Ginn v. NCI Building Systems, Inc. (472 S.W.3d 802, 2015)

OPINION

Terry Jennings, Justice

Appellants/cross-appellees, Kelly R. Ginn, Green-Span Profiles, L.P., Green-Span Management, L.L.C., Green-Span Enterprises, Inc., and BKG Investments, L.L.C. (collectively, “Ginn”), challenge the trial court’s judgment, entered after a jury trial, awarding appellee/cross-appellant, NCI Building Systems, Inc. (“NCI”), damages in NCI’s suit against Ginn for fraud, breach of fiduciary duty, and unjust enrichment. In thirteen issues, Ginn contends that insufficient evidence supports the jury’s findings in favor of NCI on its claims for fraud, breach of fiduciary duty, and unjust enrichment and the trial court erred in charging the jury, disregarding the jury’s finding of zero damages on NCI’s stock claim, not disregarding the jury’s finding that he “did not prove that h[is] [employment] was terminated for cause,” granting rescission of the parties’ contract, awarding NCI restitution damages, and not awarding him his attorney’s fees.

In its cross-appeal, NCI, in two issues, contends that the trial court erred in not awarding it attorney’s fees and granting Ginn partial summary judgment on its breach-of-contract claims.

We affirm.

Background

In its fifth amended petition, NCI, “a publicly-traded company ... headquartered in Houston, Texas,” alleged that “[i]t designs, manufactures, markets, and sells metal building systems and eomponents[, including insulated metal panels,] that are used in the construction of metal buildings.” Ginn worked for NCI for “over 20 years,” serving in the later years of his employment as its executive vice president of operations. “In this role, Ginn, among other things, was closely involved in NCI’s development of new business [and marketing] strategies to expand its insulated metal panel products lines,”- and he was “tasked with locating and purchasing new equipment that would allow NCI to make insulated metal panels faster and with less labor.” By virtue of his position, Ginn received NCI’s confidential and proprietary information, including “sales information, pricing data, ... financial records, ... [and] customer lists.”

During Ginn’s employment with NCI, it “periodically awarded [him] unvested restricted stock,” and the Restricted Stock Agreements, signed by Ginn in conjunction with the awards, contained non-competition, non-solicitation, and nondisclosure provisions: According to NCI, when Ginn accepted the unvested restricted stock, “he agreed he would not, for five years, engage in a competing business within 250 miles of NCI’s manufacturing facilities^] ... solicit NCI’s employees!,] ... [or] call upon or solicit NCI’s customers or vendors.” He also agreed to not disclose or use any of NCI’s “confidential” or “proprietary information” or “trade secrets.”

On March 27, 2008, Ginn resigned from NCI, effective March 31, 2008, and he and NCI negotiated and entered into a “Separation Agreement.” NCI agreed to “retain Ginn as a consultant for one year,” from March 31, 2008 through March 31, 2009, and continue to pay him his normal salary, plus medical benefits. In return, Ginn agreed to “five-year non-compete and non-solicitation agreements” and a nondisclosure agreement. And, “[a]s consideration for the Separation Agreement,” NCI “agreed to give Ginn immediate vesting of all of his [unvested] restricted stock,” which was valued at $1,582,167.

NCI further alleged that Ginn, prior to signing the Separation Agreement, and without NCI’s knowledge, “accessed and copied a large amount of highly confidential [company] information” to an external hard drive. “The information downloaded by Ginn would [have] be[en] valuable .[to] a competitor of NCI,” and Ginn “had no reason to copy this information, unless he intended, from the outset[,] to violate the terms of [the] Separation Agreement.”

NCI also alleged that during the time that .Girin served as a consultant, he developed a business plan for “a new competing business” and created several business entities, including Green-Span Profiles, L.P., Green-Span Management, L.L.C., Green Span Enterprises, Inc., and BKG Investments, L.L.C. (collectively, “Green-Span”). Ginn created Green-Span “to manufacture, market, and sell insulated metal panels,” and as asserted by NCI, he solicited NCI employees, customers, and vendors, “us[ing] and diselos[ing] NCI’s confidential information” that he had retained following his resignation.

NCI brought claims against Ginn for breach of contract, fraud, breach of fiduciary duty,.and unjust enrichment, seeking damages, injunctive relief, and attorney’s fees. Ginn counterclaimed, seeking attorney’s fees and alleging that NCI “knew at the time that [the Separation Agreement] was executed that it did not contain limitations as to time, geographical area and scope of activity that were reasonable, and the limitations in th[e] [Separation] Agreement imposed a greater restraint than necessary to protect the goodwill or other business ’ interest of [NCI].”

Temporary Injunction

NCI filed an application for temporary injunction, seeking to enjoin Ginn from competing with NCI, soliciting NCI customers and employees, and using NCI’s confidential information. On September 15, 2009, the trial court denied NCI’s application to the extent that it sought enforcement of the Separation Agreement’s non-competition provision. But, it granted NCI’s request for a temporary injunction to the extent that it sought to enjoin Ginn from soliciting NCI employees and one of NCI’s vendors, PUMA. The trial court also enjoined Ginn from using or disclosing any of NCI’s confidential information.

Summary Judgment Motion

Prior to trial, Ginn sought summary judgment on several of NCI’s claims. In regard to NCI’s breach-of-contract claims, Ginn argued that the non-competition and non-solicitation provisions in the Separation Agreement were unenforceable as a matter of law because NCI did not provide him consideration in the form of new confidential information or trade secrets after its execution. He asserted that the financial incentives that NCI provided to him, pursuant to the Separation Agreement, did not constitute valid consideration for the non-competition and nonsolicitation provisions. Ginn further argued that the non-competition and nonsolicitation provisions were unenforceable because they were “[o]verbroad in the scope of activities they s[ought] to restraint,] • • • [u]nreasonable in duration[,] ... [and] [Unreasonable in the geographic scope they s[ought] to cover.” He also argued that because NCI was seeking to enforce provisions of the Separation Agreement,'which were unenforceable, NCI was unable to recover the attorney’s fees that it incurred in pursuing enforcement.

The trial court partially granted Ginn summary judgment, concluding that the non-competition provision and the no'n-solicitation provision, to the extent that it prohibited the solicitation of NCI customers, were “unenforceable for lack of consideration.” Accordingly, the trial court dismissed NCI’s breach-of-contract claims, including its claim for injunctive relief, to the extent that they were based on Ginn’s alleged breaches of the Separation Agreement’s non-competition provision and non-solicitation provision, as far as it related to NCI customers. Following the trial court’s ruling, NCI nonsuited its remaining breachrof-contract claims.

Trial

At trial, Ginn testified that in 1985, he began working full-time for Metal Building Components, Inc. (“MBCI”), a company co-founded by his father, A.R. Ginn. MBCI manufactured and supplied components used in the construction of metal buildings, and A.R. Ginn served as the company’s president. In 1998, MBCI merged with ÑCI, and the new company retained the name NCI. Following the merger, Ginn remained in his previously held position of vice president of manufacturing until 2000, when he was promoted to president of the metal components division. In 2003, A.R. Ginn became the chief executive officer (“CEO”) of NCI, and Norm Chambers was hired to serve as NCI’s president and chief operating officer (“COO”).

When A.R. Ginn retired in 2007, Chambers became president and CEO of NCI, and he continued to handle his responsibilities as COO. During this time, per Chambers’ request, Ginn left his position as president of the metal components division “to come over to the corporate office” and work with Chambers. Ginn assumed a new position, executive vice president of operations, and became “active in the insulated panels portion of the company’s business.” At this time, Chambers was considering Ginn, along with others, for the position of COO.

On March 14, 2008, Ginn met with Chambers, who informed him that he had decided to promote Mark Dobbins to COO of ■NCI and “eliminate!)]” Ginn’s “position of executive vice-president.” Chambers explained that “he- had looked around the company and couldn’t find a place” for Ginn. He noted that “it would be in [Ginn’s] best interest to resign” and NCI would “make [his] stock vest immediately” and “enter into á consulting agreement” with Ginn “for some period of time up to a year.” Chambers also noted that NCI would hire “a[n] outplacement firm ... to help ... [Ginn] find a new job.”

Ginn did not argue with Chambers about his decision to promote Dobbins, but he was “very surprised.” “[I]t was clear” to Ginn that he had “no options” and “didn’t have a choice but to leave [NCI].” However, he did not want to resign from NCI, and he did not “voluntarily resign”; rather, according to Ginn, Chambers “térmí-náted [his employment] without cause” during the March 14,2008 meeting.

On March 27, 2008, NCI and Ginn entered into the Separation Agreement, in which Ginn stated that he “desire[d] to resign as an executive officer of the Company .,. including the position of Executive Vice President — Operations,” The Separation Agreement provides, in pertinent part,

1. Resignation from Officer/Director Positions. Ginn agrees to remain employed in his current position in a full-time capacity through the dates specified herein. Effective as of March 31, 2008, Ginn agrees to and hereby resigns each .of his officer positions with the Company and ... each of his director positions.... Ginn shall remain employed in his positions as Executive Vice President — Operations through the Transition Date, and shall resign from such position on that date. “Transition Date,” as used herein, shall mean March 31,2008.

2. Separation from Employment. Following the Transition Date, Ginn hereby agrees to be engaged as a consultant on behalf of the Company during the Advisory Period (as defined below) on ah as-needed basis. Ginn agrees to perform such limited services as shall be requested by the Company and agreed to by Ginn at such times and rates as aré mutually agreeable to Ginn and the Company; provided, however, that Ginn shall not be obligated to perform such services to the extent-such services would interfere with his pursuit of other personal and/or business interests that are not Inconsistent with the terms of this Agreement, and provided, further, that Ginn will work no more than twenty (20) hours per month in his consulting capacity on behalf of the Company— Services required of him may Include, but are not limited to, the following:

a. ... [Sjervices as are reasonably necessary to assist the Company In a transition of his responsibilities as an officer of the Company

b. Respond to ...' any questions posed by or on behalf of the Company regarding any litigation in which the Company ... is then or may bécoiñe involved; and

c. Perform such other consulting services for -the Company .;. as shall be reasonably requested by the Chief Executive Officer ... and that are not materially differ- ' ent from his prior duties and responsibilities _'

Tie “Advisory Period” shall'be the period from the Transition Date through March 31, 2009 (the “Termination Date ”). Unless earlier terminated pursuant to this Agreement, Ginn’s consulting relationship with the Company shall terminate as of the Termination Date.

3. Salary and Benefits. ... Ginn shall be entitled to consideration set forth below during the period beginning on the Effective Date [March 27, 2008] and ending on the Termination Date.,

a. Salary Prior ■ to the Transition Date. From the Effective Date through the Transition Date, Ginn shall continue to receive his base salary—

b: Compensation during the Advisory Period. From March 31, 2008 through March 31, 2009, [Ginn] shall continue to réceive his base salary....

d. Restricted Stock_ AIR Restricted Stock Awards granted to Ginn prior to.December 31, 2007 ■ will fully vest as of March 30, 2008.[]

f. Welfare Benefits. From the Effective Date through the Transition Date, Ginn shall remain eligible to participate in the group health and .medical benefit programs. ... From the Transition Date through the Termination Date, Ginn ... shall remain eligible to participate In the group health and medical benefit programs ....

4. Restrictive Covenants. As a material inducement to the Company to enter into this Agreement, Ginn agrees to the restrictive covenants set forth below:

á. ' Non-Competition. During the Advisory Period and for the period ending five (5) years following the Termination Date, Ginn shall not, directly or indirectly and whether on his own behalf or on behalf of any other person, partnership, association, corporation or other entity, engage in or be an owner, director, officer, employee, agent, consultant or other representative of or for, or lend money or equipment to or otherwise support, any business that manufactures, engineers, markets, sells or provides, within a 250-mile radius of any then existing manufacturing facility of the Company and its subsidiaries and affiliates, metal building systems or components ..., coated or painted steel or metal coils, coil coating or coil painting ser- • vices, or any other products' or services that are the same as or similar to those manufactured, engineered, marketed, sold or. provided by the Company or its subsidiaries and affiliates prior to the Termination Date.

b. Non-Solicitation. During the Advisory Period and for the period , ending five (5) years following the Termination Date, Ginn shall not, directly or indirectly and whether on his own behalf or on behalf of any other person, partnership, association, corporation or other entity, either (i) hire, seek to hire . or solicit the employment or service of any employee, agent or consultant of the Company or its Subsidiaries and affiliates in a commercial capacity; (ii) in any manner attempt to Influence or Induce any employee, agent or ■' consultant of the Company or its " • Subsidiaries and affiliates to leave the employment or service of the Company or its Subsidiaries or affiliates; (iii) use or disclose to any person, partnership, association, corporation or other entity any information concerning the names and addresses of any employees, agents or consultants of the Company or its Subsidiaries and affiliates unless such use or disclosure Is of a personal nature, Is requested by the Company or Is required by due process of law; or (iv) call upon, solicit, divert or attempt to call upon, solicit or, divert the business of any customer, vendor or acquisition prospect of the Company or any of its Subsidiaries or affiliates with whom the Company dealt, directly or indirectly, during his engagement with the Company or its Subsidiaries or affiliates.

Confidential Information. For purposes of the covenants made in this Section 4, the Company promises to provide Ginn (as is necessary for Ginn’s position) with various trade secrets and proprietary and confidential Information consisting of, but not limited to, business and/or strategic plans, budgets, fiscal plans, processes, computer programs, compilations of information, records, sales procedures, customer requirements, pricing techniques, customer lists, methods of doing business and other confidential Information (collectively referred to as the “Trade Secrets ”), which are owned by the Company and regularly used in the operation of its business, but in connection with which the Company takes precautions to prevent dissemination to persons other than certain directors, officers and employees.... Ginn acknowledges and agrees that the Trade Secrets (i) are secret and not known in the industry or to the public; (ii) are entrusted to him after being informed of their confidential and secret status by the Company and because of the fiduciary position occupied by him with the Company; (iii) have been developed by the Company for, and on behalf of, the Company through substantial expenditures of time, effort and money and are used in its business; (iv) give the Company an advantage over competitors who do not know or use the Trade Secrets; (v) are of such value and nature as to make it reasonable and necessary to protect and preserve the confidentiality and secrecy of the Trade Secrets; and (vi) the Trade Secrets are valuable, special and unique assets of the Company, the disclosure of which could cause substantial injury and loss of profits and goodwill to the Company. Ginn shall not use in any way or disclose any of the Trade Secrets, directly or indirectly, during the Advisory Period, or at any time thereafter, except as required in the course of his employment with the Company— All files, records, documents, Information, data and similar items relating to the business of the Company, whether prepared by Ginn or otherwise coming into his possession, shall remain the exclusive property of the Company and shall not be removed from the premises of the Company under any circumstances ..., and In any event shall be promptly delivered to the Company upon termination of Ginn’s employment for any reason; provided however, that Ginn may purchase his laptop from the Company.... Prior to such transfer of ownership, the Company shall ensure that all Confidential Information has been deleted from the laptop. Following a review of the laptop by the Company’s IT.personnel to ensure that it does not contain any Company Confidential Information, the Company will provide Ginn a copy of his contacts from the laptop and certain other personal information .

Ginn explained that although he intended to abide by the Separation Agreement when he signed it, he considered it to be “unreasonable.” Nevertheless, he did not “make any fraudulent or false representation[s] or statement^] to NCI” when he executed the agreement. And he disputed that he had “resigned” from NCI, even though he signed the Separation Agreement which expressly states that he “desire[d] to resign as an executive officer of [NCI].” 1

Ginn further noted that, despite the language in the Separation Agreement regarding confidential information, he was not aware that he was required “to turn in all the files and documents and computer printouts and everything of the company[’s] that [he] had.” He also “didn’t know” that he could not keep NCI information and property when he left the company. However, Ginn knew that, under the terms of the Separation Agreement, he “was not to disclose [NCI’s] confidential information” and was not to solicit NCI employees,, customers, and vendors. Looking back, Ginn realized that he was not “authorized” to have any NCI documents after leaving the company, and it was “wrong” of him to retain such information.

Ginn further testified that, while working at NCI,'he maintained two laptops— his work computer and his home computer (the “Rice laptop”). In 2005, NCI “connected,” or synchronized, his work computer with the Rice laptop. And NCI “installed a backup device,” a “Seagate [external] hard drive,” on the Rice laptop so that it would “backup every night.” Eventually, however, the Seagate hard drive began “sending error message[s] saying backup [had] failed.” Ginn, therefore, independently, purchased a second external hard drive (the “Buffalo hard drive”) in order to continue backing up his files on the Rice laptop.

Ginn purchased the Buffalo hard drive after his March 14, 2008 meeting with Chambers and “immediately before” signing the Separation Agreement. On the evening of March 26, 2008 and “the early morning hours” of March 27, 2008, the night before he signed the Separation Agreement, Ginn copied onto the Buffalo hard drive “all of NCI’s materials,” including confidential information, that were on the Rice laptop. It took approximately six hours for Ginn to' download the information, which, Ginn admitted, was “confidential and proprietary to NCI,” “valuable” to NCI, and the “property of NCI.” Because he purchased the Buffalo hard drive independently, NCI had “no way of knowing” of its existence. Following his backup of NCI’s information on the Rice laptop and signing of the Separation Agreement, Ginn “deleted everything that [he] could identify that had NCI on it” from the Rice laptop. However, he kept all of the NCI materials that he had downloaded onto the Buffalo hard drive.

■ In regard to his work computer, Ginn, after signing the Separation Agreement, met with Quintín Prior, an employee in NCI’s IT Department. Because NCI had agreed to allow Ginn to purchase his work computer when he left NCI, Prior extracted Ginn’s personal files from the work computer and proceeded to “scrub[ ]” it to ensure the removal of all NCI information. Despite the fact that NCI had removed all of its information from Ginn’s work computer, neither Prior, nor anyone else at NCI, asked him about any NCI documents on the Rice laptop or whether he had “any other NCI documents.” Ginn admitted that he did not reveal to anyone that he had backed up NCI documents to the Buffalo hard drive. However, he explained that Prior, at the time, “would have been aware of the fact that [he] had the Rice laptop” and it “was synchronized with [his] [work] computer so that whatever was on [his work] computer w[ould] also [have been] on the Rice laptop.”

Ginn further testified that in December 2008, while being paid as a consultant for NCI, he created his first business plan for a company, located in Houston, Texas, that would “manufacture, market and sell insulated panels ... for use in building construction.” NCI, however, had no knowledge that he was “developing a business plan to compete with [it].” Notably, the plan listed, as employees of and “people that were going to -be involved” with Ginn’s company, individuals who were employees of NCI at the time. The plan also specifically listed NCI as a competitor. Ginn marketed his business plan to investors, including customers and competitors of NCI, beginning in January 2009.

Ginn noted that there are “similarities” between his business plan and information on the documents that he had retained from NCI. Also, his plan contains some of the “same” or “identical” language found in his retained NCI documents. Ginn explained, nevertheless, that he did not “cop[y] NCI information to make [his] business plan,” nor was the language found in his business plan “taken from ... NCI document[s].”

Finally, Ginn testified that in February 2009, he formed and registered his eompa-ny, Green-Span. According to Ginn, NCI does not currently manufacture insulated métal panels within 250 miles of Ginn’s Waller, Texas facility. However, NCI’s insulated metal panels project was loc'ated in Stafford, Texas when Ginn was developing his business plan.

In May 2009, Ginn began selling insulated metal panels. He repeatedly insisted that he was not “competing” with NCI by developing Green-Span, but was simply “preparing to compete;” However, Ginn also admitted that “build[ing] a company that is going to sell and market insulated panels ... would have been going into competition with [NCI]” and, by May 2009, he was “competing with NCI.” Ginn currently employs four former NCI employees.

Norm Chambers, chairman, CEO, and president of NCI, testified that he initially joined NCI as president and COO, and in January 2007, he became CEO- after A.R. Ginn retired. After his promotion, Chambers, tasked with filling the COO position, considered Ginn, Dobbins, and Brad Rob-: inson for the role. At that time, Chambers also asked Ginn “to come join [him] at the corporate office,” where Ginn assumed an executive vice president position.

In his new role, Ginn “dedicated a lot of his time” to NCEs new insulated metal panel business, and he was “leading th[e]’ charge in terms of ... leading the development of the strategy ... [to] put [NCI] in[to] th[e] [insulated metal panels] business.” Ginn “traveled around the world,” “looked at manufacturers, studied the market,” and made presentations to NCEs board of directors. And, “with [a] small team of folks[,]” he developed “the whole strategy about how to manufacture [the product], what profiles, what the product should look like, the technology [NCI] should use, what chemistry [NCI] should use, [and] how [NCI] should go to market.”

In March 2008, Chambers decided to promote Dobbins, rather than Ginn, to the COO position at NCI, and on March 14, 2008, Chambers met with Ginn to inform him of that decision. After Chambers told Ginn that “Dobbins was the best choice for the company,” Ginn “was very quiet for a fairly long period of time.” Ginn then expressed that “he [had] felt he was going to be with the company for his lifetime, that he would ... run the company like his father did at some point and ... now that wasn’t going to be the case.” Ginn then told Chambers, “I’ve got to get out of here,” which Chambers initially interpreted to mean that Ginn wanted to “leave [his] office.” However, when Ginn made the same statement again, Chambers “realize[d]” that he actually “wanted to leave the company.”

Chambers further testified, contrary to Ginn’s testimony, that during them March 14, 2008 meeting, he “absolutely” did not tell Ginn that his employment would be terminated or he was “fired”; nor did Chambers state that he “had looked around and there was not another position” for Ginn at NCI. And Chambers did not discuss Ginn’s company stock or its vesting. It was not Chambers’ intention “for [Ginn] ... to leave the company,” and Ginn’s employment “wasn’t [being] terminated!,] [h]e just wasn’t going to get the promotion.” In fact, Chambers had even “given some thought to a possible other position for [Ginn]” because “he wasn’t going to get the [COO] promotion.”

A few days after the March 14, 2008 meeting, Ginn telephoned and “confirmed” that “he wanted to resign” from NCI, and he “asked what kind of [separation] package” would he receive. At that point, “it was absolutely clear [to Chambers that Ginn] had decided he was going to leave the company.” Chambers, however, never asked Ginn to say that he had resigned from NCI.

In regard to NCI’s confidential information, Chambers explained that he was not aware that any NCI information was on the Rice laptop, the Rice laptop had been connected to Ginn’s work computer, or Ginn had copied NCI documents, including NCI’s customer list, to an external hard drive prior to leaving NCI. Notably, had Chambers known that Ginn had copied and retained NCI information prior to signing the Separation Agreement, Chambers would not have entered into the agreement with Ginn. And if Chambers had known that Ginn did not intend to abide by the terms of the Separation Agreement, or would go into competition with NCI, he also would not have signed the agreement.

Mark Dobbins, NCI’s COO, testified that NCI decided to expand its insulated metal panels business in 2006, and in late 2006 or early 2007, Ginn joined other NCI employees in working on that aspect of NCI’s business. Specifically, Ginn “was charged with leading the group to investigate the type of equipment that would be used [in NCI’s insulated metal panels business], the type of processes to be used[,] and the location [of the business].” Prior to Ginn’s departure from NCI, it “had made ... decisions on the equipment manufacturers,” “had an equipment purchase order signed and sent to Puma manufacturing!, one of NCI’s vendors,]” “had decided on the location[,] and had contracted with a contractor to start some initial plans for the site [where the business would be located].”

In regard to Ginn’s departure, Dobbins testified that he believed that Ginn had resigned from NCI. After Chambers and Ginn’s March 14, 2008 meeting, Dobbins met with Ginn “to transition the things that [Ginn] was working on” to prepare for his departure. During that meeting, in regard to the topic, of his “leaving the company,” Ginn told Dobbins, “This is all on me.” Dobbins interpreted this statement as Ginn “letting [him] know that, [he] shouldn’t feel bad about [Ginn’s departure].”

Dobbins also explained that, during their meeting, Ginn did not tell him that his employment had been terminated, and Ginn did not say anything in Dobbins’ presence that was inconsistent with Ginn having resigned. According to Dobbins, when an individual’s employment is terminated, NCI “immediately restrict[s] [his] access to [the] IT systems,” and the employee has a “quick departure from the company.” However, in Ginn’s situation, his access to company files was not restricted, and he continued working after his March 14, 2008 .meeting with Chambers.

Dobbins further testified that Ginn, when he left NCI, had to “have known that he couldn’t ... take[ ][NCI] documents with him” and “it was a violation of company policy to download or copy all of the company’s files on to an independent hard drive.” Dobbins explained that he did not know that Ginn had “cop[ied] NCI documents” or had “electronic possession” of NCI data until shortly before trial. NCI would not have “allowed [Ginn’s] stock to vest if [it] had known that on the [night before signing the Separation Agreement], he had copied all of th[e] company files and retained them.” ' Further, it took “two years” after filing suit before NCI “even knew that [Ginn had] downloaded [NCI documents] to an external hard drive.” And, according to Dobbins, Ginn used the NCI documents to create his business plan for Green-Span.

Todd Moore, NCI’s general counsel, testified that he was involved in drafting the Separation Agreement. when Ginn “resigned” from his position at NCI. Moore explained that when a NCI employee is “fired,” he is not “given two more weeks of access to confidential documents of the company as ... Ginn was.” He further noted that had Ginn been “fired,” or his employment “terminated” at the March 14, 2008 meeting, he would not “have been allowed to continue to work with the company and have access to” company materials: And it is not NCI’s policy to enter into a separation agreement when someone’s employment is “terminated.”

Moore further testified that, at the time of Ginn’s resignation, he was not aware that Ginn owned the Rice laptop and NCI information was located on it.. It was not until 2011 that NCI became aware that Ginn “had actually downloaded all [of NCI’s] documents the night before he signed the Separation Agreement.” Moore explained that NCI would not have executed the Separation Agreement if it had known at the time that “Ginn had downloaded everything on- his Rice computer ... to an external hard drive.” And Ginn was not given permission to download and retain NCI documents.

Quintín Prior, vice-president of IT operations for NCI, testified that in 2005, Ginn “reques[ed]” to have the Rice laptop, “sync[ed]” with his work computer. According to Prior, this is generally not allowed because it creates a “security problem” or' “security risk” when “company data [is] on a personal laptop outside the organization.” However, because Ginn was “who he was,” IT complied with the request. Due to the synchronization of the Rice laptop with his' work computer, all information available on Ginn’s work computer also appeared on the Rice laptop, and vice versa.

In regard to the use of external hard drives, Prior explained that it is also against company policy for employees to purchase and use such drives because if the external hard drive is “stolen or misplaced, the [company] data [on the drive] could be accessed or stolen or used inappropriately.” And Prior could not find any evidence showing that NCI had purchased and provided the Seagate hard drive for Ginn’s use. Prior had no knowledge of that particular hard drive, contrary to Ginn’s testimony.

Prior further testified that on March 27, 2008, after he had been informed of Ginn’s resignation from NCI, he was tasked with “get[ting] any [NCI] data off of [Ginn’s work computer] and securing] the laptop.” To complete the process, Prior, with Ginn’s assistance, copied all of Ginn’s.. personal data on his work computer onto two thumb drives. He then- proceeded to “wipe [Ginn’s work computer] clean” in order to remove all NCI data. During the process, Prior also asked Ginn whether he had “any other company data that [NCI] should be aware of,” to which Ginn responded, “No.” Although Prior did not. specifically ask Ginn about the Rice laptop or its contents, he meant his question to encompass “all data, whether it was on ... the Rice laptop or not.” It included “anything” where Ginn might have stored data because Prior could not “be certain [whether Ginn] ha[d] other devices [that] he may have copied [NCI] data on[to].” And Ginn did not inform Prior of the Buffalo hard drive- onto which Ginn had copied NCI documents and information.

Cheri Carr, NCI’s computer forensics expert, testified about the computers owned' ¿y Ginn and the devices found to have been connected to those computers. In regard to the Rice laptop, Carr explained that 18,000 files had been transferred from the Rice laptop to the Buffalo hard drive the night before Ginn signed the Separation Agreement. According to Carr, the backup of files from the Ricé laptop to the Buffalo hard' drive took approximately six hours and ended at two o’clock in the morning on March 27, 2008.

In regard to the Acer Computer, the computer that Ginn obtained shortly after leaving NCI, Carr testified that the Buffalo "hard drive had been connected to the Acer computer from April 2008 through August 2008. And 16,000 of' the 18,000 fílés that had been downloaded onto the Buffalo hard drive from the Rice laptop were transferred to the Acer computer during this time. Further, seventy files that were located on the Buffalo hard drive were opened on the Acer computer. And some of the files located on the Acer computer included “NCI” in their file path. However, Carr explained that she did not actually look at the content- of any file on any of the devices,- including those files found on the Acer computer.

Carr further testified that NCI did not receive either the Buffalo hard drive or the Acer computer from Ginn until August 2011. If was only after receiving these devices that she was able to determine exactly how many files had been backed up onto the Buffalo hard drive from the Rice laptop the night before' Ginn signed the Separation Agreement.

In regard to damages, NCI’s expert, Bryan Van Uden, testified that NCI incurred damages resulting from Ginn’s fraud in the amount of $1,941,509, which encompassed the value of Ginn’s salary, $859,342, including the amount of taxes NCI paid on Ginn’s -behalf, and the value of the stock that vested pursuant to the Separation Agreement. Van Uden explained that 67,326 shares of stock vested on March 30, 2008 “as a result of [Ginn] entering into” the Separation Agreement. At that time, the price per share was $23.51, making the gross value of Ginn’s vested stock $1,582,840. However, Ginn was required to pay one cent per each share, he was awarded; therefore, “the net value of the shares that were vested to ... Ginn as part of th[e] [Separation [Ajgreement” was $1,582,167.

Jury Charge and Findings

The trial court submitted to the jury NCI’s claims for common-law and statutory fraud, breach of fiduciary duty, and unjust enrichment. The trial court' also submitted to the jury the question of whether Ginn’s employment had been terminated without cause. The jury found Ginn liable for common-law and statutory fraud, breach of fiduciary duty for copying NCI’s confidential information with the intent to use or disclose it other than for the benefit of NCI, and unjust enrichment. It did not find that Ginn had breached his fiduciary duty by using or disclosing the confidential information that he had gained 'during his employment with NCI or that NCI terminated Ginn’s employment “without cause.” The jury awarded NCI $359,342 in damages for the salary that, it had paid to Ginn, but it did not award NCI any damages for the stock that vested on March 30, 2008 pursuant to the Separation Agreement.

Post-Verdict Motions and Judgment

Both partiés filed several post-verdict and post-judgment motions. ' In its motions, NCI requested that the trial court disregard the jury’s finding of zero damages for the NCI stock that had vested pursuant to the Separation Agreement, find that the evidence conclusively established that Ginn’s fraud and breach fiduciary duty caused NCI damages totaling $1,941,509, rescind- the Separation Agreement, and order Ginn to pay NCI $1,941,509 plus its attorney’s fees. In his motions, Ginn asked the trial court to, among other things, disregard the jury’s finding of statutory fraud and award him his attorney’s fees. Ginn also requested that the trial court issue findings of fact and conclusions of law on his claim for attorney’s fees.

The trial court granted Ginn’s request to disregard the jury’s finding of statutory fraud, concluding- that the Separation Agreement “did not constitute a transaction involving 'Stock in a corporation or joint stock company.” The trial court also, per NCI’s request, disregarded the jury’s finding of zero damages for the NCI stock that had vested pursuant to the Separation Agreement. And it entered judgment in NCI’s favor, rescinding the Separation Agreement and ordering Ginn to repay the consideration that he had received pursuant to the Separation Agreement in the amount of $1,941,509. The trial court declined to award attorney’s fees to either party.

Finally, the trial court, over NCI’s objection, entered the following findings of fact and conclusions of law related to Ginn’s claim for attorney’s fees:

1. ... [A]ll issues relating to Defendant Kelly Ginn’s Counterclaim for Attorney[’s] fees under the provisions of Section 15.51(c) of the Texas Business. & Commerce Code were for the Court and not the jury....[;]

2. ... [T]he restrictive covenants in the March 27, 2008. [Separation] Agreement ... were unenforceable for failure of consideration. In addition, they contained limitations that were not reasonable in terms of time and scope and imposed a greater restraint than necessary to protect the goodwill or other business interest Plaintiff NCI Building Systems, Inc. (“NCI”);

3. ... NCI did not know at the time that the [Separation] Agreement was executed that it contained limitations that were unreasonable and imposed a greater restraint than necessary to protect its goodwill or other business interests;

4. ... NCI sought to enforce the [Separation] Agreement to a greater extent than was necessary to protect its goodwill or other business interests;

5. The parties stipulated as to the amount of attorneyf’s] fees incurred by Defendant Kelly Ginn to defend this suit, which amount was stipulated to be $420,000 through the date of entry of judgment in this cause; $90,000 for an appeal to the Court of Appeals!;] and $50,000 for an appeal to the Texas Supreme Court; and

6.The Court concludes that Defendant Kelly Ginn is not entitled to recover his attorneyt’s] fees pursuant to the provisions of Section 15.51(c) of the Texas Business & Commerce Code.

Statutory Fraud and NCI’s Attorney’s Fees

In its first issue, NCI argues that the trial court erred in disregarding the jury’s finding that Ginn committed statutory fraud and not awarding NCI attorney’s fees because “the Separation Agreement was a transaction involving stock [in a corporation].” See Tex. Bus. & Com. Code Ann. § 27.01 (Vernon 2015).

A trial court may disregard a jury finding if the evidence is legally insufficient to support it or if a direct verdict would have been proper because a legal principle precludes recovery. Tex. R. Civ. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991); Williams v. Briscoe, 137 S.W.3d 120, 124 (Tex.App.-Houston [1st Dist.] 2004, no pet.); John Masek Corp. v. Davis, 848 S.W.2d 170, 173 (Tex.App.-Houston [1st Dist.] 1992, writ denied). Because the trial court’s decision to disregard the jury’s statutory-fraud finding was based upon a legal conclusion, we review the ruling de novo. Hous. Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638 (Tex.App.-Houston [1st Dist.] 2003, pet. denied).

Texas law prohibits false representations in transactions involving stock in corporations. Tex. Bus. & Com. Code Ann. § 27.01; Tukua Invs., LLC v. Spenst, 413 S.W.3d 786, 796 (Tex.App.-El Paso 2013, pet., denied) (“Section 27.01 applies to false misrepresentations or promises made to induce another to enter into a contract for the sale of real property or stock”). The trial court submitted NCI’s statutory-fraud claim to the jury, and the jury affirmatively found that Ginn “committed statutory fraud against NCI in connection with the March 27, 2008 [Separation] [A]greement.” In his motion to disregard the jury’s statutory-fraud finding, Ginn argued that NCI’s statutory-fraud claim failed as a matter of law because the Separation Agreement did not constitute “a contract or transaction involving the conveyance or transfer of stock [in a corporation].” The trial court granted Ginn’s motion and disregarded the jury’s statutory-fraud finding, concluding that “the March 27, 2008 Separation Agreement did not constitute a transaction involving stock in a corporation ... as required by Texas Business and Commerce Code section 27.01(a).” The trial court also denied NCI’s request for attorney’s fees under section 27.01(e).

Transaction Involving Stock

To establish a statutory-fraud claim, a plaintiff must prove: (1) a transaction involving real estate or stock; (2) during the transaction, • the other party made a false representation of fact, made a false promise, or benefitted by not disclosing that a third party’s representation was false; (3) the false representation or promise was made for the purpose of inducing the party to enter into a contract; (4) the party relied on the false representation or promise by entering into the contract; and (5) the rebanee caused the party injury. Tex. Bus. & Com. Code Ann. .§ 27.01. Thus, a viable claim for statutory fraud must relate to “a transaction involving real estate or stock in a corporation.” Id.; see also Evans v. Wilkins, No. 14-00-00831-CV, 2001 WL 1340356, at *3 & n. 3 (Tex.App.Houston, [14th Dist.] Nov. 1, 2001, no pet.) (not designated for publication).

Courts have “strictly” interpreted this requirement, holding that for fraud in a. transaction to be actionable under section 27.01, the contract must “actually effect the conveyance” of real estate or stock between the parties, and it “cannot merely be tangentially related or a means for facilitating a conveyance” of real estate or stock, Evans, 2001 WL 1340356, at *3; see also Stanfield v. O’Boyle, 462 S.W.2d 270, 271 (Tex.1971) (concluding predecessor statute to section 27.01 “applicable only when a conveyance of the property has been made’’ (internal quotations omitted)); Tex. Commerce Bank Reagan v. Lebco Constructors, Inc., 865 S.W.2d 68, 82 (Tex.App.-Corpus Christi 1993, writ denied) (“Texas courts hav.e, not interpreted sec tion 27.01 that broadly.”). In order words, the contract must cause stock to be conveyed. See BLM of Brownwood, Inc. v. Mid-Tex Cellular, Ltd., No. 11-11-00311-CV, 2014 WL 1285765, at *6 (Tex.App.-Eastland Mar. 31, 2014, no pet.) (mem.op.); Tukua Invs., 413 S.W.3d at 796-97; Evans, 2001 WL 1340356, at *3; see also Life Ins. Co. of Va. v. Murray Inv. Co., 646 F.2d 224, 227 n. 2 (5th Cir.1981). A trans action occurs when there is a sale or a contract to sell real estate or stock between the parties. Burleson State Bank v. Plunkett, 27 S.W.3d 605, 611 (Tex.App.-Waco 2000, pet. denied); Nolan v. Bettis, 577 S.W.2d 551, 556 (Tex.Civ.App.-Austin 1979, writ ref'd n.r.e.).

NCI asserts that “the Separation Agreement without doubt effected the transfer of stock to Ginn.” Ginn responds that “the Separation Agreement was not one for the sale or conveyance of stock,” but instead “effectuated Ginn’s separation from NCI.” He asserts that his “stock awards had already been conveyed prior to the [Separation] Agreement” by virtue of the Restricted Stock Agreements.

This Court has previously held, in regard to a statutory-fraud claim involving stock options, that the options must vest in order for section 27.01 to apply. Stephanz v. Laird, 846 S.W.2d 895, 905 (Tex.App.-Houston [1st Dist.] 1993, writ denied); see also Wright v. Modern Grp., Ltd., No. 13-12-00293-CV, 2013 WL 4714930, at *9-10 (Tex.App.-Corpus Christi Aug. 30, 2013, pet. denied) (mem.op.) (no statutory-fraud claim because “stock was unvested”); Beebe v. Compaq Computer Corp., 940 S.W.2d 304, 307 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (relying on Stephanz and holding claim under “Texas Securities Act’s anti-fraud provisions” barred because “stock options did not vest”). In other words, when an agreement only grants unvested stock, it does not constitute a transfer or conveyance of stock that implicates section 27.01. See Stephanz, 846 S.W.2d at 905.

In Stephanz, the agreement at issue granted unvested stock options to the plaintiff-employee “exercisable at varying intervals.”' Id. at 900, 905. Before the plaintiff’s stock options began to vest, however, he had to meet “certain conditions precedent,” including employment with the corporation for a period of eighteen months. Id. at 905. Because the conditions precedent were not satisfied and the stock had therefore not vested, we concluded that the agreement'did not give rise to a 'claim under section 27.01. Id. Simply put, there was no transfer or conveyance of stock. See id.

Here, like the stock.agreement in Stephanz, the Restricted Stock Agreements, which Ginn asserts “conveyed” him stock, only actually awarded Ginn stock shares that would later vest upon certain conditions precedent. Cf. id.; see also Wright, 2013 WL 4714930, at *9-10. Thus, contrary to Ginn’s assertions, the Restricted Stock Agreements did not convey to him the stock shares now at issue.

However, unlike the Restricted Stock Agreements, the Separation Agreement did actually convey stock to Ginn. In fact, the Separation Agreement directly and immediately transferred ownership of stock to Ginn by providing that “[a]ll Restricted Stock Awards granted to Ginn prior to December 31, 2007 will fully vest on March 30, 2008” and imposing no conditions precedent on the vesting of the' stock. Cf. Stephanz, 846 S.W.2d at 905; Wright, 2013 WL 4714930, at *9-10. Because the parties executed a contract for the conveyance of stock, NCI’s claim for statutory fraud under section 27.01 is not barred due to the absence of “a transaction involving real estate or- stock.” See Tex. Bus. Com. Code Ann. § 27.01(a). Thus, the trial court properly submitted to the jury the question of whether Ginn had committed statutory fraud.

Accordingly, we hold that the trial court erred in concluding that the Separation Agreement did not constitute a transaction involving stock and disregarding the jury’s finding that Ginn committed statutory fraud.

NCFs Attorney’s Fees Under Section 27.01(e)

Generally, a party may not recover attorney’s fees unless authorized by statute or contract. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat 7 Dev. & Research Corp., 299 S.W.3d 106, 120 (Tex.2009). Section 27.01 allows the recovery of attorney’s fees upon the successful prosecution of a- statutory-fraud claim. Tex. Bus. & Com. Code Ann. § 27.01(e) (“Any person who violates the provisions of this section shall be liable to the person defrauded for reasonable and necessary attorney’s fees_”).

-Here, the jury found Ginn liable for statutory fraud, and the parties entered a stipulation in regard to the amounts of their reasonable and necessary attorney’s fees. Ginn, however, asserts that the Texas Covenants Not to Compete Act (the “Act”) preempts NCI from recovering attorney’s fees under any law, including section 27.01. See id. § 15.52 (Vernon 2011). In response, NCI asserts that the Act is limited to actions that seek to enforce covenants not to compete and “NCI’s case was about Ginn’s fraud and breaches of fiduciary duty that induced NCI to enter into an agreement paying [Ginn] almost $2 million in compensation.”

The Texas Supreme Court has generally defined covenants-not-to-compete governed by the Act as those “[c]ovenants that place limits on former employees’ professional mobility or restrict their solicitation of the former employers’ customers and employees.” Exxon Mobil Corp. v. Drennen, 452 S.W.3d 319, 327 (Tex.2014). When the Act applies, Texas Business and Commerce Code section 15.52 provides;

The criteria for enforceability of a covenant not to compete provided by Section 15.50 of this code .and the procedures and remedies in an action to enforce a covenant not to compete provided by Section 15.51 of this code are exclusive and preempt any other criteria for enforceability of a covenant not to compete or procedures and remedies in an action to enforce a covenant not to compete under common law or othenvise.

Téx. Bus. & Com. Code ANN. § 15.52 (emphasis added).

Under section 15.51, an employee, not an employer, is entitled to recover attorney’s fees in an action to enforce a covenant not to compete. Id. § 15.51(c) (Vernon 2011) (providing court may award employee “costs, including reasonable attorney’s fees,” but containing no provision for award of fees to employer); Glattly v. Air Starter Components, Inc., 332 S.W.3d 620, 645 (Tex.App.-Houston [1st Dist.]-2010, pet. denied) ■ (“[T]he ... Act does not permit employers to recover their attorney’s [fees] in suits to enforce their rights-”). Thus, if the Act applies in this case, then NCI, as Ginn’s former employer, may not recover attorneys fees under the Act or any other law. See Tex, Bus. & Com. Code Ann. § 15.51(c); Glattly, 332 S.W.3d at 645.

Among its other claims, NCI sued Ginn for breach of the non-competition and non-solicitation provisions in the Separation Agreement. In its initial petition, NCI alleged that, pursuant to the Separation Agreement,

Ginn agreed ;.. that he would not, for five years, engage in any business that manufacturers or sells any products or services that are the same as, or similar to, those that are manufactured and sold by NCI within 250 miles of NCI’s manufacturing- facilities. Ginn also agreed not to solicit NCI’s customers or hire NCI’s employees during this time period.

According to NCI, Ginn “violated his non-compete agreements by starting a new business called Green-Span Profiles, L.P. that manufactures and sells insulated metal panels ... within 250 miles of NCI’s manufacturing facilities,” and he “violated his non-solicitation agreements by soliciting NCI’s customers.” Accordingly, NCI sought “monetary damages caused by Ginn’s breaches of contract” and to enjoin him from “starting a new business that competes with NCI ... [and] soliciting NCI’s customers.”

The trial court denied NCI’s , application for temporary injunction to the extent that it sought “enforcement of the non-compete provisions of the March 27, 2008 [Separation] Agreement.” And, subsequently, Ginn moved for summary judgment on NCI’s breach-of-non-compete-covenant claims, which the trial court granted. In doing so, the trial court found that the Separation Agreement’s noncompetition provision and the non-solicitation provision, as it relates to NCI customers, “ate subject to section 15.50 of the Texas Business and Commerce Code” and “are unenforceable for lack of consideration.” Accordingly, the trial court dismissed NCI’s breach-of-contract claims and “claims for injunctive relief’ that were based on the Separation Agreement’s non-competition provision and non-solicitation provision, to the extent that it relates to customers, with prejudice. Following the trial court’s summary-judgment ruling, NCI non-suited its remaining breach-of-contract claims.

In its briefing, NCI notes that it “non-suited” its “prior pleaded ... claim seeking to enforce [the Separation Agreement’s] noncompete [provision].” And it asserts that “a pleaded but nonsuited cause of action to enforce a noncompete” should not “preempt[ ] the recovery of relief available pursuant to other causes of action that were actually tried.”

Our review of the record, however, reveals, as stated above, that Ginn moved for summary judgment on NCI’s claim for breach of the Separation Agreement’s non-competition and non-solicitation provisions. And the trial court rendered partial summary judgment on NCI’s claims, dismissing them with prejudice. Further, it was not until after the trial court had rendered summary judgment that NCI nonsuited its remaining contract claims.

A partial summary judgment is a decision on the merits and becomes final upon the disposition of the other issues in the case. Newco Drilling Co. v. Weyand, 960 S.W.2d 654, 656 (Tex.1998). NCI cannot avoid the trial court’s ruling on its enforcement claims by subsequently non-suiting its other contract claims. See id. (“[A] plaintiff cannot avoid the effects of a partial summary judgment by subsequently filing a nonsuit....”); Hyundai Motor Co. v. Alvarado, 892 S.W.2d 858, 855 (Tex.1995) (“Once a judge announces a decision that adjudicates a claim, that claim is no longer subject to the plaintiffs right to nonsuit.”). Here, the trial court actually ruled on the merits of NCI’s claims seeking enforcement of the Separation Agreement’s covenant not to compete, and NCI did not actually move to nonsuit its claims for breach of the non-competition and non-solicitation provisions. Accordingly, NCI’s “nonsuit” argument is untenable.

Because the Act preempts NCI’s claim for attorney’s fees under section 27.01 and the Act does not allow employers to recover attorney’s fees in suits to enforce covenants not to compete, we hold that the trial court did not err in denying NCI’s claim for attorney’s fees. See Tex. Bus. & Com. Code Ann. §§ 15.51(c), 15.52.

We overrule NCI’s first issue.

Reliance

In his eighth issue, Ginn argues that the trial court erred in not rendering judgment that NCI take nothing on its claims for common-law fraud and unjust enrichment because NCI “failed to obtain a finding on the necessary element of ... reliance.” He further argues that because “NCI did not submit the necessary element ]” of reliance on “its misrepresentation claims,” it “waived those claims, and the trial court should have, disregarded the jury’s answer to NCI’s misrepresentation ... and unjust enrichment elaim[s].”

To establish common-law fraud, NCI was required to prove that: (1) Ginn made a material representation; (2) the representation was false; (3) when Ginn made the representation, he knew it was false or he made it recklessly without any knowledge of the truth and as a positive assertion; (4) Ginn made the representation with the intent that NCI should act on it; (5) NCI acted in reliance on the representation; and (6) NCI suffered injury. Aquaplex, Inc. v. Rancho La Valencia, Inc., 297 S.W.3d 768, 774 (Tex.2009).

Here, the trial court, in Question No. 1 of its charge, asked the jury:

Did Kelly Ginn commit common law fraud against NCI in-connection with the March 27,2008 agreement?

In Question No. 10, the trial court asked the jury:

Has Kelly Ginn been'unjustly enriched at NCI’s expense?

A party is unjustly enriched when he has obtained a benefit by fraud;

The trial court, under both questions, instructed the jury:

Fraud occurs when:

1. a party makes a material misrepresentation, and ■

2.' the misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion, and

3. the misrepresentation is made with the intention that it should be acted on by the other party, and

4. the other party relies on the misrepresentation and thereby suffers injury. '

And the trial court further instructed the jury:

“Misrepresentation” means a false statement of fact, or a promise of future performance made with an intent, at the time the promise was made, not to perform as promised; '

or

1. a party fails to disclose a material fact within the knowledge of that party, and

2. the party knows that .the other party .is ignorant of the fact and does not have an equal opportunity to discover the truth, and

3. the party intends to induce the other party to take some action by failing to disclose the fact, and

4. the other party suffers injury as a result of acting without knowledge of the undisclosed fact.

Ginn argues that the trial court erred in instructing the jury on fraud and misrepresentation because its instructions did not require the jury to find that NCI had “actually and justifiably” relied on Ginn’s alleged misrepresentations. Ginn proposed an instruction that, in regard to the element of reliance, reads, “NCI actually and justifiably relied upon Ginn’s representation in entering into a binding agreement.” He argues that because the trial court’s instruction did not include language explaining that reliance had to be both “actual and justifiable,” “NCI did not submit [a] necessary element of its '... misrepresentation claims.” In response, NCI asserts that “the issue of actual reliance was submitted to the jury ... [a]nd in doing so, the issue of justifiability was likewise submitted.”

We review a trial court’s decision to submit or refuse a particular-jury instruction for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, or if it acts without reference to any guiding rules or principles. Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex.App.-Houston [1st Dist.] 2009, pet. denied). A trial court has wide discretion in submitting jury instructions and questions. Id. This discretion is subject only to the requirement that the questions submitted must: (1) control the disposition of the case; .(2) be raised by the pleadings and the evidence;, and (3) properly submit the disputed issues for the jury’s determination. Tex. R. Civ. P. 277, 278; Moore v. Kitsmiller, 201 S.W.3d 147, 153 (Tex.App.-Tyler 2006, pet. denied). “When a trial court refuses to submit a requested instruction on an issue raised by the pleadings and evidence, the question on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict.” Shupe, 192 S.W.3d at 579. The omission of an instruction constitutes reversible error only if the omission probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). “Error in the omission of an issue is harmless ‘when the findings of the jury in answer to other issues are sufficient to support the judgment.’ ” See Shupe, 192 S.W.3d at 579-80 (Boatland of Hous., Inc. v. Bailey, 609 S.W.2d 743, 750 (Tex.1980)).

' As an initial matter, we note that Ginn, in his briefing, appears to use the terms “justifíáble reliance” and “reasonable reliance” interchangeably. At times, he asserts that the trial court’s charge to the jury “did not require NCI to establish that it justifiably relied on Ginn’s repi-esenta-tions,” but he also argues that the jury made “no affirmative finding that NCI reasonably relied on any statement” made by him. However, it is important to not conflate these two concepts. Notably, “just