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Click here for the full text of this decision FACTS:Charles Jeff Cobbs worked for Ameristar Jet Charter Inc. from 1994 to 2002. Upon his resignation from Ameristar, Cobbs started Falcon Air, using one plane owned by Tech Air Services. Cobbs sued Ameristar a week after he quit. He sought a declaratory judgment that the confidentiality agreement was unenforceable. Ameristar filed a counterclaim for breach of fiduciary duty, tortious interference with prospective contract, breach of contract and misappropriation of trade secrets. Ameristar also sought to enjoin Cobbs and Falcon Air from doing business with Tech Air. The trial court granted Ameristar’s request for an injunction. After the injunction was lifted, Cobbs and Falcon Air filed claims for malicious prosecution, wrongful injunction and tortious interference with existing contracts. In this suit, Cobbs also sought a declaration that certain items claimed by Ameristar to be trade secrets were not trade secrets. A jury ruled for Cobbs on his malicious prosecution and intentional interference with existing contracts. The jury ruled Cobbs did not breach any fiduciary duty to Ameristar or misappropriate any Ameristar trade secrets. The jury further ruled that Cobbs did not breach the confidentiality agreement or tortiously interference with Ameristar’s prospective contracts. Only a few of the trade secrets claimed by Ameristar were so found by the jury. The trial court entered judgment on the verdict except as to Cobbs’ wrongful injunction and tortious interference claims. These the trial court entered a judgment notwithstanding the verdict for Ameristar. The parties cross appeal. HOLDING:Affirmed in part; reversed and rendered in part. The court first addresses Ameristar’s challenge to the sufficiency of the evidence supporting the rulings against it. The court notes that it is undisputed that Cobbs filed the paperwork to form Falcon Air before he resigned from Ameristar, but there was no evidence that Falcon Air actually competed with Ameristar while Cobbs was still employed. The mere formation of the company while Cobbs still worked for Ameristar is no basis for concluding, as a matter of law, that Cobbs breached his fiduciary duty to Ameristar, as Ameristar argues. Nor was a breach of fiduciary duty established by the fact that Cobbs began negotiating with Tech Air. There was conflicting evidence over whether Ameristar instructed Cobbs to investigate a connection with Tech Air, but there was evidence that could provide the basis for the jury’s decision that Ameristar abandoned any potential opportunity presented by Tech Air. Consequently, once Ameristar abandoned its plans, Cobbs was free to enter into plans of his own. As to Cobbs’ supposed misappropriation of trade secrets, the court finds evidence that Cobbs conducted independent research to come up with ideas for soliciting business. “Cobbs’ mere solicitation of brokers and carriers the jury found to be trade secrets, absent a finding that Cobbs improperly obtained or utilized these trade secrets, does not compel a finding that Cobbs breached his fiduciary duty to Ameristar.” The court does agree with Ameristar, however, that the trial court erred in finding for Cobbs on his claim of malicious prosecution. The court says resolution of this issue centers on damages that is, whether Cobbs presented evidence of lost profits resulting from the three-month injunction. The court finds evidence of such damages was legally insufficient. Cobbs’ conclusory statements that he made “positive money” before the injunction and that the dollar amount of his damages was unascertainable do not establish that he lost any profits as a result of Ameristar’s actions. Neither Cobbs nor Falcon Air presented any objective facts, figures, data or other evidence of historical profitability to show that Falcon Air was indeed making a profit at the time of the injunction. The court finds the trial court did not err in denying Ameristar’s request for attorneys’ fees. OPINION:Morris, J.; Morris, Wright and Richter, JJ.

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