Appellate Motion in TALLEY DUNN GALLERY, L.L.C., et al vs. BRADLEY MILLER| Trellis.Law

On February 11, 2015 a Appellate Materials was filed involving a dispute between Dunn, Talley, Talley Dunn Gallery, L.L.C., and Miller, Bradley B., for OTHER (CIVIL) in the District Court of Dallas County.

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VOLUME 10F 1
Trial Court Cause No. DC-15-01598-J
A Case No. 05-15-00444-CV
Inthe 191° District Court of Dallas County, Texas
Honorable GENA SLAUGHTER J udge Presiding

BRADLEY B MILLER, Appellant(s)

Vs.

TALLEY DUNN GALLERY LLC, etal, Appellee(s)

Appealed
To The
Court Of Appeals For The 5" District Of
Texas, At Dallas, Texas

Attorney for Appellant(s): Eric C Wood

NAME: Scheef & Stone LLP

ADDRESS: 2600 Network Blvd. Suite 400
Frisco TX 75034

TELEPHONE NO.: 214-472-2100

FAX NO.: 214-472-2150

E-MAIL ADDRESS: eric.wood@solidcounsel.com

SBOT NO.: 24037737

ATTORNEY FOR: Bradley B Miller

Delivered
To The Court Of Appeals
For The 5" District
Of Texas,
At Dallas, Texas

On the 16™ day of April, 2015
FELICIA PITRE
DISTRICT CLERK
DALLAS COUNTY, TEXAS

By Bridgette Vation, Deputy District Clerk
DC-15-01598

BRADLEY B MILLER INTHE DISTRICT COURT

Vs. DALLAS COUNTY, TEXAS

TALLEY DUNN GALLERY 1915" JUDICIAL DISTRICT
LLC, eal
Feo

Appeal #1
1 Cover

Index

Caption

Judge’s Docket-Not Located.

Plaintiffs’ Verified Original Petition For Injunctive Relief,
February 11, 2015

Temporary Restraining Order, 36
February 11, 2015

Civil Case Information Sheet, 41
February 11, 2015

Order Of Preservation, 42
February 11, 2015

Order Granting Plaintiffs’ Motion For Expedited Discovery, 45
February 11, 2015

10 Defendant’s Original Answer, 47
February 20, 2015

11 Defendant’s Response In Opposition To Plaintiffs’ Application For 51
Temporary Injunction,
February 24, 2015

12. Defendant’s First Amended Answer, 98
February 24, 2015

13. Agreed Order Extending Temporary Restraining Order, 102
February 25, 2015
Page 2

14. Plaintiffs’ Verified Amended Petition, 104
March 5, 2015

15. Trial Brief In Support Of Temporary Injunctive Relief On 142
Toritious Interference Claims,
March 6, 2015

16. Order, 177
March 10, 2015

17. Defendant’s Objection To Plaintiffs’ Proposed Order Purporting To 178
Extend Temporary Restraining Order,
March 10, 2015

18. Non-Signed Order, 185
March 10, 2015

19. Defendant’s Response To Plaintiff's Trial Brief In Support Of 186
Temporary Injunctive Relief On Tortious Interference Claims,
March 11, 2015

20. Correspondence From Judge, 209
March 13, 2015

21. Defendant’s Objection To Plaintiffs’ Proposed Form Of Temporary 212
Injunction Order,
March 17, 2015

22. Non-Signed Temporary Injunction, 234
March 18, 2015

23. Order Denying Defendant’s Motion To Dismiss, 248
March 19, 2015

24. Temporary Injunction, 250
March 19, 2015

25. Jury Demand, 264
March 19, 2015

26. Scheduling Order (Level 1 Of 2), 265
April 1, 2015
27. Notice Of Accelerated A ppeal By Defendant Bradley B Miller, 268
April 7, 2015
Page 3

28. Notice Of Accelerated Appeal By Defendant Bradley B Miller, 271
April 7, 2015
29. 5" COA Correspondence, 274
April 8, 2015
30. Clerk’s Record Request, 282
April 10, 2015
31 Request For Reporter’s Record, 284
April 10, 2015
32 Cost Bill 286

33, Clerk’s Certificate 292
THE STATE OF TEXAS

COUNTY OF DALLAS

In the 191°" District Court of Dallas County, Texas, the Honorable GENA SLAUGHTER

Judge Presiding, the following proceedings were held and the following instruments and

other papers were filed in this cause, to wit:

Trial Court Cause No.: DC-15-01598

IN THE 191°" DISTRICT COURT
BRADLEY B MILLER

Vs. OF

TALLEY DUNN GALLERY LLC,
etal
DALLAS COUNTY, TEXAS
l
DALLAS COUNTY
2/11/2015 10:37:38 AM
1CIT/ESERVE FELICIA PITRE
DISTRICT CLERK

DC-15-01598 Gay Smith
NO

TALLEY DUNN GALLERY, L.L.C.
and TALLEY DUNN, IN THE DISTRICT COURT OF

Plaintiffs,
DALLAS COUNTY, TEXAS

BRADLEY B. MILLER, ______ JUDICIAL DISTRICT

Defendant.

PLAINTIFFS’ VERIFIED ORIGINAL PETITION
FOR INJUNCTIVE RELIEF

The TALLEY DUNN GALLERY, L.L.C. and TALLEY DUNN, Plaintiffs, complain

of the tortious conduct of BRADLEY B. MILLER, Defendant, and for cause of action

show the following:

I. DISCOVERY CONTROL PLAN

1.01 Discovery will be conducted under Level 2 of Texas Rule of Civil

Procedure 190. See Tex.R.Civ.P. 190.3.

II. PARTIES

2.01 Plaintiff TALLEY DUNN GALLERY L.L.C. (“TD Gallery”) is a domestic

limited liability company with its principal place of business located at 5020 Tracy

Street, Dallas, Texas 75205.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 1
2.02 Plaintiff TALLEY DUNN (“Dunn”) is an individual residing in Dallas

County, Texas and owns and operates the TD Gallery.

2.03 Defendant BRADLEY B. MILLER (“Miller”) is an individual residing in

Dallas County, Texas. Miller may be served with process at 3355 Whitehall, Dallas,

Dallas County, Texas 75229, (214) 923-9165.

Il. JURISDICTION AND VENUE

3.01 Jurisdiction exists pursuant to, inter alia, Section 24.007(b) of the

Government Code and Section 65.021(a) of the Civil Practices and Remedies Code. This

suit is brought under the common law and statutes of the State of Texas to obtain

injunctive relief against Defendant to stop the irreparable harm that Plaintiffs have

sustained and will continue to sustain as a result of his unlawful and tortious conduct.

This seeks only injunctive relief (plus attorney’s fees) against Defendant pursuant to

Tex. R. Civ. P. 680 - 693 and Sections 65.001 — 65.045 of the Civil Practices and Remedies

Code.

3.02 Venue is proper in Dallas, Dallas County, Texas pursuant to Section 15.002

(a)(1) and (a)(2) of the Civil Practice and Remedies Code.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 2
IV. BACKGROUND TO DISPUTE

4.01 The TD Gallery is located in Dallas, Texas. It exhibits contemporary art in

a variety of media by established and emerging artists. The TD Gallery one of the most

prominent art galleries of its kind in the region.

4.02 Dunn is a native of Dallas, the owner and operator of the TD Gallery, and

an active community volunteer. Dunn has been a practicing art dealer in Dallas, Texas

since 1990, and her business has been located at 5020 Tracy Street since 1999. Over her

twenty-four year career in the art world, Dunn has built long-term relationships with

artists, collectors, curators, critics, educators, and arts patrons from around the United

States and abroad.

4.03 Dunn has earned an exemplary reputation in terms of professional

integrity and business ethics. Over years of dedication to her community, her

colleagues, and her profession, Dunn has distinguished herself and her business for her

honesty, transparency, and good will.

4.04 The TD Gallery promotes and represents artists through exhibitions,

acquisitions, publications, projects and ambitious programming. In addition to

organizing year-round, rotating exhibitions and events at the TD Gallery, Dunn actively

participates in off-site exhibitions and projects with museums, institutions, and galleries

nationally and internationally.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 3
4.05 For over two decades, Dunn has cultivated key business relationships

with artists, collectors, colleagues and professionals throughout Texas and around the

world. Dunn works closely with artists, curators, arts professionals and those

individuals interested in collecting contemporary art, having participated in art fairs in

London, Basel, Madrid, Miami, New York, Dallas, Houston and Chicago. Dunn has

developed strong business connections to the Texas collecting community, and she is a

trusted adviser to private collectors and public collections of varying sizes around the

country.

4.06 In connection with the sale and marketing of art to collectors, museums,

corporations and institutions, the TD Gallery has expended substantial time, labor and

money to develop key relationships, with both artists, collectors, art professionals,

clients and patrons. The client lists of the TD Gallery, including their purchase history

and pricing information, are confidential. Such information constitutes the TD Gallery's

“trade secrets” within the meaning of the Texas Uniform Trade Secrets Act, TEX. CIv. P.

& REM. CODE § 134A.002(6).

4.07 This confidential information is neither available to nor known by the

general public or competing art galleries. The TD Gallery has taken substantial

measures to prevent its trade secrets and confidential information from becoming

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 4
available to persons other than those selected by TD Gallery to have access to this

information.

4.08 Defendant Miller is the former spouse of Dunn. During the course of their

marriage and divorce proceeding, Miller gained access to the trade secrets and

confidential information of the TD Gallery. This confidential information included the

TD Gallery’s financial information, including the general ledger, operating and payroll

accounts, and detailed financial information regarding transactions between the TD

Gallery and artists, collectors, vendors and employees. This confidential information

was produced in confidence to the Defendant and for the sole purpose of valuing the

TD Gallery during the parties’ settlement negotiations.

4.09 One such confidential financial report of the TD Gallery obtained by the

Defendant covers a time period from January 2, 2013 through October 24, 2013 (the

“General Ledger”). The General Ledger is a 102 page confidential business report that

includes current operating bank account numbers, payroll account numbers, private

banking matters, and confidential financial transactions between the TD Gallery and

artists, clients, employees and vendors.

4.10 Since 2013, Defendant Miller has waged a public campaign to disparage

Dunn and the TD Gallery and interfere with the gallery’s business affairs. As part of his

campaign, Defendant Miller, without Dunn’s knowledge, authorization or consent,

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 5
10
distributed and disclosed the confidential General Ledger to a variety of individuals.

For example, on December 5, 2014, Defendant Miller emailed the General Ledger to

various clients of the gallery and community leaders.

411 The General Ledger that Miller distributed includes all business activity

involving the gallery’s vendors, clients, employees and artists that worked with the TD

Gallery during that time period. It details both the monies collected from clients and

distributed to artists. It details every source of income and expense for the TD Gallery,

and the publication of this confidential document substantially interferes with Dunn’s

business.

4.12 Defendant Miller is also using the General Ledger to contact clients and

interfere with the business relationship that exists with the gallery. For example, in one

email dated December 5, 2014, Miller unilaterally contacted a gallery client and blamed

the client’s artwork purchases for Miller’s ninety-one (91) year old father being

hospitalized. Miller accompanied the email harangue with a photograph of his ill

father in the hospital, stating:

Please take a look at the attached Talley Dunn Gallery Ledger, which Talley
produced in discovery. Your name is prominently featured (on 6/21/13, 7/2/13,
8/5/13, 9/4/13, 10/2/13). Then take a look at the attached photo of my father in the
Presbyterian ICU. That's what you —personally —were funding.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 6
11
Defendant Miller, in attempting to persuade the client to cease doing business with the

TD Gallery, used the confidential General Ledger to interfere with the existing and

prospective business relationship with this client.

4.13 Defendant Miller is also disrupting the business relationships that exist

between Dunn, the TD Gallery and artists. For instance, Miller contacted an artist that

Dunn represents, Joseph Havel, on June 20, 2014, and made false accusations about her

business practices. Havel is the Director of the Glassell School of Art in Houston, Texas,

and an artist who Dunn has represented for nearly fifteen (15) years. Similarly, Miller

repeatedly contacted Matthew Sontheimer, an artist represented by the TD Gallery since

1999 and an Assistant Professor of Art at the University of Nebraska. Miller’s email

onslaught prompted Sontheimer to request the University of Nebraska’s IT Department

to block the Defendant's incoming emails.

4.14 Defendant Miller is also interfering with the employment relationships

between the TD Gallery and its employees. For example, Defendant Miller sent a letter,

documents, and unauthorized recordings of Dunn to Beth Taylor, the Director of TD

Gallery. Miller sent the barrage of materials to Taylor in an effort to disrupt the critical

professional relationship that Dunn has had with Taylor for nearly twenty (20) years.

4.15 In addition to community and business leaders, Defendant Miller has also

contacted members of the Hockaday School community to denigrate Dunn and malign

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 7
12
her reputation. Dunn’s daughter attends first grade at the Hockaday School, and Dunn

is serving her twelfth year on Hockaday’s Board of Trustees. During that time, Dunn

has served as Chair of the Board of Trustees and chaired numerous committees, most

recently of the Head of School Search Committee. She is also the immediate Past Chair

of the Board. Defendant Miller has repeatedly phoned, emailed, and written board

members to rage against Dunn, disparage her business, and accuse her of unethical

business practices.

4.16 Defendant Miller even pursues the press to spread his malice and lies. For

example, Miller contacted Patricia Mora, a freelance writer who has written for the

Dallas Morning News and other publications, to smear Dunn’s business reputation.

4.17 There appears to be no limit to Miller’s vice and ill will. Miller has even

contacted Dunn’s personal physicians to disparage her. Dunn suffers from multiple

scleroses, and has been treated for the disease for over twenty (20) years. In December

2014, Defendant Miller emailed one of her physicians, attaching the gallery's General

Ledger and attacking her character and integrity.

4.18 Miller engages in this pervasive campaign of unrelenting harassment

knowing its effect of Dunn’s health and physical ability to operate her art gallery. Her

physical presence at the gallery and gallery related events is essential, and Defendant

Miller knows that any MS flare-up or setback brought upon her through the stress of his

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 8
13,
pervasive harassment is detrimental to her ability to work and interferes with her

business activities.

4.19 Miller’s vile and outrageous conduct and dishonesty are damaging Dunn’s

reputation and harming her business, health, and family. His malicious behavior is also

threatening others associated with the gallery. Miller has disclosed private information

including the salaries of the gallery employees, the purchases made by clients, and the

income received by artists to an unknown number of people. He is on an unending

campaign to disparage Dunn and her business and interfere with its operations.

COUNTI
MISAPPROPRIATION AND/OR DISCLOSURE OF TRADE SECRETS -
UNIFORM TRADE SECRETS ACT VIOLATION

5.01 Plaintiffs incorporate the allegations set forth in paragraph 1.01 through

4.19 of this Verified Original Petition.

5.02 Defendant Miller’s conduct violates the Texas Uniform Trade Secrets Act,

TEX. CIV. P. & REM. CODE §§ 134A.001-134A.008 (“TUTSA”), and/or the common law of

Texas.

5.03 During their marriage and/or divorce proceeding, Defendant obtained the

TD Gallery’s confidential information, including the General Ledger, strictly for use in

connection with the settlement of their marital estate and resolution of their divorce

proceedings.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 9
14
5.04 The TD Gallery undertook reasonable steps to protect its confidential

information from disclosure and misuse. In addition and during the divorce

proceedings, the TD Gallery’s confidential information, including the General Ledger,

was subject to a Confidentiality Order entered by the 330th District Court of Dallas

County, Texas. The Confidentiality Order defined “confidential information” to include

“all financial information and personal information of the parties,” including the

General Ledger.

5.05 The Confidentiality Order prohibited and enjoined Defendant Miller from

“broadcasting Confidential Information about Talley Dunn Gallery, LLC . . . to anyone,

including but not limited to business associates, clients, customers, vendors, artists and

the press.” In addition, the Confidentiality Order prohibited Defendant Miller from

providing the General Ledger or other confidential information to any person or entity

not a party to the divorce proceedings, excepting only experts and mediators who

previously signed a non-disclosure agreement.

5.06 The Confidentiality Order also prohibited Defendant Miller from utilizing

the General Ledger “for any purpose other than the mediation, settlement, preparation

and trial, and/or appeal” of the divorce proceeding. Defendant Miller was also required

to return or destroy the confidential information, including the General Ledger, within

120 days of the final judgment.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 10
15
5.07 The Confidentiality Order was subsequently vacated and replaced with

another Order - signed on February 4, 2014 - that enjoined Defendant Miller from

“making disparaging remarks, whether oral or written., regarding” Dunn and/or TD

Gallery. This injunction remained in force until the final decree of divorce was entered

in April 2014.

5.07 After the second injunction expired, Defendant Miller “misappropriated”

and improperly disclosed the confidential information of the TD Gallery, including the

General Ledger, without the express or implied consent of the Plaintiffs within the

meaning of Section 134A.002(3)(B) of TUTSA. He also renewed his efforts to disparage

Dunn and/or the TD Gallery in an effort to disrupt her business and impair its value.

5.08 At the time of the disclosure or use, Defendant Miller knew or had reason

to know that his possession and knowledge of the trade secrets and confidential

information of Dunn and/or the TD Gallery had been acquired under circumstances

giving rise to a duty to maintain its secrecy or limit its use. See TEX. CIV. P. & REM. CODE

§§ 134A.002(B)(ii)(b).

5.09 Actual or threatened disclosure of the TD Gallery’s General Ledger (and

other confidential information) may be enjoined under TUTSA. See TEX. Clv. P. & REM.

CODE §§ 134A.003. As a direct and proximate result of Defendant’s wrongful acts,

Defendant has caused Plaintiffs to suffer, and will continue to suffer, irreparable harm.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 11
16
Plaintiffs, therefore, request that Defendant Miller be required to return all “confidential

information” to Dunn that was obtained during the course of discovery during the

divorce proceeding and be enjoined from utilizing, broadcasting or otherwise disclosing

the confidential information of the TD Gallery, including the General Ledger, to anyone,

including Plaintiffs’ business associates, clients, customers, vendors, artists and the

press.

COUNT II
TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS

6.01 Plaintiffs incorporate the allegations set forth in paragraph 1.01 through

5.09 of this Verified Original Petition.

6.02 The TD Gallery has existing contractual relationships and prospective

advantageous contractual and business relationships with its artists, customers, clients,

employees and vendors. Such contractual and prospective contractual relationships

were and are known by the Defendant by virtue of his possession of Plaintiffs’

confidential business information. Such existing and prospective contractual and

business relationships represent existing and a reasonable probability of future

economic benefits to Plaintiffs.

6.03 Defendant has willfully and intentionally interfered, without privilege or

justification, with one or more of those contractual relationships.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 12
17
6.04 Defendant has published, disclosed, used and continues to use Plaintiffs’

confidential information to induce artists, customers and clients to terminate or reduce

their business with TD Gallery and to interfere with Plaintiffs’ business and

employment relationships.

6.05 Defendant's interference was malicious and performed with the intent to

prevent or disrupt contractual relationships from continuing or occurring and with the

purpose of harming Plaintiffs.

6.06 Defendant committed these acts of willful and intentional interference

without privilege or justification. Furthermore, Defendant's intentional interference

with the TD Gallery’s existing and prospective business and employment relationships

was committed with malice, with the intent to harm Plaintiffs and/or with reckless

disregard and conscious indifference to the rights of Plaintiffs.

6.07 Defendant's tortious interference has directly and proximately caused, and

will continue to cause, irreparable harm and injury to Plaintiffs. Unless enjoined, it will

continue to cause such harm.

COUNT III
HARMFUL ACCESS BY COMPUTER VIOLATION

7.01 Plaintiffs incorporate the allegations set forth in paragraph 1.01 through

6.07 of this Original Petition.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 13
18
7.02 This cause of action is brought against Defendant pursuant to the

Harmful Access by Computer Act, TEX. CIv. P. & REM. CODE §§ 143.001 et seq. Dunn and

her property have been injured as a direct and proximate result of Defendant's

violations of Chapter 33 of the Penal Code.

7.03 This claim is timely. It is brought before the earlier of the fifth anniversary

of the date of the last act in the course of conduct constituting the statutory violation or

the second anniversary of the date when Dunn first discovered or had reasonable

opportunity to discover Defendant’s misconduct.

7.04 Defendant intentionally and/or knowingly, and without authorization

from Dunn, accessed Plaintiff's smartphone and computerized data as defined in

Section 33.01(11) of the Penal Code in violation of Section 33.02 of the Penal Code.

Defendant has subsequently disseminated and published the data wrongfully obtained.

7.05 Pursuant to Section 143.002, Dunn is entitled to relief as a result of

Defendant's violation of Chapter 33 of the Penal Code, including attorney’s fees.

7.06 Dunn seeks injunctive relief, including an order requiring Defendant to

return all data, including copies thereof in whatever format it may exist, to Plaintiff and

prohibiting Defendant from publishing or distributing any information obtained in

violation of Chapter 33 of the Penal Code.

COUNT IV
TEXAS WIRETAPPING VIOLATION

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 14
19
8.01 Plaintiffs incorporate the allegations set forth in paragraph 1.01 through

7.06 of this Verified Original Petition.

8.02 Defendant Miller’s conduct violates the Interception of Communications

Act, TEX. CIV. P. & REM. CODE §§ 123.001-123.004 (“ICA”).

8.03 Defendant attempted to intercept and intercepted communications of

Dunn within the meaning of Section 123.001(1) of the ICA. Defendant Miller attempted

to intercept and intercepted Dunn’s communications by concealing a digital recorder in

Dunn’s car.

8.04 Dunn had a reasonable expectation of privacy for those communications

intercepted by Defendant Miller. Dunn did not consent to her communications being

intercepted by Defendant Miller.

8.05 In using the hidden digital recorder, Miller intercepted and acquired the

contents of Dunn’s communications through the use of an electronic, mechanical or

other device without the consent of any party to the communication(s) within the

meaning of Section 123.001(2) of the ICA.

8.06 In violation of Section 123.002(a)(1) of the ICA, Defendant Miller

intercepted and recorded, and attempted to intercept and record, Dunn’s business and

personal communications and conversations while in her private car and without her

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 15
20
consent or knowledge. Defendant Miller also surreptitiously recorded face-to-face

conversations with Dunn without her knowledge and consent.

8.07 Defendant Miller transcribed the secretly recorded conversations and

distributed the conversations to third parties. In using or divulging information that

Defendant knew was obtained by interception of the communication(s), Defendant

Miller violated Section 123.002(a)(2) of the ICA.

8.08 As a result of Defendant's violations of the ICA, Dunn seeks an injunction

against Defendant prohibiting any further interception, attempted interception or

divulgence or use of information obtained by an interception as provided in Section

123.004(1) of the ICA.

COUNT V
TEXAS THEFT LIABILITY ACT VIOLATION

9.01 Plaintiffs incorporate the allegations set forth in paragraph 1.01 through

8.08 of this Verified Original Petition.

9.02 Defendant Miller’s conduct constitutes a violation of the Theft Liability

Act, TEX. CIv. P. & REM. CODE §§ 134.001-134.005, as his conduct constituted theft of

trade secrets under Section 31.05 of the Penal Code.

9.03 Plaintiffs are the owners and holders of certain trade secrets and other

confidential and proprietary financial information, including the General Ledger of the

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 16
21
TD Gallery. The General Ledger constitutes a trade secret within the meaning of

Section 31.05(a)(4) of the Penal Code.

9.04 Defendant knowingly, and without Plaintiffs’ effective consent, (a)

appropriated property and confidential financial documents, including the General

Ledger of the TD Gallery; (b) made a copy of the General Ledger in violation of Section

31.05(b)(2) of the Penal Code; and (c) communicated or transmitted the General Ledger

in violation of Section 31.05(b)(3) of the Penal Code.

9.05 Defendant Miller’s unlawful taking was accomplished with the intent to

deprive Plaintiff of their rights in and to the property, and caused Plaintiffs to suffer

damages as a result of the theft.

9.06 As a result of such unlawful appropriation of Plaintiffs’ property and

pursuant to Section 134.005 of the Civil Practices and Remedies Code, Plaintiffs seek to

enjoin any further unlawful appropriation of Plaintiffs’ trade secrets and confidential

information, including an order enjoining the Defendant from appropriating any

property and/or confidential financial documents, including the General Ledger of the

TD Gallery, making a copy of the General Ledger in violation of Section 31.05(b)(2) of

the Penal Code and communicating or transmitting the General Ledger in violation of

Section 31.05(b)(3) of the Penal Code.

COUNT VI
APPLICATION FOR INJUNCTIVE RELIEF

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 17
22
10.01 Plaintiffs incorporate the allegations set forth in paragraph 1.01 through

9.06 of this Original Petition.

10.02 Defendant has willfully and intentionally interfered with the rights of

Plaintiffs and breached common law and statutory obligations owed to Plaintiffs

10.03 Plaintiffs will suffer irreparable harm for which no adequate remedy at

law exists if Defendant is not enjoined from continuing his current course of action and

from exploiting TD Gallery’s confidential information and disrupting its relationships

with customers, artists, employees and others.

10.04 Even if Plaintiffs’ damages could be calculated and quantified, Plaintiffs

have no assurances that Defendant will be sufficiently solvent to provide adequate

relief.

10.05 A temporary restraining order, temporary injunction and permenant

injunction is necessary to preserve Plaintiffs’ rights.

10.06 There is a substantial likelihood that Plaintiffs will prevail on the merits

because Defendant has used and disclosed confidential information and improperly

interfered with Plaintiffs’ business, employees, customers and artists. Plaintiffs are

entitled to an injunction to require Defendant to cease his misappropriation, disclosure,

tortious interference and other tortious conduct. Wrongful, damaging conduct has

occurred and will continue to occur if not enjoined.

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 18
23
10.07 The threatened injury to Plaintiffs outweighs any possible damage to

Defendant. Defendant would lose nothing by such an injunction except that which he

cannot perform lawfully—disclosure of Plaintiffs’ confidential information and

interference with business relations.

10.08 The public interest is served by an injunction as it protects the substantial

investment made by Plaintiffs in developing a successful business in Dallas County,

Texas.

CLAIM FOR ATTORNEY'S FEES

11.01 By reason of the above and foregoing, Plaintiffs are entitled to recover

attorney’s fees in a sum that is reasonable in relation to the amount of work expended.

In this regard, Plaintiffs will show that counsel was engaged to assist in the prosecution

of this action and seek reasonable attorney’s fees.

PRAYER FOR RELIEF

Plaintiffs request the following equitable and legal relief:

1 That the Court, upon hearing, enter a temporary and then a permanent

injunction restraining and enjoining Defendant, his agents, servants, employees, and all

persons acting in concert with him from:

+ Broadcasting confidential information (including the General Ledger) of Dunn
and/or the TD Gallery to anyone, including but not limited to Plaintiffs’
business associates, clients, customers, vendors, artists and other persons;

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 19
24
* Disclosing, using, publishing or distributing any confidential business
information of Dunn and/or TD Gallery (including the General Ledger) derived
from or identified in any customer list, printed or electronic material, or other
information secured from Dunn and/or the TD Gallery or its present or past
employees, or using such information in order to encourage, persuade, induce
or invite artists or customers to refrain, cease or reduce doing business with the
TD Gallery and/or Dunn;

In any other manner using or disclosing any Confidential Information,
including any customer list or other Dunn and/or TD Gallery financial data;

Contacting artists, collectors, curators, clients, customers, vendors or other
business associates of Dunn and/or the TD Gallery with the intent to interfere,
disrupt or damage the existing or prospective business relationships that exist
between those artists, collectors, curators, clients, customers, vendors or other
business associates and Dunn and/or the TD Gallery;

Making, copying or reproducing in any way any confidential information,
including any customer or price list or general ledger, in whole or in part, or
other, whether in printed or electronic form, relating to Dunn and/or the TD
Gallery and secured from Dunn and/or the TD Gallery;

Failing to immediately return to Plaintiffs the originals and all copies of any of
Dunn’s and/or the TD Gallery’s Confidential Information, including, but not
limited to, all general ledgers, client lists, product and pricing information,
business plans, marketing materials, supplier lists and other trade secrets,
confidential information or financial data;

Prohibiting Defendant from publishing or distributing any information
obtained in violation of the Harmful Access by Computer Act and/or Chapter
33 of the Penal Code;

Intercepting or attempting to intercept the communications of Dunn through
the use of an electronic, mechanical or other device without the consent of a
party to the communication;

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF PAGE 20
25
¢Using or divulging information that Defendant knows or reasonably should
know was obtained by interception of the communication(s) in violation of
Section 123.002(a)(2) of the Interception of Communications Act;

Failing to immediately return to Dunn the originals and all copies of any
intercepted communications of Dunn that were obtained without her consent;
and

¢Making a copy of the General Ledger in violation of Section 31.05(b)(2) of the
Penal Code and/or communicating or transmitting the General Ledger in
violation of Section 31.05(b)(3) of the Penal Code.

2 That Plaintiffs recover their attorneys’ fees, as well as all costs of court,

pre-judgment interest, and such other and further relief, at law or in equity, to which it

may be justly entitled.

JACKSON LEWIS P.C.
500 N. Akard Street, Suite 2500
Dallas, Texas 75201
PH: (214) 520-2400
FX: (214) 520-2008

whaler
Dan Hartsfield
State Bar No. 09170800
dan.hartsfield@jacksonlewis.com
Talley Parker
State Bar No. 24065872
talley.parker@jacksonlewis.com

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF AND DAMAGES PAGE 21

26
STATE OF TEXAS §
§ VERIFICATION
COUNTY OF DALLAS §

BEFORE ME, the undersigned Notary Public, on this day personally appeared
Talley Dunn, who, after being duly sworn, stated under oath that she is a Plaintiff in the
above-styled action and a duly authorized agent and representative of the Talley Dunn
Gallery, L.L.C., that she has read the Verified Original Petition and Application for
Injunctive Relief and that the facts contained in the Petition, including the facts stated in
paragraphs 4.01 through 4.19, are true and correct and within her personal knowledge.
Tam also providing an affidavit in support of the request for injunctive relief.

In accord with Local Rule 2.02(b), I certify that I sincerely believe that notice to
Defendant would impair or annul the Court’s power to grant relief because the subject
matter of this petition (i.e., to stop improper distribution of confidential information,
business disparagement and tortious interference) could be accomplished. If Defendant
Miller is given advance notice of the application for injunctive relief, I believe he will
accelerate his publication of the confidential information prior to the entry of relief and/
or may destroy relevant evidence if notice was required.

Sod Liags ficenn) —

SUBSCRIBED AND SWORN TO BEFORE ME, the undersigned authority, on this

S day of February, 2015, to certify which witness my hand and official seal.

a DELANEY WATERS
MY COMMISSION EXPIRES
January9, 2017
eS

My Commission Expires:

Wali

VERIFIED ORIGINAL PETITION FOR INJUNCTIVE RELIEF AND DAMAGES PAGE 22

27
NO.

TALLEY DUNN GALLERY, L.L.C.
and TALLEY DUNN, IN THE DISTRICT COURT OF

Plaintiffs,
DALLAS COUNTY, TEXAS

BRADLEY B. MILLER, _____ JUDICIAL DISTRICT

Defendant.

AFFIDAVIT OF TALLEY DUNN
IN SUPPORT OF INJUNCTIVE RELIEF

On this day personally appeared, Talley Dunn, who, being by me duly sworn,

upon her oath, deposed and stated as follows:

1 My name is Virginia Talley Dunn. I am the sole owner of Talley Dunn

Gallery, L.L.C. located at 5020 Tracy Street (“TD Gallery”). I am also the sole owner of

WAG Partners, L.P. which owns the gallery property on Tracy Street. I have been a

practicing art dealer in Dallas, Texas since 1990, and my business has been located at

5020 Tracy Street since 1999, I have three full-time employees at the TD Gallery, and it is

open six days a week. I have built the TD Gallery into one of the most prominent

businesses of its kind in the region.

AFFIDAVIT OF TALLEY DUNN Page 1

EXHIBIT A
2. Iam recently divorced from Bradley B. Miller as of April 3, 2014, and I am

the mother of Virginia Miller who is seven years old. I am the primary financial

support for my daughter, as I provide all of her needs from housing to private school

education and all activities to her health insurance. My only source of income for

myself and my daughter is my business, the TD Gallery.

3 Since 2013, Bradley Miller has been on a public campaign to disparage me

and disrupt my business. On December 5, 2014, he emailed the entire 2013 General

Ledger for TD Gallery to clients of the gallery and community leaders. This 102 page

document is a private and confidential record of my business that was produced to him

during my divorce for the exclusive purposes of determining the business’s worth

during our settlement negotiations. During the divorce proceedings, it was subject to a

Confidentiality Order entered on December 9, 2013 by the 330th District Court of Dallas

County, Texas, which order was vacated and replaced by a Temporary Injunction

entered on February 4, 2014 that enjoined Defendant Miller from “making disparaging

remarks, whether oral or written, regarding” me or the TD Gallery.

4 The General Ledger that Mr. Miller has sent via email includes all activity

from my business for 2013. It included every vendor, client, and artist that worked with

the gallery that year. It details the amount of monies collected from clients and the

amount of monies distributed to artists that I represent. The document also details

AFFIDAVIT OF TALLEY DUNN Page 2

29
every source of income and expense for the gallery. All in all, it is a detailed report of all

business activity for 2013. This is an internal document that contains private and

confidential information. Sharing this document, as Mr. Miller has done, threatens my

business, particularly for those artists and clients who do not wish for this private

information to be made public.

5 In an email dated December 5, 2014, Mr. Miller emailed a gallery client

citing that her purchasing artwork from the TD Gallery had led directly to putting his

ninety-one year old father in the hospital. He wrote the following to the gallery client,

“please tak

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