Full opinion text
OPINION ROBERTSON, Justice. This appeal is from a judgment for appel-lee, plaintiff in the trial court, on its claim of “misappropriation of confidential, trade secret and/or technical information” for a total sum of $17,500,000 which included $5,000,000 in attorney fees awarded against Stewart and Stevenson only. Each appellant has filed it’s own brief; Stewart and Stevenson (S & S) brings a total of twelve points of error; Ohmstede, Inc. (Ohmstede) brings six points, and Ohmstede Mechanical Services, Inc. (OMSI) brings five points. The controlling issues are whether there is a cause of action for misappropriation of confidential information, whether global submission of separate damage claims was error, whether an award of attorneys fees based upon a percentage of the total recovery for causes of action for both breach of contract and tort was proper, sufficiency of evidence to support the finding of alter ego, and sufficiency of evidence to support trade secret misappropriation. We reverse. Serv-Tech, Inc. (Serv-Tech) had been in the business of providing on-site heat exchanger cleaning services for refineries and petrochemical plants for a number of years. Ohmstede had been in the heat exchanger repair and cleaning business for years, but most of its work was done in their shops located in various places, rather than on-site. OMSI, as will be more fully developed later on, was a new-comer to the same field in 1989. A portion of S & S’s business includes the design, development and manufacturing of equipment for use in the oil, gas and petrochemical industry. In 1984, Serv-Tech employed S & S to help build a “Fast Clean” machine, a revolutionary piece of machinery because it was totally integrated and the truck-mounted unit featured a remote-controlled cleaning boom-arm with an eight-lance cleaning device, which was used to clean the tube bundles in the heat exchangers in refineries and petrochemical plants. The first unit, a prototype, minus the cleaning boom arm was delivered to Serv-Tech in the first part of February 1985 and by early 1986, S & S built eight of these units for Serv-Tech. On February 19, 1985, Serv-Tech Specialists, Inc., and S & S entered into a “Secrecy Agreement.” The agreement recited that Serv-Tech had “rights in certain apparatus and methods for cleaning tube bundles for shell and tube heat exchangers”; that S & S desired “to receive proprietary information concerning such apparatus and methods (hereinafter ‘TECHNICAL INFORMATION’) for the purpose of evaluating same and budding of prototype equipment for testing and use by Serv-Teeh” and that the parties agreed that S & S would “not ... disclose said TECHNICAL INFORMATION to any third party and not ... use said TECHNICAL INFORMATION except for construction and test purposes....” The agreement did not identify the information that was to be protected. This forms the basis for most of the disagreement in this suit. Serv-Tech contended the secrecy agreement covered all components of the Fast Clean machine, while S & S contended the secrecy agreement covered only the cleaning boom arm and that all other components were already well-known in the heat exchanger cleaning business practiced by many companies. Patent attorneys for Serv-Teeh were involved from the outset to develop patents. Patents were applied for in 1985 and were issued for the Fast Clean in February 1989. In accordance with federal patent law, numerous drawings and technical specifications were provided to the public in the patent application, which described, among other things, the cleaning boom-arm, the lance device, the high pressure water control system, the pump system, the remote control panel, the nozzle head, the hydraulic control system and the electrical controls. In 1986 and 1987, respectively, Serv-Tech hired two engineers from Exxon, Robert Wetzel and Thomas Boisture. In 1989, Wet-zel and Boisture, along with two other employees of Serv-Tech, Gene Livingston and James Jeffrey, left the employ of Serv-Tech to form a company to compete in the heat exchanger cleaning business, which business became known as Ohmstede Mechanical Services, Inc. The primary funding for OMSI came from special distributions of approximately four million dollars Ohmstede Inc. voted to its individual (family member) shareholders, who in turn formed OMSI and elected Wetzel its president. In September, 1989, OMSI entered into a confidentiality agreement with S & S and, based upon sketches of the machine it desired, S & S built for and delivered to OMSI four such machines. Through patent attorneys for OMSI, OMSI was issued five patents for the machine it developed. The design for the Serv-Tech was drastically different from the OMSI machine, was not totally integrated and did not incorporate the cleaning boom arm. Serv-Tech filed suit against S & S, Ohms-tede, OMSI, Wetzel, Livingston, Jeffrey and Boisture on January 26,1990. Trial was had on Plaintiffs Sixth Amended Petition alleging that the defendants had misappropriated “confidential, trade secret and/or technical information of Serv-Tech.” Serv-Tech alleged the trade secret information and technical information “includes, but is not limited to, manufacturing practices, manufacturing drawings, worksheets, reports and other tangibles made in connection therewith, customer information, vendor information, bid information, employee information and budget information.” In response to special exceptions, Serv-Tech filed an amended designation listing sixty-four “Particular Items of Trade Secrets/Technical/Proprietary Information” which it contended “each and every Defendant is responsible for the wrongful misappropriation of’ as a co-conspirator. In the designation, Serv-Teeh further delineated the technical information to be: 1. information relating to the hydroblast-ing Fast Clean method “with a high velocity comparatively low pressure, high volume shaped stream of water” 2. information on the use of “sub-sonic, comparatively low pressure, high volume shaped stream of water.” The benefits of using “a main nozzle pressure of approximately 5,000 6,000 psi and the use of flow rate parameters of 100 gallons per minute on the shell side” 3. information that “the key to diesel pump efficiency is the design of the equipment permitting travel of water through the water delivery system with minimized loss of horsepower” 4. information “relating to the importance of mobility * * * to improve the efficiency of these applications” 5. information “regarding the use of flow parameters” 6. “the importance of considering pressure drop in fast clean operations” 7. “the proper placement and mounting of filters, hydraulic systems, hydraulic tank control valves, regulators and air lines for easier accessibility” 8. information on specific parts or components to be used in the construction of fast clean units 9. the design advantage of the system delivering maximum pressure and flow 10. information regarding the specific mounting of hydraulic filters and an electrical distribution panel 11. the design advantages of enclosing and encasing high pressure hoses 12. a main nozzle speed of three to four feet per second 13. information concerning the importance of containing high pressure water hoses within the chamber for safety 14. the “inter-working” of all the various off-the-shelf parts 15. “the conceptual drawings and isometric drawings * * * that disclosed the proper application, usage and design” for the equipment S & S was building for Serv-Tech 16. information concerning “the duty cycles and tube bundle cleaning equipment” 17. information concerning “usage of dual partek L 450 tri-plex pumps with 1½ inch diameter plungers” 18. information concerning use of dual pumps in the event of a pump failure “for customer satisfaction” 19. information concerning the use of power from the pump truck for both the hydraulics and water supply 20. information concerning the proper mounting design and assembly of the transmission components for the pumping units and “the importance in reducing downtime and operators inconvenience” 21. the discovery by Serv-Tech that 6-71 Detroit diesel engines were not powerful enough 22. information concerning the problems “that cyclical loading” creates for the pumps 23. information concerning “time meters and wiring of same” on high pressure pumps 24. information on the requirement for heavy pressure gauges 25. the need for heat exchangers for the hydraulic oil 26. information concerning the designs for intake water filters 27. information concerning the use of “a modulating control valve” to reduce water hammer 28. the importance of designing low point drains in the water system for use in sub-freezing environments 29. information concerning the design and use of coolers including the use of stainless steel 30. information concerning the use of control valves compatible with “refinery supply water” 31. information concerning the “Murphy system” for the pressing of one button for shut down safety 32. information concerning design advantages of using “off-the-shelf’ parts for minimizing down time for repair 33. information on design criteria for a high pressure water delivery system including “Fisher Control Valves” 34. charts “interrelating diesel engine RPM with transmission gear ratio” in order to obtain desired delivery of and pressure of water 35. information concerning the sizing of water hoses 36. information concerning the use of high pressure dump valves operated from a remote- control box 37. information concerning use of only-one dump valve 38. importance of “going from large flapper valve to a small flapper valve to achieve a throttling effect to eliminate water hammer” 39. information on need to arrange components in such way that if suction water tank overflows the overflow does not “cascade into oil reservoirs” 40. information on side load torques that must be considered when designing the boom-arm 41. information on the design, construction and operation of a remotely controlled cleaning lance 42. information concerning the benefits of using multiple lances 43. the design and placement of the lance block 44. the use of plastic runners for the manifold block to minimize friction and information on the friction and wear 45. information that the “lance buckling load” for each lance should be up to 1,000 pounds of force 46. information concerning the importance of using “high strength, light weight” tubes for the lances 47. information concerning the importance of a chamber surrounding the lances to provide buckling support protection 48. information concerning the use of casing for the hoses 49. information concerning the design of indexers for lance configuration 50. information concerning the use of rigid pipes as adaptors on the lance machine 51. information on the use of hydraulically powered drive motors for actuating lances as opposed to pneumatically powered systems 52. information on the design of a lance gun using “force limiting hydraulic controls” to prevent overloading 53. information concerning the use of pressure relief valves of the adjustable type 54. information on the use of lance velocity variance of 0 to 4 feet per second 55. the design, construction and operation of a remote control system 56. information concerning an electrical control system having dual controls 57. information concerning “the use of a remote control system in the positioning of an operator” to increase the efficiency of the cleaning 58. information that remote control boxes should be waterproofed 59. information concerning the use of air driers for the instrument and control system 60. information concerning cable breakage at the control cable plug connection points 61. information regarding the use of a telescoping boom “for sell (sic) side” cleaning. In this amended designation Serv-Tech also listed eight items of “trade secrets and/or proprietary and confidential information” involved in claims against its forfner employees and OMSI: (1) man-hour standards, (2) exchanger bid walk documentation, (3) estimating and bid forms, (4) job cost control and progress tracking methods, (5) vendor customer list, (6) employee listing, (7) business plans and (8) “other-general” under which Serv-Tech listed “bid information system” The individual defendants were non-suited on the day of trial, and following the close of evidence, the case was submitted on nineteen questions. The jury: (1) found that S & S failed to comply with the secrecy agreement; (2) failed to find that S & S engaged in an improper use or disclosure of a trade secret, but found that Ohmstede and OMSI did; (3) found that S & S, Ohmstede and OMSI engaged “in an improper use or disclosure of confidential information of Serv-Tech”; (4) failed to find that S & S engaged “in a civil conspiracy regarding improper use or disclosure of trade secret information” of Serv-Tech, but found that Ohmstede and OMSI did do so and found that all three appellants engaged in such a conspiracy regarding improper use or disclosure of “confidential information” of Serv-Tech; (5) found that Serv-Tech suffered $12,500,000 damages; (6) failed to find malice; (7) found that OMSI was an alter ego of Ohmstede, and (8) found 40% “of Serv-Tech’s recovery” as a reasonable fee for Serv-Tech’s attorneys, resulting in the award of $5,000,000 in attorneys fees. RESTATEMENT (First) OF TORTS § 757 provides: One who discloses or uses another’s trade secret, without a privilege to do so, is liable to the other if (a) he discovered the secret by improper means, or (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him, or (c) he learned the secret from a third person with notice of the facts that it was a secret and that the third person discovered it by improper means or that the third person’s disclosure of it was otherwise a breach of his duty to the other, or (d) he learned the secret with notice of the facts that it was a secret and that its disclosure was made to him by mistake, (emphasis supplied) In connection with the issue of misappropriation of trade secrets, the trial judge, quoting from comment b to § 757, instructed the jury: A trade secret may consist of any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it. It may be a formula for a chemical compound, a process of manufacturing, treating or preserving materials, a pattern for a machine or other device, or a list of customers. A trade secret is a process or device for continuous use in the operation of the business. Generally it relates to the production of goods, as, for example, a machine or formula for the production of an article. It may, however, relate to the sale of goods or to other operations in the business, such as a code for determining discounts, rebates or other concessions in a price list or catalogue, or a list of specialized customers, or a method of bookkeeping or other office management. The subject matter of a trade secret must be secret. Matters of public knowledge or of general knowledge in an industry cannot be appropriated by one as his secret. Matters which are completely disclosed by the goods which one markets cannot be his secret. Substantially, a trade secret is known only in the particular business in which it is used. It is not requisite that only the proprietor of the business know it. He may, without losing his protection, communicate it to employees involved in its use. He may likewise communicate it to others pledged to secrecy. Others may also know of it independently, as, for example, when they have discovered the process or formula by independent invention and are keeping it secret. Nevertheless, a substantial element of secrecy must exist so that, except by the use of improper means, there would be difficulty in acquiring the information. In connection with the issue of “improper use or disclosure of confidential information,” the trial judge instructed the jury: “Confidential information” — Although given information is not a trade secret, one who receives the information in a confidential relation or discovers it by improper means may be under some duty not to disclose or use that information. Because of the confidential relation or the impropriety of the means of discovery, he may be compelled to go to other sources for the information. The duty not to use or disclose “confidential information” may be imposed by employment or contract where one person trusts and relies upon the other. Such information may be a trade secret or similar specific information received under moral or business circumstances that would reasonably require confidentiality. This is determined by the actual facts of the relationship. All three appellants assign points of error to the trial court’s submission of question 7 and the accompanying definition of confidential information, quoted above, because there is no cause of action for misappropriation of confidential information. Question 7 inquired: Did any defendant engage in an improper use or disclosure of confidential information of Serv-Tech that was a proximate cause of damage to Serv-Tech? “Improper use or disclosure” means one who discloses or uses another’s “confidential information” and: (a) he discovered the confidential information by improper means; or (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the confidential information to him; or (c) he learned the confidential information from a third person with notice of facts that it was confidential information and that the third person discovered it by improper means or that the third person’s disclosure of it was otherwise a breach of his duty to the other; or (d) he learned the confidential information with notice of the facts that it was confidential information and that its disclosure was made to him by mistake. The jury answered “yes” for all three appellants. Thus, the trial court, in submitting the question and the accompanying instructions, created a cause of action for misappropriation of confidential information by changing the requirement in § 757, subsections (a) through (d) that the “trade secret” be secret to a requirement that the matter be only “confidential information.” Appellee argues that there is a cause of action for disclosing confidential information even though the information “is not legally a trade secret,” citing RESTATEMENT (First) OF TORTS § 757 (1939). Appellee quotes from comment b to the section, as follows: Information not a trade secret. Although given information is not a trade secret, one who receives the information in a confidential relation or discovers it by improper means may be under some duty not to disclose or use that information. Because of the confidential relation or the impropriety of the means of discovery, he may be compelled to go to other sources for the information. As stated in Comment a, even the rule stated in this Section rests upon abuse of confidence or impropriety in learning the secret. Such abuse or impropriety may exist also where the information is not a trade secret and may be equally a basis for liability. We do not regard this comment as authority for appellees contention for several reasons. First § 757 provides for liability only if the trade secret is secret. Second, appel-lee’s quote from comment b conspicuously omits the next sentence: “The rules relating to the liability for duties arising from confidential relationships generally are not within the scope of the Restatement of this Subject.” (emphasis supplied) Thus, what ap-pellee quotes as a Restatement Rule is not a rule at all — it is merely a statement that a duty under the stated facts may arise, but that the subject is not covered by the section. Third, earlier on in comment 6, from which appellee’s quote is taken, the comment plainly requires that “The subject matter of a trade secret must be secret.” Fourth, in comment m to § 757, it is stated that “The actor is subject to liability under this clause only if the information is secret.” Finally, we are not directed to any case, and our own research has not revealed any, where the quoted portion of comment b has been adopted or even quoted. Thus we reject appellee’s argument that the Restatement of Torts provides a basis for a cause of action for misappropriation of confidential information that is not secret. Next, appellee argues that “Texas courts have recognized liability for misuse of confidential information in addition to liability for misuse of trade secrets,” citing DeSantis v. Wackenhut Corp., 793 S.W.2d 670 (Tex.1990), cert. denied, 498 U.S. 1048, 111 S.Ct. 755, 112 L.Ed.2d 775 (1991). To support it’s statement, appellee quotes one sentence from the case: “Examples of legitimate, protectable interests include business goodwill, trade secrets, and other confidential or proprietary information.” DeSantis involved the breach of an employment contract which included a covenant not to compete. The quoted sentence was taken from that portion of the court’s opinion discussing the three criteria necessary for a covenant not to compete to not be in reasonable restraint of trade. The second of those criteria is that the restraint created by the agreement must not be greater than necessary “to protect the promisee’s legitimate interest.” The court then gave examples of legitimate, protectable interests as “business goodwill, trade secrets, and other confidential or proprietary information.” at p. 682. And, as the court stated later in the opinion: “Again, while confidential information may he protected by an agreement not to compete, Wackenhut has failed to show that it needed such protection.” (emphasis supplied). Thus, the ease is not authority to support appellee’s cause of action for misapplication of confidential information. Finally, appellee contends that K & G Oil Tool and Serv. Co. v. G & G Fishing Tool Serv. Co., 314 S.W.2d 782 (Tex.1958) and Hyde Corporation v. Huffines, 314 S.W.2d 763, cert. denied, 358 U.S. 898, 79 S.Ct. 223, 3 L.Ed.2d 148 (1958) support a cause of action for misapplication of confidential information. The holding in each ease was best explained by the supreme court in it’s subsequent opinion, Luccous v. J.C. Kinley Co., 376 S.W.2d 336, 339 (Tex.1964): In Hyde Corporation v. Huffines, this court held the defendant, a licensee of the plaintiff, should be perpetually enjoined from manufacturing or selling any device made substantially in accordance with any feature of an invention patented by plaintiff. The defendant, as a result of a confidential relationship, had gained knowledge of the plaintiffs invention prior to its being patented, while it was still a trade secret. The defendant abused this confidential relationship, and improperly used the information gained, (emphasis original) Inasmuch as the defendant had learned the secrets of the plaintiffs invention in confidence, and improperly disclosed and used them before the patent issued, it was held that the defendant should be enjoined from using that knowledge to prevent his obtaining “a marketing advantage or head start as compared to the patentee or any manufacturer or processor licensed by him after the issuance of the patent.” In K & G Oil Tool & Service Co. v. G & G Fishing Tool Service, as in the Hyde ease, the defendant had gained knowledge of the plaintiffs invention prior to its being patented, while it was still a trade secret. ... Under the terms of a licensing agreement, the defendant specifically contracted that during the time it handled the tool in question, no one would disassemble said tool. It was mutually understood that the purpose of such agreement was to guard against anyone determining the internal construction of the tool involved. Notwithstanding this agreement, defendant did disassemble the tool, examined its interior construction and, using the information thus acquired, began making tools substantially in accordance with those of plaintiff. This court held that plaintiff was not deprived of his cause of action for defendant’s breach of confidence simply because some of plaintiffs secrets were later disclosed by the issuance of a patent. Thus, in each of the cases, the defendant, as a result of a confidential relationship, gained knowledge of a trade secret while it was still secret — i.e. prior to the issuance of a patent. We do not discern how either case can be argued to support a cause of action for misappropriation of confidential information that is not secret. Consequently, we do not find any of the reasoning of Serv-Tech to support a common law cause of action for misappropriation of confidential information. The three appellants, on the other hand, contend there is no cause of action for misappropriation of non-secret confidential information, and they cite a number of cases which they assert support such position. From all the eases we have been able to find, it appears to be well settled that in order to be entitled to common-law protection, a trade secret must be secret. Wissman v. Boucher, 240 S.W.2d 278, 280 (Tex.1951); Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933, 936 (Tex.Civ.App.— Houston [1st Dist.] 1978, no writ); Thermodics, Inc. v. BAT-JAC Tool Company, Inc., 541 S.W.2d 255, 260 (Tex.Civ.App.—Houston [1st Dist.] 1976, no writ); Lamons Metal Gasket Co. v. Traylor, 361 S.W.2d 211, 213 (Tex.Civ.App.—Houston [14th Dist.] 1962, writ ref'd n.r.e.). Appellee apparently has no dispute with this established principle and, as to the trade secrets issue quoted above, the trial court correctly instructed the jury that the matter must be secret. The definition of “trade secrets” is very broad and loose language used by some courts have appeared to lessen the requirement of secrecy in some instances. On March 12, 1958, the supreme court decided two trade secret cases: K & G Oil Tool & Service Co., Inc. v. G & G Fishing Tool Service, 314 S.W.2d 782 (Tex.1958) and Hyde Corporation v. Huffines, 314 S.W.2d 763 (Tex.1958). These cases are the bedrock for trade secret causes of action in Texas. As above pointed out, each of the cases involved an actual trade secret that was eventually patented. However, prior to the issuance of letters patent the defendant in each of the cases, as a result of a confidential relationship, learned the details of the trade secret and appropriated the secret to its own use. In Hyde, the court stated: If these details as to construction were received by Hyde Corporation in confidence and that company later attempted to exploit them to Huffines’ injury through a breach of confidence, an action lies and it matters not whether the suit be designated as a “trade secret” case or as a suit for breach of confidence, which is a term commonly used by Huffines in describing his claim for relief, (emphasis added) 314 S.W.2d at 777. And, in K & G Oil Tool, the court stated: According to the jury’s findings, which are not attached, G & G did not learn how to make the Kirby tool or a device similar thereto by observing it in an assembled or unbroken condition but learned of its internal proportions, qualities and mechanisms by taking it apart despite an agreement that it would not do so. We have here the violation of a confidence and the breach of a contract, (emphasis added) 314 S.W.2d at 787. The supreme court’s “breach” or “violation” of confidence terminology has been changed by some of the courts of appeal to “confidential information.” In Welex Jet Services, Inc. v. Owen, 325 S.W.2d 856 (Tex.Civ.App.—Fort Worth 1959, writ ref'd n.r.e.), the Fort Worth court relying upon these cases, changed “violation of a confidence” terminology to “Confidential information secured by reason of fiduciary relationships.” (emphasis supplied). Even with this more broadly stated rule, however, the court still dented the requested relief because the alleged “confidential information” was “not adaptations of appellant’s secrets.” In the trial court appellee argued that Jeter v. Associated Rack Corp., 607 S.W.2d 272 (Tex.Civ.App.—Texarkana 1980, writ ref'd n.r.e.) supported a cause of action for misappropriation of business information. While the recitation of the facts indicates the case was tried on the theory of misappropriation by the plant manager and assistant plant manager of “customer fists, pricing cards, product sketches and sample contact tips, a customized part” of the product, the case was submitted to the jury on only one liability issue: Do you find from a preponderance of the evidence that defendants, by using any of the properties obtained from the premises of plaintiff, engaged in a conspiracy to divert and take away the customers of plaintiff? The charge did not refer to trade secrets or confidential information. It did not even refer to any item allegedly misappropriated. The court of appeals, pointing out that the question contained “several of the elements necessary to submit to the jury the issue of whether the appellants conspired to and actually did wrongfully misappropriate the confidential business property of Associated Rack,” stated that the failure of the issue to require the jury to find the information was “confidential” was not fatal because there was no objection; therefore there was a deemed finding in support of the judgment. The case adds nothing, however, because the deemed finding could as well be that the business property was secret as well as that it was confidential. We simply cannot regard Jeter as being authoritative, one way or the other. In Richardson v. Andrews, 718 S.W.2d 833 (Tex.App.—Houston [14th Dist.] 1986, no writ) this court held that because of the conditional language of § 757 in defining what a trade secret may be, trade secret status does not automatically attach to the listed examples of what may be trade secrets. It is therefore the burden of the party claiming secrecy status to prove secrecy. In American Precision Vibrator Co. v. National Air Vibrator Co., 764 S.W.2d 274 (Tex.App.—Houston [1st Dist.] 1988, no writ) the trial court had inquired by a specific question whether the “customer cards and blue prints constituted trade secrets.” In passing upon the sufficiency of the evidence the court stated that “Before something can be termed a ‘trade secret,’ these must be a substantial element of secrecy.” In Dannenbaum v. Brummerhop, 840 S.W.2d 624 (Tex.App.—Houston [14th Dist.] 1992, writ denied), one of the causes of action alleged was wrongful appropriation of confidential information. In submitting that cause of action, the trial court instructed the jury: You are instructed that confidential information means any process, information or compilation of information, formula, pattern, or device which is used in one’s business and which gives an opportunity to obtain an advantage over competitors who do not know of or use it. In order to be confidential there must be a substantial element of secrecy; however, secrecy need not be absolute. Matters of public knowledge or of general knowledge in an industry cannot be appropriated as confidential. The personal efficiency, inventiveness, skills and experience which an employee develops through his work belong to him and not his former employer, (emphasis supplied) While each of these cases, Welex, Jet-er, Richardson, American Precision and Dannenbaum, refer to the basic cause of action as involving “confidential information,” all the cases relied upon Hyde and/or K & G Oil Tool. And each of the eases required that the information be secret or at least substantially secret. Here, however, the trial court neither instructed the jury that the “confidential information” must be secret or substantially secret nor did he submit an inquiry for the jury to make such a finding. From all these cases we conclude that there is no cause of action for misappropriation of confidential information that is not either secret or, at least substantially secret. . Since all three appellants objected to the failure of the court to instruct the jury that the confidential information must be secret, a deemed finding to supply this essential element cannot be made to support the judgment. State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235 (Tex.1992); S & S’s second and fifth points of error are sustained; OMSI’s second point of error is sustained and Ohmstede’s second point of error is sustained. All three appellants assign points of error to the manner in which the trial court submitted the damage issue. Conditioned upon an affirmative answer to Questions 1, 4, 7 or 10, Question inquired: What sum of money, if paid now in cash,would fairly and reasonably compensate, Serv-Tech for its damages, if any, resulting from the conduct in question? Consider past and future lost profits, if any, which in reasonable probability Serv-Tech will sustain. Do not include any amount for interest on past damages, if any. Answer in dollars and cents, if any. Answer: $12,500,000.00 All three appellants objected to the all-inclusive submission of the damage issue for various reasons, including: failure to separate damages issues on each of the liability claims; since different “defendants are accused of misappropriating, through different means, different trade secrets and using them to different degrees,” the unsegregated submission denies the defendants “the right to make a proper presentation on appeal” and “to challenge any adverse finding of damages”; “to improperly make the defendants jointly and severally liable for what the jury might find to be discrete torts or a breach of contract, each of which has a different measure, in the jury’s mind, of damages;” the issue offers no guidance as to what the appropriate measure of damages is; the issue does not separate past and future damages; the issue assumes that the defendants are going to continue to harm the plaintiff and to continue to impose damages; the issue does not “separately submit questions of past lost profits and future lost profits, and “the absence of an instruction on what future loss of profits means so as to distinguish that which the plaintiff seeks in this ease as distinguished from an extrapolation of the present loss at the time of trial.” The trial judge overruled all objections. “Damages must be measured by a legal standard and that standard must be used to guide the fact finder in determining what sum would compensate the injured party.” Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87 (Tex.1973). It is the duty of the plaintiff to submit separate jury findings on damages. Lovelace v. Sabine Consolidated, Inc., 733 S.W.2d 648, 655 (Tex.App.—Houston [14th Dist.] 1987, writ denied). It is rather ironic that appellee begins its discussion of this point in its reply brief to Ohmstede’s and OMSI’s brief, with the statement that the appellants basically take “a shotgun approach to attacking the damage question submitted by the trial court and the accompanying finding by the jury.” It appears that it is more appropriate to make this observation about the manner of appel-lee’s submission of the issue. It appears that the shotgun submission of the damage question was designed to prohibit appellants from attacking on appeal the damage finding. Appellee’s only argument in support of the damage question as submitted is: This is not a case in which two defendants each caused a separate injury, such as where one defendant shot the plaintiff in the arm and another defendant shot the plaintiff in the leg. Rather, this is a case in which one defendant furnished the gun, the other defendant furnished the bullets, and the plaintiff was shot as a result of the combined conduct. There is nothing to segregate. Serv-Tech lost the jobs because OMSI went into business, and OMSI went into is (sic) business because it gained access to Serv-Tech’s type equipment. Thus, Stewart and Stevenson caused the whole loss. We note that appellee does not refer to Ohmstede in his scenario. The only case authority appellee cites in support of it’s proposition is Landers v. East Texas Salt Disposal Co., 248 S.W.2d 731 (Tex.1952). In that case two pipelines, one owned by one company and the other by another company, ruptured. Each ruptured line deposited large quantities of salt water and oil onto the plaintiffs property and into his lake, killing his fish and otherwise causing damage. The landowner filed suit against both companies for injunctive relief and damages. The trial court sustained pleas in abatement, dividing the case into three causes: the plea for in-junctive relief, and the damage claim against each pipeline company. The supreme court stated: Where the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and the injured party may proceed to judgment against any one separately or against all in one suit. The indivisible injury there, was the injury to the lake and fish. The court stated: There is, of course, no joint liability for damages for the loss of the trees and grass killed by the salt water escaping from the pipe line owned by East Texas Salt Water Disposal Company before such water entered the lake. It was not a misjoinder, however, to include this as an item of recovery sought in the suit. We cannot agree that based upon the facts of this case that appellee suffered an indivisible injury as a result of the conduct of the three appellants. This is based upon several facts. First, looking to the pleadings and the jury responses to questions, only S & S was the subject of appellee’s breach of contract action, and in answer to the first question the jury found S & S breached the contract. There was not even a breach of contract action alleged against Ohmstede and OMSI. While a cause of action was alleged against all three appellants for improper use or disclosure of appellee’s trade secret and for conspiracy to do so, the jury failed to find 5 & S had either improperly used a trade secret of appellee or that it had conspired to do so, although finding Ohmstede and OMSI did do so. As to the alleged cause of action for improper use or disclosure of confidential information and the conspiracy to do so, the jury found all three appellants liable, but we have already held above there is no such cause of action. 'While the jury found that S 6 S breached the confidentiality agreement (the contract), they failed to find that S & S improperly used or disclosed the information allegedly protected by the secrecy agreement. This finding and the failure to find is incongruous and, standing alone, reflects the error of not separating the damage question by issue and defendant. Second, looking to the evidence, we find that the damage question not only improperly combined past and future damages but also combined several damage theories. Ap-pellee’s theories of liability included: (1) past profits that it claimed to have lost because some hydroblasting jobs were awarded to OMSI; (2) reduced profit margins that it claimed to have lost on its own hydroblasting work because of competition from OMSI; (3) future profits that it concluded it would lose on hydroblasting work to OMSI between the time of trial and the year 2000; (4) reduced profit margins on its own hydroblasting work because of competition from OMSI for the same period; (5) future profits for “add-on” hydroblasting work that it might lose on hydroblasting jobs that OMSI might secure for the same period and (6) lost profits for non-hydroblasting work, or “incremental work,” that it might lose to OMSI during the same period. Serv-Tech’s expert witness testified that these separate elements combined to produce total damages of at least 29 million dollars. However, without any guiding standard, the jury found damages of only $12,500,000. While we acknowledge it is not necessary to do so, we do point out that none of the parties are able to calculate this result from the individual elements as calculated by appellee’s expert. We believe this evidence, in light of the objections made, required the damage issue to be, at the very minimum, separated as to defendant, cause of action and, past and future damages. Finally, appellee contended that it had reached an agreement in principle to license its technology and equipment to a Netherlands entity. It contended, however, that S & S, in violation of its confidentiality agreement, cut it out of the deal by selling equipment directly to the Netherlands entity. Serv-Tech claimed that these actions delayed its entry into the European market by a year, thereby causing it to lose revenues. There was no evidence, however, that OMSI or Ohmstede had any connection whatsoever to this transaction. Yet, the jury was authorized to take this evidence into consideration of damages, and, from all we know, assess damages against OMSI and Ohmstede for actions for which neither was liable. Again, this evidence illustrates why the trial court should have responded to appellants’ objections to the all-inclusive submission of the damage question. In Wingate v. Hajdik, 795 S.W.2d 717 (Tex.1990), Wingate sued Hajdik on two causes of action — one for misappropriation of corporate assets and the other for breach of fiduciary duty to Wingate as a business partner. In a trial to the court, the court awarded Wingate a single sum of actual damages predicated upon multiple liability findings. The court of appeals reversed and the supreme court agreed, holding that the trial court erred in including in the damages awarded amounts which only the corporation was entitled to recover. It was therefore necessary to reverse the entire judgment because the plaintiffs award of a single sum of damages was predicated upon multiple liability findings — one of which he was not entitled to recover on. The converse of that situation is presented by this case — the trial court authorized and the jury found a single sum of damages against three defendants predicated upon multiple liability findings where one of the defendants was not shown to be liable on one of the liability findings. In Dawson v. Garcia, 666 S.W.2d 254 (Tex.App.—Dallas 1984, no writ) the trial court submitted a single damage issue which erroneously mixed recoverable and nonrecoverable damages. Appellee’s contention on appeal was that appellant’s objection that it “would be impossible to divide with regard to what portion relates to nonrecoverable items and damage” was insufficient. The court of appeals reversed, holding the objection was sufficient and the single submission was error. In Lucas v. Nesbitt, 658 S.W.2d 883 (Tex.App.—Corpus Christi 1983, writ ref'd n.r.e.) the trial court submitted issues to the jury on negligence and violations of the DTPA — all of which were answered favorably to the plaintiff. In submitting the damage issue, the trial court inquired what sum of money would reasonable compensate the plaintiff “for the financial loss, if any, sustained by [the plaintiff] resulting from the acts of’ the defendant. The court stated: In answering such issue, the jury was allowed to consider the evidence of six separate charges of negligence and at least one of two of the allegations that constituted a violation of the DTPA. The jury was not asked to consider the damages resulting from “any one of the negligent acts of appellant” nor was the jury asked to find the damages from “either or both of the alleged violations of the DTPA.” Therefore, the jury’s finding of $83,000.00 “resulting from the acts of” appellant included the damages for all of the causes of action. We have no way of separating the damages for actions of negligence and those concerning the violations of the DTPA. The judgment does not comport with the jury’s verdict on the damages. To correctly award $83,000.00 as compensation for appellant’s negligence, the trial court would have had to assume that the jury attributed no damages to the DTPA violation. This the trial court did not do. To correctly award three times $83,000.00 under the DTPA, the court would have had to assume a zero finding on damages for negligence. This the trial court could not have done, (emphasis original) In Chrysler Corporation v. McMorries, 657 S.W.2d 858 (Tex.App.—Fort Worth 1983, no writ) the trial court submitted a single damage issue inquiring “what sum of money ... would reasonable compensate [plaintiff] for his actual damages, if any.” In reversing, because the instruction was insufficient under the facts of the case, the court stated: There are no limitations placed upon what the jury may consider in determining the damages. Given this charge, the jury could have looked to anything at all, including injuries which may not have been caused by the appellant’s actions. Because of this danger, the Texas courts have insisted that the trial court limit the jury’s consideration to the specific facts that are properly a part of the damages allowable. Consequently, the trial court’s judgment must be reversed and remanded. We conclude our discussion by reference to Wilgus v. Bond, 730 S.W.2d 670 (Tex.1987). In that case the trial court submitted two damage issues that failed to relate elements of damage to specific theories of recovery. The court of appeals reversed for this reason. The supreme court reversed the court of appeals stating “Although we agree that damages must be measured by a legal standard which serves to guide the jury in determining compensation for the injured party, the Bonds waived any error in the submission by failure to properly object.” In our case, appellants properly objected to the all-inclusive submission of the damage issue. We sustain S & S’s eleventh point of error, OMSI’s fourth point of error and Ohmstede’s sixth point of error. Related to the damage issue in S & S’s point of error twelve complaining of attorney’s fees. Over proper objections by S & S, the trial court submitted Question 19 which inquired: What is a reasonable fee for the necessary services of Serv-Tech’s attorneys in this case, stated as a percentage of Serv-Tech’s recovery? Answer by stating a percentage. ANSWER: 40% Based upon this answer the trial court awarded attorney’s fees against S & S for $5,000,000 (40% of the total recovery of $12,-500,000). The trial judge provided in the judgment: Under the verdict, Plaintiff has a right to recovery from Stewart & Stevenson Services, Inc. for breach of contract and/or for tort. The greater recovery for Plaintiff would be for breach of contract because it allows for attorney fees. Without waiving Plaintiff’s right to recover against Stewart & Stevenson Services, Inc. for tort, the Court grants recovery against Stewart & Stevenson Services, Inc. primarily for breach of contract. A party may recover attorney’s fees only if permitted by contract or by statute. Moody v. EMC Services, Inc., 828 S.W.2d 237, 246 (Tex.App.—Houston [14th Dist.] 1992, writ denied). If the case involves claims for which attorney’s fees are recoverable and claims for which attorney’s fees are not recoverable, the authorized fees must be segregated from the fees connected to the other claims. Id. In its brief, appellee does not even mention the above unorthodox provision of the judgment and does not attempt to justify the award of attorney’s fees under its provision. Rather, appellee argues that “in this case the breach of contract as well as the tort occurred simultaneously and in concert and together produced the damages.” Under such circumstances, appellee argues that this court’s decision in Gill Savings Association v. Chair King, Inc., 783 S.W.2d 674 (Tex.App.—Houston [14th Dist.] 1989, aff'd in part and modified in part), 797 S.W.2d 31 (Tex.1990), “is in point.” We disagree. In Gill, the trial was before the court which awarded actual and punitive damages and attorney’s fees in a suit “for fraud, breach of contract and numerous other torts.” The trial judge assessed a sum certain as attorney’s fees which this court and the supreme court held was proper based upon a breach of contract. Here a sura certain for attorney’s fees based upon the breach of contract was not awarded — rather the jury was asked to find, and they did find, a percentage of the total recovery as “a reasonable fee for the necessary services” of the attorneys. This was improper because it permitted appellee to recover attorney’s fees on claims for which attorney’s fees are not recoverable. See: Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991); Matthews v. Candlewood Builders, Inc., 685 S.W.2d 649, 650 (Tex.1985). We sustain S & S’s twelfth point of error. In OMSI’s first point of error and Ohms-tede’s third point of error, both appellants contend that “neither law nor fact supports the trade secret misappropriation against” either of them. “The basis of the trade secret case is the ‘breach of contract or wrongful disregard of confidential relationships.’ ” K & G Oil Tool & Service Co. v. G & G Fishing Tool Service Co., 314 S.W.2d 782, 787 (Tex.1958); Becher v. Contoure Laboratories, 279 U.S. 388, 49 S.Ct. 356, 357, 73 L.Ed. 752 (1929); E.I. DuPont de Nemours Powder Co. v. Masland, 244 U.S. 100, 37 S.Ct. 575, 61 L.Ed. 1016 (1917). The only contract involved was between S & S and appellee. While the jury found S & S breached the contract, it failed to find that S & S improperly used or disclosed trade secrets of appellee and further failed to find that S & S conspired to improperly use or disclose trade secrets of appellee. There was no confidential relationship between appellee and Ohmstede or OMSI. This being so, neither Ohmstede nor OMSI are directly ha-ble to appellee under the jury finding that both improperly used or disclosed and conspired to improperly use or disclose trade secrets of appellee. Appellee does not argue to the contrary. Appellee contends however, that both Ohmstede and OMSI are hable because the ex-employees of Serv-Tech, “who formed the management nucleus of OMSI,” obtained information about Serv-Tech’s trade secrets as a result of a confidential relationship while they were employees of Serv-Tech. Atlas Bradford Co. v. Tuboscope Co., 378 S.W.2d 147 (Tex.Civ.App.—Waco 1964, no writ) seems to be contrary to appellee’s contention, but we question its soundness. In that case, Unger, an employee of Tuboscope learned its trade secrets. Subsequently a patent was issued covering those secrets. After Unger left Tuboscope’s employment, Unger disclosed the trade secrets, which had already been patented, to Atlas. The trial court (1) permanently enjoined the use and disclosure of the trade secrets by Unger; (2) permanently enjoined the use and disclosure of the trade secrets by Atlas; and (3) awarded damages against Atlas. The court of appeals reversed and rendered judgment in favor of Atlas on the basis that the pubhc disclosure of the patents made the information pubhc, insofar as Atlas was concerned, and Atlas was entitled to use the information free of restraint on the ground that the information constituted a trade secret. It appears to us that this language does not take into consideration that the test is not whether one could have gained the knowledge lawfully, but how it was gained. See: Hyde Corporation at 778. But, whether the language of Atlas Bradford is overbroad, the case is not determinative of the issue presented by appellants Ohmstede and OMSI. Both contend there is no evidence that the former Serv-Tech employees who worked at OMSI or S & S disclosed Serv-Tech secrets in violation of a confidential relationship. In accordance with the RESTATEMENT (First) OF TORTS, § 757, the trial judge instructed the jury that “improper use or disclosure” means one who discloses or uses another’s trade secret and (a) he discovered the secret by improper means, or (b) his disclosure or use constitutes a breach of confidence reposed in him by the other in disclosing the secret to him, or (c) he learned the secret from a third person with notice of the facts that it was a secret and that the third person discovered it by improper means or that the third person’s disclosure of it was otherwise a breach of his duty to the other, or (d) he learned the secret with notice of the facts that it was a secret and that its disclosure was made to him by mistake. The only conceivable theory under which Ohmstede and OMSI could be liable is under (b); i.e. the liability findings against OMSI and Ohmstede can result only from the premise that OMSI received Serv-Tech’s alleged trade secrets from Wetzel, Boisture, Livingston and Jeffrey, former employees who joined OMSI. Appellants contend that the jury’s adverse finding “completely disregarded the clear, uneontradieted testimony” of the former employees and officials of OMSI and “the finding can result only from legally incorrect conclusions about the relationship between the former employees and OMSI or inferences piled upon inferences.” This is a challenge to the legal sufficiency of the evidence, and we do not understand ap-pellee to contend otherwise. We are not particularly impressed, with the manner in which either side has briefed this issue. Of course, we realize that the issue is complicated many fold by the manner in which the case was tried. As set forth, appellee alleged that the appellants had misappropriated not only trade secrets (which would be included within the accepted Restatement definition) but that they had misappropriated various other items of “confidential information.” Appellee’s theory at trial was, in the words of Serv-Tech’s Dick Krajicek, that OMSI took “our ideas, our concepts, our equipment, our planning, our people and our customers.” And, as above set forth, the case was submitted to the jury not only on a proper theory of misappropriation of a trade secret but also on an improper theory of misappropriation of confidential information. Further complicating the issue presente® is the fact that based upon a reading of this total record, it appears that the only conceivable explanation for the failure of the jury to find that S & S had not misappropriated Serv-Tech’s “trade secret” was that the Fast Clean machine invention of Serv-Tech was not a trade secret, or at least the cleaning boom arm, which was not copied, was the only item protected by the secrecy agreement. Yet the jury did find OMSI and Ohmstede did misappropriate trade secrets. It seems the only conceivable explanation for this result was that the jury found that OMSI and Ohmstede had misappropriated items, other than Serv-Tech’s Fast Clean machine, which were trade secrets. At least as to this latter theory, appellee seems to agree. In appellee’s response brief, it begins its argument on this point, as follows: In answer to Question No. 4, the jury found that OMSI [and Ohmstede] engaged in an improper use or disclosure of a trade secret of Serv-Tech that was a proximate cause of damage to Serv-Tech. These trade secrets consisted of two different types of information. The first concerned the FAST CLEAN equipment. Wetzel, a Serv-Tech employee hired by OMSI, had worked with Stewart & Stevenson in perfecting the Serv-Tech machinery. Wetzel participated in the “debugging” of the FAST CLEAN equipment after it was delivered. The debugging efforts resulted in negative “know-how” that was in and of itself valuable information identified by Serv-Tech, that was entitled to protection as a trade secret. The second group of trade secrets ... information concerned the bidding system and other business information. The evidence clearly proved that OMSI was the beneficiary of business information purloined by Wetzel and his colleagues. The heat exchanger data sheets, man-hour standards, job tracking system, employee lists, vendor list, bid programs, bid forms and many other categories of information virtually mirrored Serv-Tech’s. This information was proprietary and confidential in nature. It is in the context of this “second group of trade secrets” that we discuss the issue presented. When legal insufficiency of the evidence is challenged, this court must consider only the evidence and inferences that support the challenged findings and will disregard all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988). If we find any probative evidence that supports the jury finding, the point will be overruled. Anthony Pools v. Charles & David, Inc., 797 S.W.2d 666, 675 (Tex.App.—Houston [14th Dist.] 1990, writ denied). If, however, a search of the record discloses no probative evidence, then the court will sustain the point and reverse and render judgment. National Life and Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909 (Tex.1969). Following this test, we detail the evidence which would support he jury finding concerning the misappropriation of, among other things; Serv-Tech’s bidding system and man-hour standards: 1. Bob Wetzel joined Serv-Tech in 1986 and was employed in responsible positions until he departed the company in 1989. 2. Wetzel was the driving force in forming OMSI in 1989, a company to compete with Serv-Tech in the heat exchanger cleaning business, and was its president. B. Dick Krajicek testified that when Wet-zel joined Serv-Tech he did not know how to bid heat exchanger jobs; Wetzel learned the bidding system while employed by Serv-Tech and he “definitely” helped refine it; Wetzel realized that the forms for the bidding system were valuable to the company and began the practice of stamping “confidential” on all the forms and both he (Krajicek) and Wetzel considered the bidding process secret. 4. Mike Krajicek, a Serv-Tech officer, testified that while Wetzel was employed by Serv-Tech he (Wetzel) worked extensively with the bidding process; that if Wetzel had not worked for Serv-Tech for 2 or 3 years he would not have had knowledge of “our bidding system”; that I have learned from customers that OMSI’s bidding system “is remarkably similar, both in the forms that they use and whats inside that form the content” to ours; that the bidding form is not the “heartbeat” of our system, but I have not seen any other competitors [other than OMSI] use this type form; that Serv-Tech “strived to keep the bidding system confidential; that Wetzel updated Serv-Tech’s man power requirements (the basis used for estimating man-hours on a job) and had very intimate knowledge of our man-hour standards; Wetzel helped design the estimating form used for estimating jobs; Wetzel prepared the black book that went to the job superintendent to keep the job on target. 5. John Slack, a Serv-Tech employee, testified that he worked with Wetzel while at Serv-Tech; that when Wetzel left Serv-Tech he had an intimate knowledge of our bidding system; the bidding system was a critical element of our business and as such was considered “very confidential” and that Wetzel would have known the bidding form was confidential because it was imprinted “Confidential, All Rights Reserved, Serv-Tech.” 6. Wetzel testified he created many of Serv-Teeh’s spreadsheets on his computer at home. 7. Donald Polk testified he had worked for Serv-Tech and was later hired by Wet-zel to work for OMSI; that Wetzel gave him the document concerning the man-hour standards that he was to use in bidding jobs; that he recognized OMSI’s bid system “as very similar” to Serv-Tech’s; that later after a lawsuit was filed, Wetzel instructed him and Ron Sinks to change the forms because “they were too close to Serv-Tech’s”; that they knew about what Serv-T