matex wire rope kilgore texas quotation

We understand that there are many factors that go into choosing the correct sling, wire rope, rigging hardware or lifting device for a lift! Let our sales team help!

We understand that there are many factors that go into choosing the correct sling, wire rope, rigging hardware or lifting device for a lift! Let our sales team help!

Galvanized wire rope is a general purpose cable used in many types of applications.  The galvanized finish on this type of wire rope makes it a great choice for hand rails, barrier cable, horizontal and vertical safety lines, light duty winches, and lashing because it holds up well in outdoor static applications.

Along with Delta Rigging & Tools and Morgan City Rentals, Matex is a quality addition to the BLP group. For over 50 years, they have been a premier supplier of lifting solutions. This includes sling fabrication, wire rope & rigging hardware, fall protection, cable service, recertification, and custom lifting solutions. For one thing, their reputation for outstanding service is built upon their “Customer First” philosophy. With this in mind, all services and products are accessible through their customer service phone lines that are answered 24/7.

“The acquisition of Matex complements our overall wire rope and rigging offering. Now, additional services can be provided to the oil and gas industry. This investment represents an important strategic opportunity. This opportunity is to offer high-quality products/service operations in and around Texas and Louisiana,” said Harold King, President of BLP. “The acquisition adds to our capacity and geographic presence to key market customers.”

Matex was acquired by Bishop Lifting in August of 2017. For over 50 years, Matex has been a premier supplier of lifting solutions including: sling fabrication, wire rope & rigging hardware, fall protection, cable service, recertification, and custom lifting solutions. With branches in Shreveport, LA, Pleasanton, TX, Alice, TX, and Midland, TX, the combined companies will now operate over 30 branches across the country.

As a group, Matex and Bishop Lifting are growing rapidly, so in order to be a unified team, we are now all under one banner, Bishop Lifting, to create value, company unity, and combine our strengths and capabilities across the country to better serve you, our customer.

Distributor of wire rope, chain & web slings, industrial hardware & wire rope, sandlines, fall protection products, sheaves, blocks, electric wireline & recertification services

Provider of safety cables and wiring products and services. The company offers products including lifting slings, rigging hardware, lever hoists, wire ropes, steel cables, tow straps, round slings, and other related products as well as fall protection, recertification, drum inspection and repair services.

Pearland, TX (August 12, 2013) — Delta Rigging & Tools, Inc., one of the largest providers of lifting and rigging products and related services in the United States, today announced it has completed the acquisition of Holloway Wire Rope, supplier of wire rope, below-the-hook lifting devices and rigging supplies headquartered in Tulsa, OK, with a second location in Wichita, KS. The acquisition of Holloway Wire Rope expands Delta Rigging & Tools footprint into the Oklahoma oil & gas fields, along with broadening its reach into the Midwest markets.

Holloway Wire Rope, celebrating its 72nd year in the industry, is proud to be one of the earliest established wire rope and rigging companies in the United States. Through the efforts of its experienced and long-term management team, they have become an internationally recognized supplier specializing in Wire Rope Slings, Rigging, Fall Protection, Nylon Slings, Wire Rope, Chain, Chain Slings, Rope, Hoists, Shackles, Turnbuckles, Eye Bolts, Sheaves, Snatch Blocks, Tie Downs and Cargo Control, Load Binders, Crane Blocks, Winches, Swivels, Pull Testing Safety Belts, Chokers, Round Slings, Rigging Hardware, and Suspended Personnel Platforms.

“We had been looking for a way to expand our footprint deeper into the Oklahoma oil fields and Midwest markets for some time,” said Mitch Hausman, President & CEO of Delta Rigging & Tools. “After a careful review of the Holloway Wire Rope operations, it became clear that taking a well- established business with great customer and vendor relationships was a strong strategic move for us, and the best way to serve our existing and new customers working in the Midwest.”

Curt Tuggle Owner of Holloway Wire Rope will be joining the Delta Rigging & Tools management team and continue as General Manager of the Tulsa and Wichita operations. “We are very pleased that a company with Delta Rigging & Tools national stature and reputation for quality and value is acquiring Holloway Wire Rope” said Curt. “Holloway Wire Rope is recognized for the high quality products we offer, customer satisfaction and safety. We believe that joining Delta Rigging & Tools will help us continue to grow by bringing us access to tremendous purchasing power and distribution of some of the

Delta Rigging & Tools is one of the largest US providers for both sales and rental of rigging and lifting products, tools, and services. Delta Rigging & Tools offers a complete portfolio of lifting solutions, including hoists, winches, wire rope, wire and synthetic slings, accessory parts, and hardware as well as testing, inspection, and field service, and rental of lifting equipment and tools. Delta Rigging & Tools serves both domestic and international customers through 15 sales and service facilities and distribution centers located around the country. The company provides complete lifting and rigging solutions and support for a diverse range of markets, including Oil & Gas production and distribution, Energy and Power-Generation, Mining, Transportation, Heavy Manufacturing and Construction. Founded in December, 2004, Delta Rigging & Tools continues to grow rapidly through a combination of acquisitions and Greenfield start-ups. Delta Rigging & Tools focuses on providing its customers with the highest possible levels of Safety, Service, Quality and Value. Additional information on Delta Rigging & Tools can be found at www.deltarigging.com.

Austin Ventures (“AV”) has worked with talented entrepreneurs to build valuable companies for over 30 years. With $3.9 billion of capital raised, AV is the most active venture capital firm in Texas and one of the most established in the nation. AV invests in early stage and middle market companies, and its strategy is to partner with talented executives and entrepreneurs to build industry-leading companies predominantly in Texas. Additional information on AV can be found at www.austinventures.com.

Holloway Wire Rope is a privately held corporation that has been in business since 1941. The company is owned by Curt Tuggle who has been active in the day-to-day operations of the company since he purchased it in 1982. He began his career in the wire rope business in 1965 working for Bethlehem Steel. Mr. Tuggle’s philosophy of growing Holloway has been to create and foster lasting relationships with the customers Holloway Wire Rope serves. Holloway Wire Rope is known for providing the very best in customer service, coupled with the highest quality products at competitive prices.

In The Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-17-00112-CV SAMUEL D. ORBISON AND AMERICAN PIPING INSPECTION, INC., Appellants V. MA-TEX ROPE COMPANY, INC., Appellee On Appeal from the County Court at Law No. 2 Gregg County, Texas Trial Court No. 2016-1631-CCL2 Before Morriss, C.J., Moseley and Burgess, JJ. Opinion by Chief Justice Morriss OPINION At the start of the almost five years that Samuel D. Orbison worked for Ma-Tex Rope Company, Inc. (Ma-Tex), he signed an employment agreement containing a non-competition agreement, a non-disclosure agreement, and a non-solicitation agreement. During his tenure, he learned various things about Ma-Tex’s business and customers and became the coordinator of MaTex’s recertification department. Orbison continued in that position until he resigned from MaTex, went to work for Ma-Tex’s competitor, American Pipe Inspections, Inc. (API), as the coordinator of its recertification department, and began soliciting work for API from Ma-Tex’s customers. This lawsuit arose from that series of events and centers on Orbison’s non-competition, non-disclosure, and non-solicitation agreements. Ma-Tex fabricates and services equipment used in the oil and gas industry. As part of its services, Ma-Tex recertifies wireline1 equipment for companies throughout the continental United States. Orbison began working for Ma-Tex in September 2011, at which time he executed the employment agreement that is at the center of this action. In July 2013, Orbison became the coordinator of Ma-Tex’s recertification department. He resigned from Ma-Tex August 12, 2016. Shortly after Orbison left its employ, Ma-Tex discovered that Orbison was working for API in the same position he had filled with Ma-Tex and that he was soliciting recertification work from Ma-Tex’s customers. When Ma-Tex failed to receive a satisfactory response to its ceaseand-desist letter sent to Orbison and API, Ma-Tex sued them and obtained a temporary restraining “Wireline” is a cabling technology used in the oil and gas industry for moving tools and equipment up and down a well shaft. Steve Drew, vice president for Ma-Tex, testified that wireline trucks provide a number of different services at a well location “including logging, perforation, [and] testing of the well.” 1 2 order barring Orbison and API from disclosing or using Ma-Tex’s trade secrets and confidential information, from soliciting or serving Ma-Tex’s customers, and from competing with Ma-Tex in the servicing and recertification of wireline equipment in nineteen states. After a bench trial on the merits, the trial court granted Ma-Tex a permanent injunction against Orbison and API and awarded Ma-Tex actual damages and attorney fees against Orbison and API. In this appeal, Orbison and API (Appellants) assert that the trial court erred in admitting evidence of damages, in awarding damages, in enforcing the post-employment restrictions contained in the employment agreement, in issuing the permanent injunction, in denying Appellants’ motion for sanctions, and in awarding attorney fees against them. While we find that (1) there is insufficient evidence in this record to support the award of damages for lost profits and lost good will, we also conclude that (2) there was no abuse of discretion in issuing the permanent injunction, (3) there was no abuse of discretion in denying API’s motion for sanctions, (4) there was no abuse of discretion in awarding attorney fees, (5) Appellants waived any objection to late-disclosed evidence by refusing the offered continuance, and (6) Appellants failed to preserve their complaint regarding termination of the employment contract. Therefore, we reverse the award of damages for lost profits and good will, delete the award of just those two elements of damages, and affirm the trial court’s judgment in all other respects. 3 (1) There Is Insufficient Evidence in this Record to Support the Award of Damages for Lost Profits and Lost Good Will Appellants challenge the legal sufficiency of the evidence to support the award of damages for lost profits, lost good will, fee forfeiture, and profit disgorgement.2 In its findings of fact,3 the trial court found that, but for Orbison’s solicitation on behalf of API, Ma-Tex would have secured the two recertification orders of Halliburton Pinnacle and Arklatex and that it would have made a net profit of $2,321.00 on these orders. The trial court also found that Orbison’s and API’s actions in soliciting its customers caused Ma-Tex to lose good will of the value of $120,000.00. In addition, the trial court found that Orbison spent at least 10% of his working time between April 11, 2016, and August 12, 2016, assisting API in setting up its recertification division to the detriment of Ma-Tex. The trial court also entered conclusions of law that Ma-Tex should recover unjust enrichment damages as a result of Orbison’s misappropriation of trade secrets, and for his breach of fiduciary duties, in the amount of $1,866.15 (10% of the salary paid to Orbison by Ma-Tex from April 16 through August 12, 2016), and $2,307.68 (the amount paid to Orbison by Appellants also assert that Ma-Tex failed to plead lost profit damages. However, in Ma-Tex’s second amended petition, Ma-Tex alleged that it “[had] suffered, and [would] continue to suffer . . . lost customers, goodwill, and profits.” In its prayer, Ma-Tex asked for both actual and exemplary damages. This was sufficient to place Appellants on notice that Ma-Tex was seeking damages for lost profits. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896–97 (Tex. 2000). As Ma-Tex points out, API conceded in its motion for summary judgment in the trial court that Ma-Tex was seeking lost profits in all of its causes of action. 2 3 The trial court entered a large number of unchallenged findings of fact, which are supported by the evidence. See In re E.R.C., 496 S.W.3d 270, 288 (Tex. App.—Texarkana 2016, pet. denied) (“Unchallenged findings of fact are binding unless there is no evidence to support the finding or the contrary is established as a matter of law.”) (quoting McElwrath v. McElwrath, No. 03-14-00487-CV, 2016 WL 1566624, at *1 (Tex. App.—Austin Apr. 13, 2016, no pet.) (mem. op.) (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986))). We list many of those findings in an Appendix to this Opinion. 4 API from August 15 through August 31, 2016). Appellants challenge the legal sufficiency of the evidence to support these findings.4 “In reviewing a legal sufficiency complaint of an adverse finding on which the appellant did not have the burden of proof, the appellant must demonstrate on appeal that no evidence supports the adverse finding.” Great N. Energy, Inc. v. Circle Ridge Prod., Inc., 528 S.W.3d 644, 669 (Tex. App.—Texarkana 2017, pet. denied) (quoting Monasco v. Gilmer Boating & Fishing Club, 339 S.W.3d 828, 830 (Tex. App.—Texarkana 2011, no pet.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983))). We will find the evidence legally insufficient only when the record shows (1) a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla of evidence; or (4) the evidence established conclusively the opposite of a vital fact. Id. (quoting Monasco, 339 S.W.3d at 830) (citing Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). In considering legal sufficiency of evidence, we determine “whether the evidence at trial would enable reasonable and “When the appellate record includes the reporter’s and clerk’s records, . . . the trial court’s findings, express or implied, are not conclusive and may be challenged on appeal for evidentiary sufficiency.” E.R.C., 496 S.W.3d at 283 (quoting Lopez v. Rendsland, No. 03-10-00084-CV, 2010 WL 4053787, at *5 (Tex. App.—Austin Oct. 12, 2010, no pet.) (mem.op.) (citing Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003))). 4 5 fair-minded people to reach the verdict under review.” E.R.C., 496 S.W.3d at 284 (quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). Lost Profits. In challenging the trial court’s damage award of $2,321.00 for lost profits, Appellants challenge the legal sufficiency of the evidence supporting the trial court’s findings (1) that without Orbison’s solicitation on behalf of API, Ma-Tex would have secured the two recertification orders of Halliburton Pinnacle and Arklatex and (2) that Ma-Tex would have made a net profit of $2,321.00 on those orders. Assuming, without deciding, that sufficient evidence supports the trial court’s finding that Ma-Tex would have secured the two recertification orders, we find that insufficient evidence supports its finding that Ma-Tex would have made a net profit of $2,321.00 on those orders. The evidence at trial showed that Orbison’s solicitation for API resulted in API securing one recertification job each from Halliburton Pinnacle and Arklatex. API’s invoice to Halliburton Pinnacle showed charges for recertification of four 32” WTI sheaves, a load test and visual inspection of two chain slings and two wire rope slings, and a ½” Loc-a-loy, for total charges of $2,455.00. Its invoice to Arklatex showed charges for recertification of two 17” WTI sheaves, a break test on one prototype tool, and a line retention pin, for total charges of $885.00. Testimony regarding Ma-Tex’s lost profits from these two lost sales came from Matthews, its president. 5 Matthews testified as follows: Q. [By counsel for Ma-Tex] Would you please just assume for me I’ve done the math correctly, and that [the Halliburton Pinnacle and the Arklatex invoices] total $3,340? Ma-Tex offered Matthews as a lay witness. Appellants do not challenge Matthews’ competency to testify as to lost profits. 5 6 A. That’s correct. Q. And then based on that number, has Ma-Tex then attempted to determine how much profit would be derived if they had done those two sales? A. Yes, it was close to $2300. .... Q. (BY MR. SMITH) Make sure that our record is clear, how much was the amount that you just said? .... A. It was 23 -- $2321 is your net profits on that -- on those sales. In Texas, what constitutes sufficient evidence of lost profit damages is well-established: Recovery for lost profits does not require that the loss be susceptible of exact calculation. However, the injured party must do more than show that they suffered some lost profits. The amount of the loss must be shown by competent evidence with reasonable certainty. What constitutes reasonably certain evidence of lost profits is a fact intensive determination. As a minimum, opinions or estimates of lost profits must be based on objective facts, figures, or data from which the amount of lost profits can be ascertained. Although supporting documentation may affect the weight of the evidence, it is not necessary to produce in court the documents supporting the opinions or estimates. ERI Consulting Eng’rs, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex. 2010) (quoting Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex. 1992) (citations omitted)). However, “[a] plaintiff ‘must do more than show they suffered some lost profits.’” Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198, 224 (Tex. App.—San Antonio 2013, pets. denied) (quoting Houston Mercantile Exch. Corp. v. Dailey Petrol. Corp., 930 S.W.2d 242, 248 (Tex. App.—Houston [14th Dist.] 1996, no writ) (citing Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994) (per curiam))). Although there may be more than one method of calculating lost profits, once a 7 method has been chosen, there must be a complete calculation provided. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 85 (Tex. 1992). Merely testifying as to the amount of claimed lost profits without providing any indication of how the lost profits were determined is legally insufficient evidence of lost profits. Id. at 84; see Columbia Med. Ctr. of Denton Subsidiary, L.P. v. DFW Super Grp. II, L.L.C., No. 02-1200507-CV, 2013 WL 5658185, at *2 (Tex. App.—Fort Worth Oct. 17, 2013, pet. denied) (mem. op.) (testimony as to amount of lost profits without evidence indicating how they were determined is legally insufficient); Village Square, Ltd. v. Barton, 660 S.W.2d 556, 559–60 (Tex. App.— San Antonio 1983, writ ref’d n.r.e.) (same); Frank B. Hall & Co. v. Beach, Inc., 733 S.W.2d 251, 258 (Tex. App.—Corpus Christi 1987, writ ref’d n.r.e.) (same). In this case, Matthews testified that Ma-Tex had lost profits of $2,321.00 based on the total amount API charged Halliburton Pinnacle and Arklatex. He provided no explanation of how these lost profits were determined, and Ma-Tex points to no other evidence in the record that provided an explanation of how the lost profits were determined. Rather, Ma-Tex points only to the API invoices and Matthews’ testimony set forth above and claims that Matthews identified the goods and services involved, then “computed the incremental profit that Ma-Tex would have made on these projects.” Even if we were to accept Ma-Tex’s rather generous interpretation of Matthews’ testimony, his testimony still does not provide this Court with the objective facts, figures, or data from which the amount of lost profits were calculated, nor the method he used to calculate them. Consequently, the evidence is legally insufficient to support the finding of $2,321.00 in lost profits. 8 We sustain this appellate issue insofar as it relates to lost profits and reverse the trial court’s award of damages for lost profits. Goodwill. Appellants also challenge the legal sufficiency of the evidence supporting the trial court’s finding that Ma-Tex suffered $120,000.00 in damages to its good will. Appellants argue that Ma-Tex offered no evidence of the value of its good will before Orbison’s actions and offered no evidence showing how it reached its calculation of its damages. Ma-Tex responds that there is no set formula in determining good will damages and that Matthews’ testimony shows he calculated the minimum loss based on his and Drew’s time and the expenditure of company funds to repair its good will. Both parties point to the following testimony of Matthews as the only testimony regarding the amount of good will damages:6 Q. [By Counsel for Ma-Tex] Has -- has Ma-Tex undertaken to try to restore its good will it believes it has lost as a result of Mr. Orbison’s conduct? A. It’s going to be very difficult to do so; it’s going to take years to do that. Q. Do you believe that Ma-Tex has actually suffered damage to its good will as a result of Mr. Orbison’s conduct? .... A. Are you talking about an amount for the good will? Q. . . . . That is correct. A. It’s $120,000; 10,000 a month. Q. And for how long? That 10,000 a month is for how long? 6 Ma-Tex also argues that Matthews was competent to testify as to good will damages and that there was ample evidence that it suffered damage to its good will. As we read Appellants’ brief, it only challenges the sufficiency of the evidence supporting the amount of damages found by the trial court. 9 A. Twelve months. Q. And for how much? A. 120,000 total. “Good will is generally understood to mean the advantages that accrue to a business on account of its name, location, reputation and success.” Taormina v. Culicchia, 355 S.W.2d 569, 574 (Tex. Civ. App.—El Paso 1962, writ ref’d n.r.e.). Although good will is intangible, it is an integral part of a business, and damages may be recovered for its injury. Tex. & P. Ry. Co. v. Mercer, 90 S.W.2d 557, 560 (Tex. 1936); see Marsh USA, Inc. v. Cook, 354 S.W.3d 764, 777 (Tex. 2011). The value of good will is based on “the fixed and favorable consideration of customers arising from an established and well-known and well-conducted business.” Taormina, 355 S.W.2d at 574. The rule for measuring damage to good will “is the same as that for measuring damages to any other property.” Mercer, 90 S.W.2d at 560. However, the nature of good will “preclude[s] a fixed standard by which its value might be determined in every case.” Taormina, 355 S.W.2d at 575. Nevertheless, opinions as to the amount of good will damages must at least “be based on objective facts, figures or data from which the loss of good[]will may be ascertained.” Auburn Invs., Inc. v. Lyda Swinerton Builder, Inc., No. 04-08-00067-CV, 2008 WL 2923643, at *4 (Tex. App.— San Antonio July 30, 2008, no pet.) (mem. op.); see Ingram v. Deere, 288 S.W.3d 886, 903 (Tex. 2009) (unsupported opinion testimony insufficient evidence of value of good will). Although damages to good will may not be subject to precise calculation, an opinion as to its estimated value may not be based on speculation. Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 712 (Tex. 2016). 10 In a proper case, damages to good will may be shown by evidence of the percentage of the salaries of employees required to forego regular duties, and of other expenses incurred, to repair the damage to the company’s good will, in support of an opinion estimating the amount of damage to good will. See, e.g., Dozor Agency, Inc. v. Rosenberg, 218 A.2d 583, 585–86 (Pa. 1966). However, no such evidence was offered in this case. Matthews merely testified that the damage to Ma-Tex’s good will would be $10,000.00 a month for twelve months, totaling $120,000.00. Matthews never testified how he determined these estimates. Ma-Tex does not point to any testimony, and we have found none, that provides any objective facts, figures, or data in support of his opinion. See Auburn Invs., Inc., 2008 WL 2923643, at *4. Consequently, we find the evidence is legally insufficient to support the trial court’s finding of $120,000.00 in good will damages. We sustain Appellants’ second issue insofar as it relates to good will damages, and we reverse the trial court’s award of damages for good will. Other Damages. Appellants also challenge the trial court’s conclusions that Orbison was liable for unjust enrichment damages for his misappropriation of Ma-Tex’s trade secrets, and for fee forfeiture and profit disgorgement for the breach of his fiduciary duties to Ma-Tex.7 They argue that, since Orbison was an employee of Ma-Tex, he is not subject to a “fee forfeiture” and that he was not subject to “profit disgorgement” since there was no evidence that he was paid a commission on the two recertification jobs performed by API. The question is, then, whether these remedies are available against an employee who merely receives a salary. 7 The damages under both of these theories of recovery consisted of $1,866.15, being a portion of the compensation paid to Orbison by Ma-Tex, and $2,307.68, being equal to the amount of salary paid to Orbison by API from August 15, 2016 to August 31, 2016. 11 Generally, the term fiduciary “applies to any person who occupies a position of peculiar confidence towards another” and “contemplates fair dealing and good faith.” Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 512 (Tex. 1942). It is well established in Texas that an employee may be in a fiduciary relationship with his or her employer. See id. at 513; Wooters v. Unitech Int’l, Inc., 513 S.W.3d 754, 762–63 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). An employee may not, without breaching his fiduciary duties, “(1) appropriate the company’s trade secrets, (2) solicit the former employer’s customers while still working for his employer, (3) solicit the departure of other employees while still working for his employer; or (4) carry away confidential information.” Wooters, 513 S.W.3d at 763 (citing Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 512 (Tex. App.—Houston [1st Dist.] 2003, no pet.)); see Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 202 (Tex. 2002). In an unchallenged conclusion of law, which is supported by the evidence, the trial court found Orbison breached his fiduciary duties in each of these ways. When the court finds a breach of fiduciary duty, it may fashion an appropriate equitable remedy, including forfeiture of fees and disgorgement of any profit made at the expense of the employer. Swinnea, 318 S.W.3d at 873; Burrow v. Arce, 997 S.W.2d 229, 245–46 (Tex. 1999); Kinzbach Tool Co., 160 S.W.2d at 514. As the Texas Supreme Court noted, when an agent breaches his fiduciary duty, he is entitled to no compensation for conduct related to the breach, and if his breach is willful, “he is not entitled to compensation even for properly performed services.”8 Burrow, 997 S.W.2d at 244 (quoting RESTATEMENT (SECOND) 8 The trial court found that Orbison’s misappropriation of Ma-Tex’s trade secrets was willful. 12 OF AGENCY § 469 (1958)). The main purpose of these equitable remedies “is not to compensate an injured principal,” but rather “to protect relationships of trust by discouraging agents’ disloyalty.” Swinnea, 318 S.W.3d at 872–73 (quoting Burrow, 997 S.W.2d at 238). Thus, a court “may disgorge all ill-gotten profits from a fiduciary when a fiduciary . . . usurps an opportunity properly belonging to a principal, or competes with a principal.” Id. (citing Johnson, 73 S.W.3d at 200). It may also require the fiduciary to forfeit any compensation for his work paid by the principal. Id. Since the trial court found that Orbison breached his fiduciary duties to Ma-Tex, it had discretion to impose appropriate equitable remedies for the breach. Here, it elected to require forfeiture of a portion of the compensation paid by Ma-Tex to Orbison during the period of time that Orbison was assisting API to set up its recertification shop and was soliciting two of Ma-Tex’s employee’s to work for API. In addition, the trial court required disgorgement of an amount equal to the compensation paid by API to Orbison during the time that Orbison was actively competing with Ma-Tex by using Ma-Tex’s confidential information to solicit its customers. Under Swinnea and the cases cited therein, we see no essential distinction between forfeiting a fee paid to an attorney or trustee who breaches his fiduciary duty and forfeiting the salary paid to an employee who does the same. In each instance the breaching fiduciary received compensation from the principal while breaching his trust. Neither do we see an essential distinction between disgorging a fee paid to, or the profit made by, an agent who usurps his principal’s business opportunity and disgorging an amount equal to the salary paid to a former employee by his new employer when the former employee uses confidential information and trade secrets to solicit the customers of his former employer. In each instance, the breaching fiduciary profited by, or received compensation 13 for, breaching the trust of his principal. The same principles apply to each of these circumstances, and the remedies of forfeiture and disgorgement are “necessary to prevent such abuses of trust.” Id. at 874. Consequently, we find that, under the circumstances of this case, Orbison was subject to the forfeiture of his salary paid by Ma-Tex and to the disgorgement of the salary paid to him by API while he was actively using Ma-Tex’s confidential information to solicit its customers. We overrule Appellants’ second issue insofar as it relates to damages based on forfeiture and disgorgement.9 (2) There Was No Abuse of Discretion in Issuing the Permanent Injunction Appellants challenge certain aspects of the restrictions contained in the permanent injunction.10 A trial court’s grant or denial of a permanent injunction is reviewed for an abuse of Appellants also challenge the legal and factual sufficiency of the evidence supporting the trial court’s finding that Orbison spent 10% of his working time between April 11, 2016, and August 12, 2016, assisting API in setting up its recertification division. They argue that, since the trial court forfeited 10% of the salary Orbison received during this time, the lack of evidence as to how much time he spent assisting API should defeat the forfeiture. However, “the remedy of forfeiture must fit the circumstances presented.” Swinnea, 318 S.W.3d at 874 (quoting Burrow, 997 S.W.2d at 241). Factors to be considered in whether to impose a forfeiture remedy, and its amount, include: “[t]he gravity and timing of the breach of duty, the level of intent or fault, whether the principal received any benefit from the fiduciary despite the breach, the centrality of the breach to the scope of the fiduciary relationship, . . . any threatened or actual harm to the principal, . . . . [and] the adequacy of other remedies.” Id. at 875. In this case, the unchallenged findings of the trial court show that Orbison’s breach involved the misappropriation of Ma-Tex’s trade secrets, the use of confidential information to solicit Ma-Tex’s customer, the solicitation of two other employees who were key to its recertification division, and the assistance to API in setting up its recertification shop. They also show that Orbison actively sought to assist API to compete with Ma-Tex for four months before he left Ma-Tex’s employ. These findings show that the trial court appropriately considered the factors set forth in Swinnea in fashioning the amount of the forfeiture and did not base the amount solely on the finding challenged by Appellants. 9 10 Appellants also challenge the basis for the permanent injunction and API being prohibited from interfering with the employment agreement. However, their sole argument in support of these complaints is that, since Orbison terminated the employment agreement, he was no longer bound by its post-employment restrictions. For the reasons stated in section (6), below, we find that Appellants failed to preserve this argument. In addition, as discussed above, the trial court made unchallenged findings that Orbison and API misappropriated Ma-Tex’s trade secrets and that Orbison breached its fiduciary duties to Ma-Tex by soliciting Ma-Tex’s customers and disclosing and using Ma-Tex’s confidential information and trade secrets. The trial court also made an unchallenged finding that, without the 14 discretion. In re Epperson, 213 S.W.3d 541, 542–43 (Tex. App.—Texarkana 2007, no pet.) (citing Operation Rescue-Nat’l v. Planned Parenthood of Houston & Se. Tex., Inc., 975 S.W.2d 546, 560 (Tex. 1998)). The trial court abuses its discretion when it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). In pertinent part, the permanent injunction provides that Orbison and API desist and refrain from: Samuel D. Orbison a. Directly or indirectly disclosing or using Ma-Tex’s trade secrets and confidential information, which shall include Ma-Tex’s (1) uniquelydeveloped tracking software, and information derived therefrom; and (2) all information about Ma-Tex’s customers, including pricing information, purchase and bid histories, needs and requirements, and contact information of decision makers; b. Directly or indirectly competing with Ma-Tex’s niche business, in which it sells, services, and recertifies wireline equipment used in the upstream production of oil and gas, in the following United States markets: Texas, Louisiana, New Mexico, Oklahoma, Arkansas, Utah, Colorado, California, Kansas, Kentucky, Pennsylvania, Illinois, Mississippi, North Dakota, Nebraska, Montana, Ohio, Wyoming, and West Virginia, until August 12, 2021; .... American Piping Inspection, Inc. a. Directly or indirectly disclosing or using Ma-Tex’s trade secrets and confidential information, which shall include Ma-Tex’s (1) uniquelydeveloped tracking software, and information derived therefrom; and (2) all permanent injunction, Ma-Tex would suffer imminent harm and irreparable injury in the form of lost profits, customers, and good will. These provide an additional basis for the permanent injunction. See Braxton v. Chin Tuo Chen, No. 06-10-00134-CV, 2011 WL 4031171, at *10 n.6 (Tex. App.—Texarkana Sept. 13, 2011, pet. denied) (mem. op.). 15 information about Ma-Tex’s customers, including pricing information, purchase and bid histories, needs and requirements, and contact information of decision makers; and b. Directly or indirectly interfering with the Employment Agreement dated September 15, 2011 between Samuel D. Orbison and Ma-Tex, including the post-employment restrictions contained in the Employment Agreement. Appellants first complain that the trial court abused its discretion in enjoining Orbison from using Ma-Tex’s tracking software because, they contend, there is no evidence that he used the tracking software after he left Ma-Tex. However, the evidence at trial showed that Orbison had been trained on, and had used, Ma-Tex’s tracking software. Shortly before he left the employ of Ma-Tex, Orbison sent an email to API listing “the high value items” that needed to be in place for API to begin processing recertification orders. Included in the high value items was a “Certificate tracking website” that Drew identified as Ma-Tex’s Customer Care Center (CCC), its web-based tracking system. In the email, Orbison offered his upcoming vacation time to work on setting up API’s shop. Shortly after Orbison began working for API, he sent an email to one of Ma-Tex’s customers, Schlumberger, stating that “[t]he Bradford, PA location has some items that need to be recertified in the near future.” Drew testified that this information was contained in its CCC, or tracking, software. In addition, the trial court made an unchallenged finding that Orbison disclosed to API the concept of Ma-Tex’s logistical/distribution network and corresponding tracking software. This evidence demonstrates that Orbison had used and disclosed Ma-Tex’s tracking software and the information derived from it for the benefit of API and to the detriment of MaTex, both before and after he left Ma-Tex’s employment. Under these circumstances, we find that 16 the trial court did not abuse its discretion in enjoining Orbison from disclosing or using Ma-Tex’s tracking software and the information derived from it. Appellants also complain that the trial court abused its discretion by enjoining Orbison from soliciting Ma-Tex customers because, they contend, it is impossible for Orbison or API to ascertain who those customers might be. We interpret this complaint as relating to that portion of the injunction that enjoins Orbison from disclosing or using any information about Ma-Tex’s customers. Among the unchallenged findings of fact that are supported by the evidence, the trial court found that Ma-Tex provided Orbison various customer information confidential to Ma-Tex, including information more specifically listed in the court’s findings numbered 22–24 and 28–29 in the Appendix to this opinion. In this case, Orbison was bound by the post-employment restrictions from competing with Ma-Tex and from disclosing or using any of Ma-Tex’s confidential information. This confidential information included any customer information. It is well established that “a former employee is precluded from using for his own advantage, and to the detriment of his former employer, confidential information or trade secrets acquired by or imparted to him in the course of his employment,” even in the absence of an enforceable contractual post-employment restriction. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex. App.—Dallas 1993, no writ) (quoting Johnston v. Am. Speedreading Academy, Inc., 526 S.W.2d 163, 166 (Tex. Civ. App.— Dallas 1975, no writ). An injunction is a proper remedy to protect confidential information. Id. (citing Hyde Corp. v. Huffines, 314 S.W.2d 763 (Tex. 1958)). When the confidential information sought to be protected includes the identity of the complaining party’s customers, the injunction 17 need not identify those customers because to do so would defeat the purpose of the injunction. Safeguard Bus. Sys., Inc. v. Schaffer, 822 S.W.2d 640, 644 (Tex. App.—Dallas 1991, no writ) (citing Cottingham v. Engler, 178 S.W.2d 148, 151 (Tex. Civ. App.—Dallas 1944, no writ)). Further, it is not unreasonable “to assume that [the former employee] who is sought to be enjoined is sufficiently familiar with the employer’s business and its customers to avoid violating the injunction.” Id. (citing Cottingham, 178 S.W.2d at 151). In this case, it is reasonable to assume that, because of Orbison’s position as manager of Ma-Tex’s recertification division, which gave him substantial contact with its customers, Orbison has the necessary knowledge of Ma-Tex’s customers to enable Appellants to avoid violating the injunction. Further, the evidence also showed that Orbison has a list of Ma-Tex’s wireline recertification customers and their contact information in the contacts stored on his personal cellular telephone. Under these circumstances, we find that the injunction is sufficiently clear to enable Appellants to obey it. Consequently, we find that the trial court did not abuse its discretion in failing to identify Ma-Tex’s customers in the permanent injunction.11 Appellants also complain that the injunction is not clear as to whether Orbison can work in the listed states, or if he can perform work for customers in those states if he does it for a company that is not a Ma-Tex customer. We interpret their complaint as relating to that portion of the injunction that restrains Orbison from “[d]irectly or indirectly competing with Ma-Tex’s niche Appellants also complain that the injunction prohibits API from disclosing or using Ma-Tex’s trade secrets and confidential information, contending that no trade secrets were presented at trial and that there was no evidence that API ever used any Ma-Tex trade secrets. The evidence and findings of fact previously discussed belie the contention that no trade secrets were presented at trial. Further, unchallenged findings numbered 61–66, set out in the Appendix to this opinion, show API used Ma-Tex’s trade secrets. 11 18 business, in which it sells, services, and recertifies wireline equipment used in the upstream production of oil and gas” in nineteen listed states until August 12, 2021.12 “An injunction must be definite, clear, and concise, leaving the person enjoined in no doubt about his duties, and should not be such as would call on him for interpretations, inferences, or conclusions.” Vaughn v. Drennon, 202 S.W.3d 308, 316 (Tex. App.—Tyler 2006, no pet.) (citing Gulf Oil Corp. v. Walton, 317 S.W.2d 260, 264 (Tex. Civ. App.—El Paso 1958, no writ) (per curiam)). To the extent that Orbison proposes to perform work in the nineteen states that is related to the sales, service, or recertification of wireline equipment used in the upstream production of oil and gas, the injunction clearly restrains him from doing so, regardless of whether it is performed for Ma-Tex’s current customers, until August 12, 2021. At the same time, the injunction does not restrain Orbison from performing work that is not related to the sales, service, or recertification of wireline equipment used in the upstream production of oil and gas in those nineteen states, even if such work is performed for a customer of Ma-Tex. He remains unrestrained in states other than the specified nineteen states. The evidence at trial and the unchallenged findings of the trial court show that Orbison became the manager of Ma-Tex’s recertification division in 2013 and remained in that position until August 12, 2016. It is not unreasonable to assume that, based on his three years as manager of the recertification division, Orbison can easily ascertain what actions or work would be related to the sales, service, and recertification of wireline equipment. The injunction is sufficiently clear to inform Orbison of his obligations under the injunction. 12 Appellants do not challenge the geographical breadth or the temporal scope of the injunction. 19 For the reasons stated, the trial court did not abuse its discretion as to the injunctive relief, and we overrule this issue. (3) There Was No Abuse of Discretion in Denying API’s Motions for Sanctions Appellants contend that the trial court abused its discretion in denying the motion for sanctions brought pursuant to Rule 13 of the Texas Rules of Civil Procedure and Section 10.001 of the Texas Civil Practice and Remedies Code. See TEX. R. CIV. P. 13; TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (West 2017). API originally filed a motion for sanctions as a counterclaim,13 alleging that Ma-Tex had joined it as a defendant in several of its causes of action that were groundless and brought in bad faith. This motion was denied by the trial court in its corrected final judgment. API also filed a post-judgment motion for sanctions under Rule 13 and Section 10.001, asserting that several of the pleadings and motions filed by Ma-Tex had been filed in bad faith and without any factual basis or proper investigation. The trial court also denied that motion. We review a trial court’s order on a motion for sanctions under Rule 13 and Section 10.001 for an abuse of discretion. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Mobley v. Mobley, 506 S.W.3d 87, 93 (Tex. App.—Texarkana 2016, no pet.); R.M. Dudley Const. Co., v. Dawson, 258 S.W.3d 694, 707, 709 (Tex. App.—Waco 2008, pet. denied). We will reverse the trial court’s ruling “only if the trial court acted without reference to any guiding rules or principles, such that 13 Rule 13 and Section 10.001 only provide for the filing of a motion for sanctions as a remedy for filing pleadings in bad faith and do not create a cause of action for bad faith. Guidry v. Envtl. Procedures, Inc., 388 S.W.3d 845, 860 (Tex. App.—Houston [14th Dist.] 2012, pet. denied); Trussell Ins. Servs., Inc. v. Image Solutions, Inc., No.12-0900390-CV, 2010 WL 5031100, at *2–3 (Tex. App.—Tyler Dec. 8, 2010, no pet.) (mem. op.); Mantri v. Bergman, 153 S.W.3d 715, 717 (Tex. App.—Dallas 2005, pet. denied). When filed as a counterclaim for bad faith, the pleading is treated as a motion for sanctions. Guidry, 388 S.W.3d at 860; Trussell Ins. Servs., Inc., 2010 WL 5031100, at *2. 20 its ruling was arbitrary or unreasonable.” Mobley, 506 S.W.3d at 93 (quoting Low, 221 S.W.3d at 614). In considering a motion for sanctions, the trial court is to presume that the pleadings were filed in good faith. Low, 221 S.W.3d at 614; see TEX. R. CIV. P. 13. It is the burden of the party seeking sanctions to overcome the presumption of good faith. Low, 221 S.W.3d at 614 (citing GTE Commc’ns Sys. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993)). To prevail on a motion for sanctions under Rule 13, the movant must establish that the suit was (1) groundless and (2) brought either in bad faith or for the purpose of harassment. Mobley, 506 S.W.3d at 94 (citing TEX. R. CIV. P. 13). Under Section 10.001, the movant must establish “(1) that the pleading or motion was brought for an improper purpose, (2) that there were no grounds for the legal arguments advanced, or (3) that the factual allegations or denials lacked evidentiary support.” Id. at 95 (citing TEX. CIV. PRAC. & REM. CODE ANN. § 10.001 (West 2002)). An “‘improper purpose’ [is] the equivalent of ‘bad faith’ under Rule 13.” Id. (quoting Dike v. Peltier Chevrolet, Inc., 343 S.W.3d 179, 183–84 (Tex. App.—Texarkana 2011, no pet.)). Both Rule 13 and Section 10.001 require an evidentiary hearing to enable the trial court “to make the necessary factual determinations about the motives and credibility of the person signing the allegedly groundless pleading.” Click v. Transport Workers Union Local 556, No. 0515-00796-CV, 2016 WL 4239473, at *2 (Tex. App.—Dallas Aug. 10, 2016, no pet.) (mem. op.) (citing Dawson, 258 S.W.3d at 709; Keith v. Solls, 256 S.W.3d 912, 917 (Tex. App.—Dallas 2008, no pet.)). Without an evidentiary hearing, “the trial court has no evidence before it to determine that a pleading was filed in bad faith or to harass.” Mobley, 506 S.W.3d at 95 (quoting Alejandro 21 v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 669–70 (Tex. App.—Corpus Christi 2004, no pet.). The movant must secure an evidentiary hearing. Click, 2016 WL 4239473, at *2 (citing Trussell Ins. Servs., Inc., 2010 WL 5031100, at *4). Several of our sister courts of appeal have held that sanctions for violations of Rule 13 or Section 10.001 that are known to the movant before trial are forfeited if an evidentiary hearing and ruling are not secured before trial. Trussell Ins. Servs., Inc., 2010 WL 5031100, at *4; see Click, 2016 WL 4239473, at *2. The record in this case shows that API neither requested nor obtained an evidentiary hearing on its original motion for sanctions before the trial of the case. Nevertheless, Appellants point to certain testimony at trial which they contend shows that several affidavits and pleadings filed by Ma-Tex were filed in bad faith. Even assuming this testimony could be used to support API’s motion for sanctions, it does not show bad faith on the part of Ma-Tex. First, Appellants point to certain testimony by Matthews that they contend shows Matthews admitted that he had no evidence that API’s and Orbison’s actions had caused his company to lose customers. However, an examination of Matthews’ testimony indicates that, although he had information of at least one customer who Ma-Tex had lost, that evidence had not at that point been presented. Appellants also claim that Matthews admitted that Ma-Tex did not produce any documents to support its damages. Again, an examination of the testimony relied on by Appellants shows that Matthews testified that Ma-Tex had produced the specific documents requested, but had not produced documents that had not been requested by Appellants. Appellants’ brief also claims that Drew signed an affidavit accusing API and Orbison of stealing Ma-Tex’s custom tracking software, and it points to testimony rebutting that accusation. However, Drew’s affidavit made no such claim. 22 Rather, he averred that Orbison was using and disclosing confidential information and trade secrets, including its proprietary tracking software, to solicit Ma-Tex’s customers. This statement can reasonably be construed to mean Orbison was using the confidential information contained in the tracking software to solicit Ma-Tex’s customers. None of this testimony shows bad faith, that there were no grounds for the legal arguments advanced, or that the factual allegations lacked evidentiary support. Finally, although API obtained a hearing on its post-judgment motion for sanctions, it merely argued its motion and presented no evidence to the trial court. In the sanctions context, “[e]vidence must be admitted under the rules of evidence at the evidentiary hearing for a trial court to consider it.” Dawson, 258 S.W.3d at 710 (citing Alejandro v. Bell, 84 S.W.3d 383, 393 (Tex. App.—Corpus Christi 2002, no pet.); McCain v. NME Hosps., Inc., 856 S.W.2d 751, 757 (Tex. App.—Dallas 1993, no writ)). “Motions and arguments of counsel are not evidence in a sanction hearing context.” Click, 2016 WL 4239473, at *2 (citing McCain, 856 S.W.2d at 757). This record shows that API did not establish that the pleadings and motions of Ma-Tex were filed in bad faith or for the purpose of harassment, or that Ma-Tex’s claims against API were brought for an improper purpose, that there were no grounds for the legal arguments advanced, or that the factual allegations lacked evidentiary support. See Mobley, 506 S.W.3d at 96. On this record, we find that the trial court did not abuse its discretion in denying API’s motion for sanctions. We overrule this issue. 23 (4) There Was No Abuse of Discretion in Awarding Attorney Fees Appellants also assert that the trial court erred in awarding attorney fees against them. At trial, Ma-Tex’s attorney testified that the total amount of attorney fees incurred in prosecuting the claims that were recoverable under its pleadings was $216,399.00 and introduced fee statements in support of his testimony.14 He also testified that Ma-Tex had incurred attorney fees in the amount of $19,557.00 related to claims for which attorney fees were not recoverable. The trial court’s corrected judgment provided that Ma-Tex recover from Orbison and API, jointly and severally, attorney fees in the amount of $216,399.00 through trial for Ma-Tex’s breach of contract and misappropriation of trade secrets claims. As a prerequisite to appellate review, the record must show that Appellants raised the complaint at the trial court by a timely objection, request, or motion that stated the grounds of the complaint, and that the trial court either ruled, or refused to rule, on the complaint. Jaimes v. Mersha, No. 06-15-00079-CV, 2016 WL 2609291, at *5 (Tex. App.—Texarkana May 6, 2016, no pet.) (mem. op.); see TEX. R. APP. P. 33.1(a). Further, “[a]n objection at trial that does not comport with a point of error on appeal preserves nothing for review.” Anderson v. Snoddy, No. 06-1400096-CV, 2015 WL 5634564, at *11 (Tex. App.—Texarkana Sept. 25, 2015, pet. denied) (mem. op.). The Appellants did not object at trial, nor do they complain on appeal, to Ma-Tex’s failure to allocate its attorney fees between its breach of contract and misappropriation of trade secrets claims. 14 24 The only objection asserted by Appellants at trial was to the amount of attorney fees allocated to the claims for which attorney fees were not recoverable. 15 In addition, Appellants requested amended findings of fact and conclusions of law in which they argued that Ma-Tex had not properly segregated the amount of its attorney fees related to claims for which attorney fees are not recoverable, that Ma-Tex was not entitled to attorney fees for breach of contract because it had not proved its breach of contract damages, and that Ma-Tex was not entitled to attorney fees for misappropriation of trade secrets because it failed to prove that any misappropriation was willful and malicious.16 On appeal, Appellants assert that the trial court erred in awarding attorney fees against API (1) for breach of contract because there was no privity of contract between API and Ma-Tex and (2) for misappropriation of trade secrets because the trial court made no finding of willful and malicious misappropriation. They also assert that the trial court erred in awarding attorney fees against Orbison (1) for breach of contract because Ma-Tex failed to prove causation and damages and (2) for misappropriation of trade secrets because the trial court made no finding of willful and malicious misappropriation. To the extent that these complaints do not comport with the objections made by Appellants at trial and were not asserted by Appellants in a motion for new trial or other post-judgment filing, they were not preserved for our review. See Jaimes, 2016 WL 2609291, at *5; Snoddy, 2015 WL 15 Appellants also incorporated the arguments contained in their trial brief on attorney fees, which only addressed the necessity of segregating the amount of attorney fees related to claims for which attorney fees are not recoverable. 16 See TEX. CIV. PRAC. & REM. CODE ANN. § 134A.005(3) (West Supp. 2017) (providing that the trial court may award attorney fees to the prevailing party in a misappropriation of trade secrets claim if the misappropriation is “willful and malicious”). 25 5634564, at *11. To the extent they were preserved, we note that, contrary to Appellants’ assertion, the trial court found that the misappropriation of trade secrets was willful and malicious. The trial court entered a conclusion of law that “[u]nder Tex. Civ. Prac. & Rem. Code § 134A.005(3), Ma-Tex is entitled to recover its reasonable and necessary attorney’s fees in the amount of $216,399 from Orbison and API because Orbison’s and API’s misappropriation was willful and malicious.” Although the trial court’s finding that Orbison’s and API’s misappropriation was willful and malicious was included in a conclusion of law, “the designation is not controlling and we may treat it as a finding of fact.” Ray v. Farmers’ State Bank of Hart, 576 S.W.2d 607, 608 n.1 (Tex. 1979) (citing McAshan v. Cavitt, 229 S.W.2d 1016 (Tex. 1950)). Since this finding is unchallenged on appeal and there is some evidence to support it, we are bound by it. See E.R.C., 496 S.W.3d at 288. Attorney fees may be awarded to a prevailing party in a misappropriation of trade secrets case if the misappropriation was willful and malicious. TEX. CIV. PRAC. & REM. CODE ANN. § 134A.005(3). Therefore, the trial court did not err in awarding attorney fees to Ma-Tex for Orbison’s and API’s misappropriation of its trade secrets.17 We overrule this issue. 17 Since the trial court made one award of attorney fees for both the breach of contract and misappropriation of trade secrets claims, and Appellants do not complain about the lack of segregation between these claims, we need not address their complaints related to the award of attorney fees for breach of contract. 26 (5) Appellants Waived any Objection to Late-Disclosed Evidence by Refusing the Offered Continuance Appellants contend that the trial court erred in admitting any damage evidence. Their complaint is founded on Ma-Tex’s allegedly untimely supplementation to their requests for disclosures and interrogatories, which Appellants argue prejudiced and unfairly surprised them. Generally, a party who fails to timely amend or supplement a discovery response requesting evidence or the identity of witnesses may not introduce the evidence or offer the testimony of the witness at trial. TEX. R CIV. P. 193.6(a); Jackson v. Gould, No. 01-16-00203-CV, 2016 WL 5957214, at *5 (Tex. App.—Houston [1st Dist.] Oct. 13, 2016, no pet.) (mem. op.). However, the trial court may admit the evidence or allow the witness to testify if the proponent shows there is good cause for its failure to timely amend its response or identify the witness, or a lack of unfair prejudice or unfair surprise to the other parties. TEX. R CIV. P. 193.6(a)(1), (2), (b); Jackson, 2016 WL 5957214, at *5. Even if the proponent cannot show good cause or the lack of unfair prejudice or of unfair surprise, the trial court may grant a continuance or temporarily delay the trial “to allow opposing parties to conduct discovery regarding any new information presented by that response.” TEX. R CIV. P. 193.6(c); Jackson, 2016 WL 5957214, at *5. In this case, API served its request for disclosures18 with its original answer on September 21, 2016.19 API also served interrogatories on Ma-Tex, in which it asked Ma-Tex to identify each category or type of damage it was seeking to recover and the method and data fields Requests for disclosures include “the amount and any method of calculating economic damages.” TEX. R. CIV. P. 194.2(d). 18 19 Although it appears that Orbison also served requests for disclosures, they do not appear in the record. 27 used in calculating each damage category. On November 2, 2016, Ma-Tex responded to the request for disclosures and stated that its damages included loss of good will, customers, profits, and the benefit of its trade secrets, and that it would supplement its response with the amount and methods of calculating its damages. On November 8, 2016, Ma-Tex responded to API’s interrogatories regarding damages in essentially the same manner. Ma-Tex did not supplement its responses to the requests for disclosures until May 3, 2017, when it identified the amount of each of its claimed damages and the general basis of how each was calculated. On May 5, 2017, Ma-Tex supplemented its responses to API’s interrogatories in the same manner. On the same day, Ma-Tex again supplemented its responses to the requests for disclosures and identified, for the first time, two of Ma-Tex’s officers, Drew and Matthews, as experts who would testify regarding its damages. On May 9, 2017, API filed a motion asking the trial court to strike Ma-Tex’s supplemented responses as untimely, which was denied by the trial court. Before the trial began on June 5, 2017, Appellants reasserted their objections to Ma-Tex’s late designation of its damage models and of Drew and Matthews as experts on damages. Appellants argued that, because of the late disclosures, they were deprived of the opportunity to review any of the underlying financial records that formed the basis of the damage calculations and the chance to retain their own rebuttal expert. In addition, Appellants pointed out that, in the second deposition of Drew, taken before the supplementation, Drew was instructed to not answer questions regarding damages. As a result, Appellants claimed that they had been prejudiced and unfairly surprised. 28 After noting that because Ma-Tex was seeking an injunction, the trial schedule had been expedited, the trial court offered Appellants the following relief: THE COURT: . . . . Court’s relief’s going to be to you, [Appellant], is if you believe that you would be prejudiced by the late production, would be a continuance of this trial setting. . . . [S]o that you have an opportunity to explore further the issues; the damage model, the information behind the damage model. Would you like a continuance, Counsel? In response, Appellants rejected the offered continuance, arguing that it was Ma-Tex’s burden to show good cause for the late supplementation of their discovery responses. The trial court then overruled Appellants’ objection. Even before the current rules expressly allowed the trial court to provide relief for an untimely, or lack of, supplementation of a discovery response, by granting a continuance or postponement of the trial, we recognized the trial court’s inherent authority to do so. See WalMart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 671–72 (Tex. App.—Texarkana 1999, pet. denied) (citing Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915–16 (Tex. 1992)). In Tinsley, we held that a party complaining of the admission of evidence on the basis of a failure to supplement discovery, who refused the trial court’s offer to postpone the trial to allow the party to conduct any needed discovery, waived any complaint about the admission of the evidence. Id. at 672. After Tinsley, the rules of civil procedure have been amended to expressly allow the trial court to fashion a remedy to correct any prejudice to the opposing parties caused by a party’s late, or lack of, supplementation by continuing or postponing the trial. See TEX. R CIV. P. 193.6(c). In this case, the trial court offered the remedy provided in Rule 193.6(c), but Appellants refused to continue the trial. In similar circumstances, several of our sister courts of appeals have found a 29 waiver of any complaint under Rule 193.6. See Santos v. Comm’n for Lawyer Discipline, 140 S.W.3d 397, 404 (Tex. App.—Houston [14th Dist.] 2004, no pet.); see also Jackson, 2016 WL 5957214, at *5; Walters v. Northcutt, No. 12-03-00247-CV, 2005 WL 341694, at *5 (Tex. App.— Tyler Feb. 10, 2005, no pet.) (mem. op.); Tri-Flo Int’l v. Jackson, No. 13-01-472-CV, 2002 WL 31412532, at *2 (Tex. App.—Corpus Christi Oct. 24, 2002, no pet.). Likewise, we hold that, by refusing the offered continuance, Appellants waived any complaint regarding the admission of late-disclosed damage evidence or the damage testimony of Drew and Matthews. See Tinsley, 9