Appellant's Motion for
En Banc Reconsideration

Beginning of Legal Text

NO.05-97-01098-CV

APPELLANT'S MOTION FOR EN BANC RECONSIDERATION

Pursuant to Rule 49.7 of the Texas Rules of Appellate Procedure, Appellant Evan Brown files this Motion for En Banc Reconsideration, and would respectfully show the Court as follows:

INTRODUCTION

On April 24, 1997, DSC sued Evan Brown, its former employee, in the 199th Judicial District Court of Collin County, Texas. DSC contends that it owns an idea in Evan Brown's mind (often referred to as the "Solution") which, if it works, will allow the user of a software program to convert machine executable binary code into a high-level source code using logic and data abstractions. On June 30, 1997, the Trial Court entered a Temporary Injunction Order which requires Brown to disclose his idea to DSC and allows DSC to patent the idea. Brown promptly filed an appeal with this Court on July 1, 1997. After hearing oral argument, this Court held in an Opinion dated January 6, 1998 that the Trial Court's Judgment awarding DSC preliminary injunctive relief should be affirmed and entered a Judgment to that effect. On January 12, 1998, Appellant filed a Motion for Rehearing. The Court denied the Motion without opinion by Order dated February 11, 1998. Appellant now files this Motion for En Banc Reconsideration pursuant to Rule 49.7 of the Texas Rules of Appellate Procedure seeking an en banc reconsideration of the Court's January 6, 1998 Opinion and Judgment for the reasons set forth more fully below.

POINTS OF ERROR

1. The Court of Appeals erred in concluding that the instant appeal was unnecessary because the parties could have simply proceeded to trial.

2. The Court of Appeals erred in failing to address the merits of Appellant's First Point of Error as set forth in Appellant's Brief.

3. The Court of Appeals erred in failing to address the merits of Appellant's Second Point of Error as set forth in Appellant's Brief.

ARGUMENT AND AUTHORITIES

1. The Court of Appeals erred in concluding that the instant appeal was unnecessary because the parties could have simply proceeded to trial (Appellant's First Point of Error).
   In its Opinion, the Court suggested that this appeal was unnecessary because the parties could have simply proceeded to trial. This Court suggested that interlocutory appeals such as the instant appeal simply increase delay and expense, and should be foregone in favor of an expeditious trial on the merits. As set forth below, Appellant's exercise of his right to appeal the Trial Court's injunction was the only way in which he could prevent the irreparable harm and alteration of the status quo which would be occasioned by his obedience to the Trial Court's injunction.

   As stated above, the parties and the Trial Court agreed to postpone the trial of this cause pending a ruling from this Court on the appeal of the injunction. Appellant believed that disclosure of his idea to DSC prior to a trial on the merits would cause him irreparable harm, alter the status quo, award DSC full and final relief and determine ownership rights in property without a trial. Appellant strongly believed that full disclosure of his idea to DSC would render a trial verdict in his favor meaningless and that, in the event of an adverse verdict, such a disclosure would render an appeal of the verdict essentially meaningless. For its part, DSC claimed that it could not adequately prepare for trial without a full disclosure of Appellant's idea. It also successfully claimed to the Trial Court that it could not respond to a Motion for Summary Judgment filed by Appellant without a full disclosure of Appellant's idea; the Trial Court subsequently relieved DSC of the burden of responding to the Motion and declined to set the Motion for hearing pending this Court's ruling.

   Within the last few days, counsel for Appellant has learned that DSC intends to file a Motion to Compel a response to an interrogatory propounded by DSC seeking full disclosure of Appellant's code conversion solution. The Trial Court previously denied a similar motion to compel on the basis that the relief sought therein was barred by Rule 43(d) of the Texas Rules of Appellate Procedure while its injunction was on appeal before this Court. If this Court does not reconsider its Opinion and Judgment, the Trial Court will likely order Appellant to disclose the solution to DSC prior to a trial on the merits. Because most discovery rulings are not subject to mandamus relief, Appellant will be left without an adequate remedy at law should this occur.

   Under the unique circumstances of this case, and given the broad relief provided to DSC by the Trial Court's injunction, it simply was not and is not practical to force this case to trial without this Court's resolution of the legal disputes relating to the injunction at issue. As such, this appeal was absolutely necessary to a prompt resolution of this case. It was error for the Court to conclude otherwise and to decline to address the merits of the appeal based on its conclusion.

2. The Court of Appeals erred in failing to address the merits of Appellant's First Point of Error as set forth in Appellant's Brief (Appellant's Second Point of Error).
   Appellant's First Point of Error as set forth in its Brief is that the Trial Court abused its discretion by entering a Temporary Injunction Order which requires Brown to disclose his idea to DSC and allows DSC to obtain a patent on the idea pending a jury trial on the merits because such an injunction disturbed the status quo, awarded DSC full and final relief, ruled on the merits of DSC's ownership claim and awarded DSC ownership rights without a trial. In this Court's Opinion, it stated that "the only issue to be decided in a temporary injunction is whether the applicant may preserve the status quo of the suit's subject matter pending a trial on the merits." Opinion at p. 4. This is precisely the point raised by Appellant in his First Point of Error. As Appellant stated in his Brief, and at oral argument the Trial Court's injunction amounts to an abuse of discretion precisely because it disturbs rather than preserves the status quo. Moreover, the injunction constitutes an abuse of discretion because it attempts to do more than preserve the status quo by awarding DSC full and final relief, ruled on the merits of DSC's ownership claim and awarding DSC ownership rights without a trial.

   Rather than addressing the merits of Appellant's First Point of Error, this court dismissed the point without any discussion or analysis. In its Opinion, the Court concluded that resolution of Point of Error Number Two "may be outcome determinative" and therefore held that the appeal "seeks an advance ruling on the merits of the case." Opinion at p. 5. Based upon this holding, the Court overruled not only point of error number two, but point of error number one as well. The first point of error however, cannot be characterized either as outcome determinative or as seeking an advance ruling on the merits. That point of error was merely directed at the propriety of the injunction which is the subject of this appeal. It was error for the Court to fail to address the first point of error simply because it felt that the second point of error "seeks an advance ruling on the merits of the case."

3. The Court of Appeals erred in failing to address the merits of Appellant's Second Point of Error as set forth in Appellant's Brief (Appellant's Third Point of Error).
   In its Opinion, the Court suggested that Appellant's Second Point of Error as set forth in Appellant's Brief seeks an advance ruling on the merits of the case and declined to address the merits of the point of error. That point of error was based upon the argument that the employee agreement which the Trial Court enforced through its injunction is unenforceable due to a lack of consideration. As set forth below, that point of error relates directly to the propriety of the injunctive relief which is the subject of this appeal, and is not simply an attempt to secure an advance ruling on the merits.

   The injunction entered by the Trial Court sought to enforce the terms of an Employee Patent, Copyright and Proprietary Information Agreement (the "Agreement") signed by Appellant on April 27, 1987, one week after beginning his employment with Appellee. That Agreement, and Appellee's claim that Appellant has breached the Agreement, unquestionably constitutes the sole basis for the relief afforded DSC in the injunction on appeal. In fact, in the injunction order, the Trial Court specifically stated that "the Employment Agreement is a valid and enforceable contract between DSC and Brown." Because the validity and enforceability of the Agreement is the foundation upon which the injunction was built, it was wholly appropriate for Appellant to question this legal conclusion in this appeal.

   A determination by this Court that the Employee Agreement at issue is unenforceable due to a lack of consideration would logically call into question the propriety of the Trial Court's injunction, which essentially enforces the terms of the Agreement. Such a determination might also be outcome determinative with respect to Appellee's breach of contract claim (Appellee would likely argue that such a ruling does not affect Appellee's other, non-contractual claims). Although such a ruling might have a broader impact than simply invalidating the injunction, this fact alone should not dissuade the Court from making a ruling which goes to the core of the injunction at issue in this appeal. After all, if Appellee prevails at trial, this Court will eventually be called on to decide the issue of the Agreement's enforceability. If this Court's conclusion is that the Agreement is unenforceable, the Court would actually promote judicial efficiency and economy by reaching such a conclusion sooner rather than later. It was error for the Court to fail to address the merits of this point of error.

REQUEST FOR RELIEF

For the reasons set forth above, Appellant Evan Brown requests that this Motion for En Banc Reconsideration be granted and that this Court thereafter sustain Appellant's points of error, enter an Order setting aside the Trial Court's Temporary Injunction Order and grant Appellant such other and further relief to which he may be justly entitled.

Dated: April 7, 1998.

Respectfully submitted,


_____________________
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RICHARD A. SAYLES
State Bar No. 17697500
ERIC D. PEARSON
State Bar No. 15690472
SAYLES & LIDJI, P.C.
A Professional Corporation
4400 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
(214) 939-8700
(214) 939-8787 (fax)


Attorneys for Appellant

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument has been served upon all counsel of record on this 7th day of April, 1998, pursuant to rule 21 a of the Texas Rules of Civil Procedure.

_____________________
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