning. That's the business we're in. I kind of like Judge Demault. I don't feel very well. I'm sorry. The other thing I would like to go a little bit back to this covenant not to compute because that's important. The man Pringes for the case, the Supreme Court of Texas says hey, there can be an implied promise to provide confidential information. Here, particularly where the circumstances of the job required, here, Lack was hired to do drafting. He was hired to manage the CAD files and he admitted he did it. Do we have to find that the district court was clearly erroneous and find in determining that there was no confidential information shared? I believe the court found that. Even though it's clearly admitted in this case that they were all all of the AutoCAD files were continuously maintained on that computer. They could be only accessed by employers, by employees who used them only for the benefit of HUD. They were under lock, they were under key, they were under password. You can't get a greater degree of secrecy. To the extent the court found that they were no longer secret and that they had been released into the world. Is that a factual finding or is that some type of legal error that is a clear legal error? Now, I'd like to go to that because that question really goes to a very strange point in intellectual property law. Often someone comes into court and says, hey, I could have gotten the information, I could have read it out of this patent, I could have got it off this copyright. I could have got it any word and then they say and because I could have properly got it, that gives me a license to steal. It does not

. We're not asking for settlement. And we want the full entitlement of damages under the copyright act and the breach of trust that Mr. Wilson participated. We'll try to give you justice back in the beginning. That's the business we're in. I kind of like Judge Demault. I don't feel very well. I'm sorry. The other thing I would like to go a little bit back to this covenant not to compute because that's important. The man Pringes for the case, the Supreme Court of Texas says hey, there can be an implied promise to provide confidential information. Here, particularly where the circumstances of the job required, here, Lack was hired to do drafting. He was hired to manage the CAD files and he admitted he did it. Do we have to find that the district court was clearly erroneous and find in determining that there was no confidential information shared? I believe the court found that. Even though it's clearly admitted in this case that they were all all of the AutoCAD files were continuously maintained on that computer. They could be only accessed by employers, by employees who used them only for the benefit of HUD. They were under lock, they were under key, they were under password. You can't get a greater degree of secrecy. To the extent the court found that they were no longer secret and that they had been released into the world. Is that a factual finding or is that some type of legal error that is a clear legal error? Now, I'd like to go to that because that question really goes to a very strange point in intellectual property law. Often someone comes into court and says, hey, I could have gotten the information, I could have read it out of this patent, I could have got it off this copyright. I could have got it any word and then they say and because I could have properly got it, that gives me a license to steal. It does not. You cannot reach a an access to somebody's computer to commit a fraud. To the extent the district court found that what was on the computer was no different than what was handed out at the meeting, is that a factual error or a legal error? That is a factual error, Your Honor. The word didn't work these drawings already released to Wilson. The paper drawings were. But the AutoCAD files, the files that you use that really facilitate AutoCAD design of a resident, they were never released. They were held under locking key. And that's what they took and used. The judge found those were substantially similar to the paper file. Well, he never saw those. Those were introduced into evidence. I don't believe he did. Why didn't you introduce those into evidence? I'm sorry. Why didn't you introduce the AutoCAD files into evidence and argue they were different? You know, we had admissions and if we had admissions that they were all for the benefit of the public. Once you have these admissions, and that's another point about this case, we had discovery for over a year. We have all these requests for admissions. We have judicial admissions, and we get to trial and it's a completely different story. And the, our point is that it just seems to me that the first thing a district court should do is to start off the findings of the fact with what's conclusively established. But here we didn't have a single conclusively established fact. We had indicated. Thank you very much. Thank you.

From the land we're also home at all. Okay Mr. Baker, will you read? Good morning Your Honor my name is Dorsey Baker. With me at the council table just an end of this dose. Would the lover represent the Apollo? Council my years are bad today and you're going to have to talk up higher and louder if you want me to hear. I certainly do want you to hear your Honor and I will try to do that. May I please the court? I'm sorry, is that your room? I like that room. That's not the room. I'm a rear. The other one. This one. Now in the past this court has repeatedly determined and stated that judicial admissions and responses to requests or admissions under rule 36 are can be severely established for the entire purposes of the lawsuit. In this case there were over 20 responses to request for admissions that were admitted. There were numerous judicial admissions in the pleadings of the defendant's Wilson and lab. Not one of those 20 admissions and judicial admissions found its way into the findings of fact of the trial court below. Now those request for admissions and the conclusions of the admissions that were judicial admissions are scattered throughout the record in the sketch. But in order to facilitate this court's determination I've gone through the record I have compiled the 20 judicial admissions that were referred to in our briefs. I have copied them. I would like to hand them up to the court. Now counsel tell me right off the bat were these incorporated by the trial judge and his funding is a fact and conclusions of law. There is not a single one of these judicial admissions to be found in the 62 findings of fact of the court below. Now I'd like to draw the court's attention particularly to one particular judicial admission. It occurred in the pleading of the defendant Wilson. It's on the second page and it's paragraph number 62 of the second amended answer of the defendant Wilson. It's a long one but I'd like to read the entirety of it into this record because it contains several inclusive admissions that are determinative of this lawsuit. The other notice of hunts impending for each of the agreement to draft the drawings in a timely manner and that no one at hunn design had any knowledge relating to the drawings and proxies. Dan Wilson homes in determined that the best course of action was to pay like to complete the two drawings that were nearing completion while being undesigned the right previously agreed upon as you have honned remained employed at hunn and to fairly compensate on design for any work performed on the drawings that were not near completion. This course of action was necessary to protect the interest of Dan Wilson homes and would leave undisigns in a better position than if hey like remained employed at undesigned B if another hunn design employee completed the drawings. See if Dan Wilson homes retained another drafting company to complete the drawing. Now going through that rather slowly that is a clear admission that my client breach no agreement. It was only a quote impending breach. It had not occurred and did not occur. What did occur though was a complete repudiation of the agreement but Dan Wilson. It was Dan Wilson who determined that the best course of action was to pay like the former employee to complete the two drawings in question. And that was his course of action that he determined I submit it was a clear repudiation that Dan Wilson of the contracts and issued. That you did this admission and never made it to the findings of the district court. Did Dan did Dan Wilson homes pay hunn design the rate previously agreed upon as it black remained employed? I'm sorry you are not. Did Dan Wilson pay for the entire job to hunt? I think the answers no. That is a point of contention. They clearly offered a check of $10,000 to pay for partial work. But not for the completion of the entire project. That is our position. I believe there was oral testimony to that effect. But then the district court found that Wilson made this offer to hunt and hunn said I can't do work or can't do it time. So that the work can be done. That is what the court found. Not quite your honor. Let me explain. The statement in the pleading of Wilson was that he asked my client when he was going to get them finished. My client responded saying, I believe this is the correct quote, I don't know when I can get them done. Close quote. That was all that was said by my client. Now bearing in mind, the employee had just left. He had 16 residential design contracts that he was supposed to be working on. He left all 16 for my client to go to each homeowner figure out, well what's critical, what do I do next? How do I accommodate all of my clients? The evidence is that my client accommodated every one of us, except for Dan Wilson who repudiated that contract. Well, but didn't Wilson provide testimony that Hunn said he couldn't finish him timely so that it pretty much forced Wilson to go do something else. First of all, again, I'm telling you that is contrary to their pleading. But was there evidence of that? Yes, there was oral testimony. And my point in this whole matter is, your honor, that this court has repeatedly said that district court cannot ignore conclusively established findings of admissions or judicial admissions in favor of oral testimony. So what do you, I didn't understand what you find here that's inconsistent with that version that Wilson came up with a trial. Well, the first thing is, if you look at the district court's decision at paragraph 13, he says, Wilson did not breach the contract. That's a finding of the district court. If you go to this conclusion, this judicial admission of paragraph 51 is to the contrary. Wilson repudiated the contract. He engaged what? To go into competition with my client. It's what we might call a law school an efficient breach where he decided that he would go and get it done. And I'm not saying that that makes it okay. That's just a concept. He decided that he would go ahead and do something different before waiting for a hunt to breach. According to this pleading, he decided he would take his own course of action for two reasons. One is, the people remaining at my client were not familiar with the homeowners are the designs and progress. So he wanted to take the contract and give it to home. That's one reason. The second reason was that he was concerned with a quote, impending breach. I understand that. That was not necessarily an unfriendly question. It's undisputed that Mr. the day in Wilson homes, but people knew that there was a non-compete, correct? It's undisputed that they knew there was a non-compete between lack and hunt, correct? I don't know that. I believe the testimony that trial was. Mr. Wilson did not know about the non-compete. He did not know about it. That was the thing. He was completely in the dark. If so, if Mr. Lac was violating his non-compete, he was not aiding and abetting in that in some way. Because he didn't know about it. Is that the position of Mr. Wilson's company? You're under the completely injured question. I think there's two aspects of it. When you say he did not participate, the participation that is wrong here is the engagement of WAC, whose stolen lock clients are drawing. I'm not in disagreement with you on that council for the purpose of the question. I'm just wondering if it shows undisputed evidence and tests a trial, and I'll ask the other side that question. Where can we go in the record to find out, to look at the plans that were delivered to the to Dan Wilson homes, to compare them to determine if they were substantially similar to the as-built plans? Where do we go in the record for that? Because we have to do this substantially similar analysis ourselves. We are. To determine if it was clearly erroneous or not. And I want to know where do I go in the record to get the plan so I can compare them. I'd like to really direct your attention to that, to answer that. First, our position is there was a judicial admission. They were substantially similar. Okay, but that's... No, I'm the next one. First of all, if you go back to this paragraph, 62, Dan Wilson says there were two drawings, and that was the Brown residents and the McKee residents that were near completion. That's what they finished. I submit to this court that that judicial admission of near completion is totally equivalent to substantial similarity. Okay, that I'll take that as your first answer to that. That's my first answer to that. My second answer is that we have included in your excerpts, comparison, side by side, which is courtesan store. What this court has said to be determined is the issue of substantial similarity. Okay, and those are the definitive documents we're supposed to use. I thought there was some dispute about that. Those are the documents that we're supposed to use. Yes, sir. That gives you the side by side, and you will see there that if you look at the overall form, which is a part of the definition of an architectural design, it says you look at the overall form, the composition of the spaces, and the overall arrangement. Our position is that no rational person could conceivably come to conclusion that there was not deliberate plagiarization. They copied. Did your client give the AutoCAD software to lack? I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. I'm sorry. OK. OK. OK. I'm a pretty good guy. OK. I'm a pretty good guy. We are looking at the models of Korea. expression dichotomy. It's been in every copyright act since then. In section 102 B says that ideas and concepts are specifically excluded from a copyright or for the registration. The district court never got that fundamental idea and as a result this judgment cannot stand. We're asking this court. I'm sorry. We're asking this court to reverse and to render. Everything is stated in the breeze. There's clear infringement. We're entitled to what's called the Builders' Feed and we asked the court to reverse and run. Thank you. Please the court. My name is Marion Sanford. I've counseled for the Wilson of Kelly, Stan Wilson and Dan Wilson Holmes and Corporate. There's also counsel for Ben Lack here, who's going to take the last ten minutes of this 20-minute section. I've had a plan to talk about what I really like to address some of the things that we're just spoken about first. First, there was this con that the district court that Judge Cummings has taken senior status within of the year doesn't understand copyright law at all. He has a fundamental misunderstanding of the entire realm of copyright law. That's not true. Judge Cummings went through and the reason he was interested in who brought the design elements, who brought the creative elements out there is because Judge Cummings was trying to get a handle on the license issue, trying to get an understanding of is this a non-exclusive situation where the builder comes in and says, I have a client, I have a project, I already have the design going. Everything is in the works. I now need to start getting my concrete guy and my frame-reguide, my draftsman guy in on this project. I already have the design, I already know what I'm going to do. In that respect, who brings in the creative elements out there are very important. If you look at cases that came out like I, a E-Version shabber, if you look at cases like the Born Vs Disney case, all of that was relevant to the license issue. He wasn't trying to say that ideas are protected under copyright. Well, the esteemed district court is not in trial here. So can you give to your I said responding to a comment made by posing counsel. Can we hear about why your client is not responsible for any of these deeds? Sure, you're on a, there's two types of copyright cases involving builders and architects generally. The first type is a case where the builder comes out and steals a plan or takes a plan and uses it multiple times and paying once. Those kinds of cases and poorly for builders. That's the Kip Flores case, that's the pin hollow case. There's another type of case where the builder is the genesis of the project. The builder is hired to develop a particular piece of property. And the builder, it brings in the design elements, the builder brings in everything to do with it. At some point, he hires a draftsman as a subcontractor and brings that draftsman to contribute to that project. Right, but the problem is here, the hard, he hard hun is the draftsman not black. Right, bin like was Mr. Hun's employee. Right, so he might have been able to go on and finish his project as taking ever the facts in your favor, not in the favor. He might have been able to finish his project with another draftsman using plans that were furnished to him. But could he use Mr. Lack, who has proprietary relationship with Mr. Hun? Yes, Your Honor, and it's because... Yes, Your Honor, and the reason why is that as the court found, Mr. Wilson had a, Daniel Wilson at home had a license to use those plans and finish them, those are... To use the plans, the paper plans they got, not to have Mr. Lack take AutoCAD software from his office or the files and manipulate on his home computer with stuff he had taken from his office. That's, that if you explain that. Those plans are the exact same plans that had been delivered to Daniels and Holmes. But once they're put on AutoCAD, it's a manipulable form. They're in a different form that is proprietary to Hun. Your Honor, AutoCAD is just a program that takes data and presents some of that. Okay, it's no different than if he had a manuscript on paper that was printed out from Word. Well, it's Word versus PDF. You can take the PDF version and do what you want from the last version you got, assuming that you do have some license to use it. But you can't take the Word embedded version that has all kinds of metadata and things and do what you want. And the AutoCAD does have the metadata. Your Honor, none of that was put into evidence on trial as to what was proprietary at all to Hun. Matter of fact, there's some specific finding from the court that all of that, how to use that, how to use that metadata, how to do all of that, that lack brought that from his prior employment, that lack had that before he showed what was hired by Hun designs. There's specific findings that there was zero training for Viratomister Lack. There was specific findings that none of this software was for Viratomister Lack. It was all his own. Mr., this was all what you're describing or all things that Mr. Lack brought before he was hired by Hun designs. He used to have his own business to do these things. Okay, but can you get me to the part where it's okay for Mr. Lack to go work with Wilson perhaps you want to save it for your other people? No, no, no, you're right. What happened with that is Mr. Wilson came in and offered four resolutions. What was talked about as this admission is a description of four resolutions described in paragraph 22 of the findings of fact, four resolutions that were rejected by Mr. Hun. Mr. Wilson said, please finish them, Mr. Hun, he wouldn't do it. He said, retain Lack a few more weeks and finish, and Mr. Hun wouldn't do it. He said, retain Lack as an independent contractor and finish him. He wouldn't do it. He said, okay, I'll pay you for what you've done and have somebody else finish it and have Lack finish it and he, Marshall Hun wouldn't do it. And he finally said, and this is something that was real important of Mr. Characterization earlier, Mr. Wilson said, look, I'm going to get Mr. Lack to finish these because he's off on his own where he can do this. And I'm going to pay you the entire purchase price. The tire price is if you done 100% of the work yourself and you're going to put your stamp on it, it's going to be your copy right on it. And after I get done building these, their year designs and Mr. Hun replied and said he would not accept that. And that was specifically Mr. Representative a few minutes ago, but that was referred to, it's in the brief, and on the record of a record of Piel 4701 through 04. Well, but to the extent that Mr. Lack can't work for Mr. Wilson because he has a non-compete and Mr. Wilson was originally Mr. Huns, a Miss Huns client. How is Wilson exonerated? Mr. Wilson had, first of all, he had no idea whatsoever about the non-solicitation agreement until after, after the fact. That's been established that was recognized by all parties. Okay. So first of all that happened. Second is there was, there's a finding from the court, and the court examined this issue at length, that there wasn't a breach of fiduciary duty after employment because Mr. Lack had nothing that was confidential. He returned to paper files, and all he had at home. The client name and the client project, he also had the AutoCAD version, which is manipulable, but he had the client name and the client project. Those are proprietary to the company. We do a lot of non-compete work in Texas courts, and non-compete work has gone way, it's changed the pendulum since light V, light in Centel and Shestionhof, and at the pendulum is very different now, and that was proprietary information. I don't understand how it's not. So maybe I'll let the other council tell me what's not. I think she's more prepared. But your position is he didn't know about it. It's not much of my position. It's something that was found about it. Okay. Can you help me with substantial similarity and or copyright? They don't have to be identical, and so can you help me why they're not substantially similar? Absolutely, Your Honor. What you had, you had four plans that are issued, and these are briefed heavily in the briefing where it goes through and takes an actual record, and the side by side comparison, we're done by both parties, and looks at whether these items are similar or not. Now first of all, there was never any testimony about what were the creative elements that were copied. That's first. But second, there was a long period of testimony, and it's in some pages of the brief. I don't know which page it is. There it is. It's in there. It's on response pages 39 through 43, and it goes to that. I think you also have some boards that were marked up. They're going to be a hard because they're not live. But you agree that those things in the record excerpts are what I'm supposed to be comparing. Absolutely, Your Honor. And a quick and a quick comparison. The brown plan was identical, but that plan was drawn by Mr. Green Street, who isn't here today, and that plan is owned by Dan Wilson Holmes. That plan, a builder in Lubbock, brought the plan, the finished plans to Dan and said, build his house. And then Marshall Hunt was allowed to make a copy, and then he registered Mr. Green Street to work. That was our counter-clang. So that one's not, that one was, that does have substantial similar votes, our plan. The second one that was nearing completion was the McGee House. Mrs. McGee became Mrs. Winder. What happened is the same time that all this was going on, and that, her house was almost finished. She got married. She'd been, before she had her husband died, I mean, she'd been married, husband died, remarried, and she reworked her house to include her husband. And so that plan, even though it was near completion, was reworked and no longer substantially similar, that was explained in there, and Mr. Lack testified that, yeah, sometimes you have plans that are almost finished, something happens, and you go back to the drawing board. And the other two plans weren't even close. The Jeffers' house was just an outline sketch, and that, and all we had was a hand sketch for some ideas on the showcase home. And so there was a substantial similarity. Well, there's no substantial similarity if you start off with just an outline, which I assume you ordinarily got from the draftsman, and then you finish the house. So, but aren't we concerned about whether what Wilson started with and used initially to begin the completion of the house was similar to what had been provided to it? That is, well, first of all, if there's not a license, I mean, those license issue first. But even on that, the derivative work issue depends upon, I might have time, but I'll finish the question. Depends upon substantial similarity, and this substantially, there has to be the creative elements that are copied into the new design. And there's a lot of cases out there that talk about, when you're talking about a house, there's millions and millions of houses out there, and there's only so many places you put the garage in the master suite and whatever. So you can't look at the general arrangement of the rooms. You have to look at the creative elements within the design. There was no showing of those elements at trial, and we've shown a lot of changes to have been made. Okay. All right. The deal. May it please the court. My name is Elizabeth Hill, and I represent Ben Lack. I'd like to start off by diving into Judge L. Rodd's questions regarding non-compete law in Texas at this time. Here we have a non-solicitation agreement that was entered at the time of an at will employment agreement, and looking at the face of the documents themselves, they're completely void of any consideration. Now, Hun asked this court to imply consideration as the Texas Supreme Court did in fielding and look to the job duties that are identified for Lack, and Judge Cummings did just that in the summary judgment order, looking to those specific job duties. We have design. We also have a reference to the CAD computer system, and that seems to be the the element of contention that Hun relies on as a confidential element that allegedly Lack took away, but even in the language of the non-solicitation agreement, Hun identified that as standard. In fact, Judge Cummings referenced that that Hun could have drafted this at will employment agreement in any manner, yet used standard CAD installation, and that while Lack may have some management of spec clients, just having mere contact with clients, mere contact with customers rather than an entire customer list, that that by itself does not rise to the level of a trade secret. In fact, this court evaluated when you can imply consideration in a non-competed agreement in Ray Mart, and versus stock building supply company, back in 2008, just a year before fielding, in fact. But the law has changed substantially since then, hasn't did in Texas. It is true that the Texas Supreme Court has expanded the Covenant's not to compete at. That is absolutely true. However, this particular non-solicitation agreement is an example of a naked restraint on trade, and there are competing policy considerations and enforcing non-competes, and this is an example of when a non-solicitation is attempting to be enforced with no consideration. Okay. This is a rather bald, non-competed violation, if it were, in effect though, isn't it? It's the very client. It's not some list you take, and then you start cold, cold-colling people later. This is the very client and an ongoing project on that particular project. So there's none of the defenses like, oh, we knew each other otherwise, and this is a different project. If it's valid, it's a bald violation, isn't it? Your Honor, we disagree. We believe that HUNN did not protect any of the confidential information, and that that is a customer list that HUNN expressly referenced in his deposition was not taken away by LAC, and the AutoCAD program, which is a program used and was already owned on LAC's own computer. He took the files from his work and didn't give them back when he left. He brought the hard copy back, but didn't give the computer files then enabled, and that's undisputed. This is not a clearly erroneous situation. He took the files from his work, knew that he needed to give hard copies back, but serotoniously kept the files on his computer so he could continue to work on the project, the very project that his employer had been hired to do. Your Honor, that is correct. However, HUNN testified at trial on page of the 29 that he was well aware that LAC had files at home that he definitely expected LAC to have those electronic files at home that he knew that LAC had an older version of AutoCAD and that he had to convert those. In fact, in HUNN's deposition on page 37 of HUNN's deposition, he acknowledged that he had also emailed AutoCAD files to clients. I don't understand at all why that's relevant to him using the information to benefit his subsequent business in direct competition with his employer. You may have allowed the employee to take home all sorts of information, but if the employee, when he sees it's being employed, uses it to directly compete with you. It doesn't mean that you authorize that or that that was a proper use of that information. Yes, Judge L. Rad, but courts draw the line on finding a breach of fiduciary duty after post termination of employment with confidential information and trade secrets. I'm still hung up on your non-compete, certainly. And we can certainly, the two are very intertwined and it really turns on the district court's factual determination that LAC never received any confidential information. So even if on the face, on the face, hypothetically, if this court were to find that the non-compete could be enforced, it never became enforceable because HUNN never transferred confidential information to LAC. The Texas Supreme Court has noted that a non-compete agreement, even if it's a luxury at the time that it's entered, then it can become enforceable later. This never became enforceable because there was never that confidential information that was transferred to LAC. HUNN never for about any conditions to those files when they were delivered to Wilson and other home builders and home buyers on a weekly basis. He never asked any of those customers to sign a non-disclosure. They were not treated as confidential information or trade secrets. And that really is the line that courts should draw whenever finding a breach of fiduciary duty after employment. Now certainly had there been something before employment, that would be different, but the allegation is that this was used after employment. Well, the allegation is, they would have to find clearly Rony is here. The allegation is that he or perhaps one of the admissions and we have to find that apply. The allegation is that he intended this while he was still working and that this was a scheme. So it is not true that this was just the allegation that it's after. The allegation is that it's before, but the judge, the court, found that it was after. That's absolutely correct, Judge Elrod. In fact, Judge Cummings noted in footnote seven on page nine of his opinion that he weighed the credibility of LAC's testimony concerning why he had these files transferred two days prior or a day prior to his termination and that he found his testimony credible. That LAC expected that he would continue on to be employed for two weeks and that during that time he would be able to finish the plans for Wilson. If we find that there is a judicial admission that is contrary to a factual finding of the trial court, which controls? Well, Your Honor, here the court found consistent with the judicial admission. That's not my question. Well, if they are inconsistent, which controls as a matter of law or as a matter of evidentiary review by this court? Well, we would agree that if there is a finding of fact that is entirely inconsistent with the judicial admission and that it's not explained by some other reason that might be clear error. However, here the findings of fact that Judge Cummings made were clearly consistent with the judicial admission because LAC admitted that the file was transferred, but the admission did not ask why. The admission did not ask for the purpose. And is this court noted in navigate consulting just a few years ago that in evaluating and scrutinizing and employee's actions shortly prior to their departure that those actions certainly can be shaded by that departure and that you have to look to the intent and hear the district court did just that and found LAC's testimony credible. Now, in looking at the breach of fiduciary duty, this unrelives on this court's decision in NCH Corporation versus Royals dating back to 1985 and there to compare the level of customer information that was taken by the employee in that case, there was a customer route list that included the customer's contact information, the orders that they had made, the frequency, the price list and that customer and that, excuse me, that employee took it away and then used it in competition and here this court did find that that was a breach of fiduciary. Why isn't this even more of a gregious breach in that it's not just a list of the customer, I mean it's a direct con, the name, the contact information and the project itself. Here because there is no confidential trade secret information that was taken away and then used against the former employer, it is not a breach of fiduciary duty because as courts have noted there must be an element of secrecy and otherwise if there is not that fiduciary duty ends on the date that the employment terminates and that's for some. Did Wilson tender to the amount of the job that he got right to do? Did he go ahead and pay? Hunter anyway, even though lack was no longer working for him? Yes, your honor. Wilson attempted to pay at first the portion that he had completed and then attempted to pay him the entire amount and unrejected that and as Judge Cummings noted, Hunter took a course of action to advance litigation and that is where then an equitable nature was found and unclean hands and it's for- Why is that unclean? If you believe the person's breached and you don't want to accept the settlement, I mean why isn't it actually indication that Wilson knew it was wrong because if he's just in a regular arms-length relationship with the new draft with the drafter, why would he offer to pay for the work the drafter did? He wouldn't owe the un anything because he says he doesn't know about the non-compete and the non-solicitation. Why isn't that actually evidence that he knows that he's done something wrong? Here it was not your honor, it was an attempt to avoid further litigation to essentially avoid today- But it doesn't, it doesn't, it plays out either way. I mean you can't say it's a good thing or a bad thing because it could be either. Well here Judge Cummings weighed the credibility of the witness and determined that there were unclean hands, there was a motivation there to punish essentially Wilson and Lat for their conduct. Why is that unclean hands under the law to say I'm going to stand on my contract and enforce it to the ends of the earth? How is that? And if you believe you have a contract, what case says it's unclean hands to say I'm not going to settle? Well looking at the reality, Your Honor, and I see that I'm out of time if I'm looking at the reality of what Hun wanted to have happened here. What homes had brought magazine cutouts, had even brought their own drawings at times, Hun wanted to hold those plans hostage. The face-fathers are not part of this contract. The contract is between Wilson and Hun. So why is it unclean hands for Hun to say I'm not going to take your settlement off, I'm not going to take your partial payment, I'm not going to take your full payment because you you're working with my former employee and you're violating my contract. How is that unclean under the law? Well, and to clarify Judge Elrod Wilson approached Hun first. Wilson approached Hun first and laid out several options. How is not taking an option of unclean hand and saying no, I'm going to enforce my contract is written? Your Honor, Judge Cummings here found that conduct unreasonable and with the case supports that. That say I'm going to stand on my contract to the ends of the earth is unclean hands. Your Honor, I don't have a case at this time if we could supplement for you and that. Your Honor, for this reason we would ask this Court to affirm the district court's judgment. Okay, thank you. Back to you, Mr. Baker. I want to make two major points in rebuttal. The first point has to do with the suggestion that there were no trade secrets and no confidential information in this case. There was a lot of testimony, but lack admitted to trial, these auto-cat files were kept under lock, key and password that lack only got them because he was an employee. But the most important part on the confidentiality issue is we go back to judicial admissions paragraph 17 of lack second amended answer in this case says those files were quote all for the benefit of Hun close quote. Well, they were, but they were misappropriated and taken inappropriately. The second point I want to make is just as suggested several times that if Hun were offered full payment, why didn't he settle? Let me answer that question. Does an employer have to settle the case and put a former employee in competition with him? Does an employer have to settle the case and let someone in Pringes Patents or copyrights? Does an employer have to settle the case for any purpose? This case was brought in this court and we're asking for justice. We're not asking for settlement. And we want the full entitlement of damages under the copyright act and the breach of trust that Mr. Wilson participated. We'll try to give you justice back in the beginning. That's the business we're in. I kind of like Judge Demault. I don't feel very well. I'm sorry. The other thing I would like to go a little bit back to this covenant not to compute because that's important. The man Pringes for the case, the Supreme Court of Texas says hey, there can be an implied promise to provide confidential information. Here, particularly where the circumstances of the job required, here, Lack was hired to do drafting. He was hired to manage the CAD files and he admitted he did it. Do we have to find that the district court was clearly erroneous and find in determining that there was no confidential information shared? I believe the court found that. Even though it's clearly admitted in this case that they were all all of the AutoCAD files were continuously maintained on that computer. They could be only accessed by employers, by employees who used them only for the benefit of HUD. They were under lock, they were under key, they were under password. You can't get a greater degree of secrecy. To the extent the court found that they were no longer secret and that they had been released into the world. Is that a factual finding or is that some type of legal error that is a clear legal error? Now, I'd like to go to that because that question really goes to a very strange point in intellectual property law. Often someone comes into court and says, hey, I could have gotten the information, I could have read it out of this patent, I could have got it off this copyright. I could have got it any word and then they say and because I could have properly got it, that gives me a license to steal. It does not. You cannot reach a an access to somebody's computer to commit a fraud. To the extent the district court found that what was on the computer was no different than what was handed out at the meeting, is that a factual error or a legal error? That is a factual error, Your Honor. The word didn't work these drawings already released to Wilson. The paper drawings were. But the AutoCAD files, the files that you use that really facilitate AutoCAD design of a resident, they were never released. They were held under locking key. And that's what they took and used. The judge found those were substantially similar to the paper file. Well, he never saw those. Those were introduced into evidence. I don't believe he did. Why didn't you introduce those into evidence? I'm sorry. Why didn't you introduce the AutoCAD files into evidence and argue they were different? You know, we had admissions and if we had admissions that they were all for the benefit of the public. Once you have these admissions, and that's another point about this case, we had discovery for over a year. We have all these requests for admissions. We have judicial admissions, and we get to trial and it's a completely different story. And the, our point is that it just seems to me that the first thing a district court should do is to start off the findings of the fact with what's conclusively established. But here we didn't have a single conclusively established fact. We had indicated. Thank you very much. Thank you