author: LAURA CARTER HIGLEY, Justice.

text:
    INEOS GROUP LTD., Ineos Technologies, Ineos Americas LLC, Ineos Manufacturing Belgium NV, Ineos LLC, Ineos Europe Limited, Ineos Polyethylene North America, Ineos USA LLC, and Ineos Olefins, LP, Appellants, v. CHEVRON PHILLIPS CHEMICAL COMPANY, LP, Appellee.
    No. 01-09-00504-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 17, 2009.

      David J. Beck, David M. Gunn, Joe W. Redden Jr., Matthew P. Whitley, Beck, Redden & Secrest, L.L.P., Houston, TX, S.R. Lewis Jr., Lewis & Williams L.L.P., Galveston, TX, for Appellants.
    Alton C. Todd, The Law Firm of Alton C. Todd, Friendswood, TX, Natalie L. Ar-baugh, Fish & Richardson P.C., Thomas M. Melsheimer, Dallas, TX, for Appellee.
    Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
   OPINION

LAURA CARTER HIGLEY, Justice.

INEOS appeals the trial court’s issuance of a temporary injunction prohibiting it from soliciting, negotiating, or entering into technology licensing agreements for a particular grade of polyethylene plastic made by using a certain manufacturing process. The temporary injunction is based on Chevron Phillips Chemical Company’s (“CPChem”) claim that the technology underlying this manufacturing process is derived from its trade secrets. In one issue, INEOS argues that the technology is no longer entitled to trade secret protection because, through a lack of vigilance, CPChem disclosed the technology to third parties, which are no longer required to keep the information confidential.

Because INEOS has not shown that the trial court abused its discretion by issuing the temporary injunction, we affirm.

Factual & Procedural Background

Beginning in the early 1950s, Phillips Petroleum Company, a corporate predecessor of CPChem, developed technology important to the manufacturing of polyethylene plastic. Phillips discovered that a chrome catalyst could be used to make high density polyethylene, a tough, durable plastic. In 1958, a Phillips engineer invented the loop slurry process for manufacturing high density polyethylene. This process had a number of advantages. It permitted high density polyethylene to be made more cheaply, more efficiently, more reliably, and in greater quantities than the previous process allowed.

In 2000, Chevron Chemical merged with Phillips to create CPChem. At that time, CPChem acquired the ownership rights to the loop slurry process. Since the 1950s, Phillips and CPChem have invested significant time and money to further develop the loop slurry technology.

Phillips provided the loop slurry technology to other chemical companies through licensing agreements. This enabled the licensee company to construct its own loop slurry plant to manufacture high density polyethylene. Under a licensing agreement, the licensee received a license package, which included the technical information necessary to construct a loop slurry plant. In the package, Phillips provided not only its most recent loop slurry technology to the licensee, but also provided its historical technical information reaching back to the 1950s. After a licensee had constructed its loop slurry plant, Phillips continued to share updated technical information with the licensee as the information was developed. Since 1958, Phillips and CPChem have entered into over 100 licensing agreements for the loop slurry technology. CPChem succeeded to the license interests of Phillips after the merger between Phillips Chemical and Chevron Chemical.

In the mid-1950s, Phillips entered into licensing agreements with Distillers Company Limited, Celanese Corporation, and an Italian company, Solvay. Under these agreements, Phillips provided technical information for the construction of polyethylene manufacturing plants. Each agreement contained a perpetual confidentiality provision, requiring the licensee to keep the technical information provided by Phillips confidential into perpetuity.

Phillips continued to share its technical information, including its loop slurry technology, with the licensees until 1974. Years later, the manufacturing plants constructed under the three licenses became part of a joint venture between Solvay and BP International Limited. In 2004, BP purchased Solva/s interest in the joint venture. BP then formed a separate company, Innovene, to hold the assets of the joint venture, including the plants constructed pursuant to the three licenses. The next year INEOS purchased Inno-vene. As a result, INEOS succeeded to the interests of the original licensees.

When it purchased Innovene, INEOS also acquired Innovene’s loop slurry process. INEOS soon began licensing the Innovene loop slurry technology to third parties. Pursuant to three separate licensing agreements, INEOS provided the Innovene loop slurry technology to three Chinese companies for the construction of polyethylene plants.

After learning of the licensing agreements, CPChem filed suit against INEOS for misappropriation of trade secrets and breach of contract. CPChem alleged that the loop slurry technology licensed by IN-EOS contained the loop slurry technology provided by Phillips to INEOS’s predecessors under the 1950s licenses. CPChem alleged that the loop slurry technology disclosed by INEOS to its licensees was CPChem’s trade secrets and confidential information. CPChem further claimed that INEOS’s licensing of the technology violated the perpetual confidentiality provisions of the three 1950s licensing agreements between Phillips and INEOS’s predecessors. CPChem sought permanent injunctive relief and damages.

After CPChem filed suit, INEOS continued to license the Innovene loop slurry technology to other companies. CPChem requested the trial court to grant a temporary injunction prohibiting INEOS from disclosing the Innovene loop slurry technology to any third party, including IN-EOS’s licensees, pending trial.

The trial court conducted an eight-day evidentiary hearing on CPChem’s application for temporary injunction. Among its grounds for opposition to the temporary injunction, INEOS argued that, over the years, CPChem failed to diligently maintain the secrecy of its loop slurry technology. INEOS cited agreements under which Phillips had disclosed its loop slurry technology without requiring the licensee to maintain the confidentiality of the teehnol-ogy into perpetuity. INEOS specifically relied on agreements signed by Phillips containing secrecy clauses that had expired years earlier.

CPChem responded that no evidence exists to show that the expiration of the confidentiality provisions resulted in the public disclosure of its loop slurry technology. CPChem offered evidence showing that the potential threat of disclosure of its trade secrets following the expiration of the confidentiality provisions had been ameliorated or neutralized with respect to each of the agreements cited by INEOS.

At the hearing’s conclusion, the trial court granted CPChem’s request for a temporary injunction. The trial court did not file findings of fact or conclusions of law, but determined in its order that CPChem “has established (a) viable causes of action against INEOS, (b) a probable right to the relief sought on those causes of action, and (c) a probable, imminent, and irreparable injury in the interim for which CPChem has no adequate remedy at law.”

In the order, the trial court narrowly tailored the injunctive relief granted to CPChem. Specifically, the trial court ordered that INEOS is

temporarily enjoined from soliciting, negotiating, or entering into licenses for monomodal high density polyethylene grade of 5502 having a melt index in the range of 0.3 to 0.4 and a density of 954-957 kilograms per cubic meter by whatever name made using a chrome catalyst in a loop slurry process.

INEOS appeals, challenging the temporary injunction in one issue.

Temporary Injunctions: Standard and Scope of Review

The sole issue presented to a trial court at a temporary injunction hearing is whether the applicant may preserve the status quo pending trial on the merits. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.2002); Davis v. Huey, 571 S.W.2d 859, 862 (Tex.1978). Whether to grant or deny a temporary injunction is within the trial court’s sound discretion. Butnaru, 84 S.W.3d at 204.

On appeal, the scope of review is limited to the validity of the temporary injunction order. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex.1993). We do not review the merits of the underlying case. Davis, 571 S.W.2d at 861. Instead, we determine whether there has been an abuse of discretion by the trial court in granting or denying the relief. Id. at 862. In making this determination, we may not substitute our judgment for that of the trial court unless its decision was so arbitrary that it exceeded the bounds of reasonableness. See Butnaru,, 84 S.W.3d at 204. Abuse of discretion does not exist if the trial court heard conflicting evidence, and evidence appears in the record that reasonably supports the trial court’s decision. Davis, 571 S.W.2d at 862; CRC-Evans Pipeline, Int’l, Inc. v. Myers, 927 S.W.2d 259, 262 (Tex.App.-Houston [1st Dist.] 1996, no writ). A trial court abuses its discretion in granting or denying a temporary injunction when it misapplies the law to the established facts. See State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex.1975). Given the abuse-of-discretion-standard, we review the evidence submitted to the trial court in the light most favorable to the court’s ruling, draw all legitimate inferences from the evidence, and defer to the trial court’s resolution of conflicting evidence. See Davis, 571 S.W.2d at 862; CRC-Evans Pipeline, Int’l, 927 S.W.2d at 262.

Probable Right of Relief

A temporary injunction is an extraordinary remedy that does not issue unless the party seeking relief pleads and proves three specific elements: (1) a cause of action, (2) a probable right to the relief sought, and (3) a probable, imminent, and irreparable injury in the interim. Butnaru, 84 S.W.3d at 204. To show a probable right of recovery, an applicant need not establish that it will finally prevail in the litigation, but it must, at the very least, present some evidence that, under the applicable rules of law, tends to support its cause of action. Camp v. Shannon, 162 Tex. 515, 348 S.W.2d 517, 519 (1961); see IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 197 (Tex.App.-Fort Worth 2005, no pet.).

In its sole issue, INEOS asserts that CPChem failed to demonstrate a probable right of relief on its misappropriation of trade secrets claim. More precisely, IN-EOS argues that CPChem failed to demonstrate that its loop slurry technology constitutes a trade secret.

A trade secret is “any formula, pattern, device or compilation of information which is used in one’s business and presents an opportunity to obtain an advantage over competitors who do not know or use it.” In re Bass, 113 S.W.3d 735, 739 (Tex.2003). To determine whether a trade secret exists, a court weighs six fact-intensive factors: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken to guard the secrecy of the information; (4) the value of the information to the business and to its competitors; (5) the amount of effort or money expended in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. See id. (citing Restatement of Torts § 757 cmt. b. (1939); Restatement (Third) of Unfair Competition § 89 reporter’s note cmt. d. (1995)). INEOS asserts that the first and third factors — the extent to which the information is known outside of the business and the extent of measures taken to guard the secrecy of the information — are of predominant consideration in this case.

INEOS acknowledges that CPChem’s loop slurry technology was at one time a trade secret. Nevertheless, INEOS asserts that the information lost trade secret status due to CPChem’s lack of vigilance with respect to guarding the secrecy of the information.

To support its argument, INEOS offered a number of agreements between Phillips and third-party companies. Several of these agreements contained fixed-term secrecy provisions, which required the other party to maintain the confidentiality of Phillips’s disclosed trade secrets for a set number of years.

At the time of the hearing, the period defined in each of these fixed-term secrecy clauses had expired. INEOS argued that, following the expiration of the secrecy provisions, the third parties, with whom Phillips had contracted, possessed CPChem’s trade-secret information without restriction and were free to publicly disclose it. INEOS asserted that the expiration of these clauses destroyed the trade secret status of CPChem’s technology.

CPChem responded that it had always been vigilant in maintaining the secrecy of its loop slurry technology. With respect to the agreements cited by INEOS, CPChem offered countervailing evidence to show that, under the unique circumstances of each, the secrecy of its technology remained intact, despite the expiration of the secrecy clauses.

We now turn to the record evidence regarding this issue.

At the temporary injunction hearing, INEOS introduced a number of agreements between Phillips and Japanese companies, Showa Denko and Showa Yuka. In 1956 and 1973, Phillips entered into licensing agreements with Showa Denko. Also in 1973, Phillips signed another licensing agreement with Showa Yuka; that agreement was later assigned to Showa Denko. All three licenses contained perpetual secrecy clauses.

In 1979, Showa Denko planned to sell one of its plants to another company, To-nen. Phillips agreed that Showa Denko could sublicense the technology it had obtained from Phillips under the earlier licenses. Phillips and Showa Denko signed an agreement in December 1979 permitting Showa Denko to sublicense Phillips’s technology to Tonen.

The agreement included the following provision addressing the issue of secrecy: “[Showa Denko] agrees to bind Tonen to secrecy with an agreement having a term of fifteen (15) years from the date of sale of the Kawasaki plant.” The December 1979 agreement also required Showa Den-ko to pay Phillips $1.5 million for the right to grant the sublicense to Tonen.

INEOS asserts that Showa Denko paid $1.5 million to Phillips specifically for the shortened secrecy term. INEOS cites the testimony of one of CPChem’s witnesses, Randy Lee Hagenson, CPChem’s Manager of Polyethylene Licensing, which supports this interpretation of the December 1979 agreement. INEOS relies on this interpretation of the agreement to support its argument that Phillips did not protect the secrecy of its technology. IN-EOS intimates that accepting the $1.5 million dollars in exchange for the shortened term is significant evidence because it shows an affirmative act with respect to the loss of secrecy, rather than a mere failure to act to protect it. However, such interpretation of the agreement between Phillips and Showa Denko is not supported by the express terms of the written agreement.

The December 1979 agreement between Showa Denko and Phillips did not specifically provide that Showa Denko was required to pay Phillips $1.5 million in exchange for a shortened secrecy requirement. Although the shortened secrecy requirement may have influenced the sum paid, the plain language of the agreement indicates that Showa Denko paid $1.5 million to Phillips in exchange for the right to grant a sublicense to To-nen. No mention is made in the agreement that the funds were paid specifically for the shortened secrecy requirement.

At the injunction hearing, CPChem proffered the testimony of Randy Lee Hagen-son, who testified that he is responsible for licensing the loop slurry process. He described his job responsibilities as “responding] to licensing opportunities around the world,” “writing] licenses for new opportunities,” and “supporting] existing licenses through various programs we have.”

CPChem offered Hagenson’s testimony to show that any trade-secret information that may have been transferred to Tonen had remained confidential, despite the expiration of the Tonen secrecy clause in 1994. Hagenson testified that Tonen, Sho-wa Denko, and Showa Yuka are now all owned by Japan Polyethylene, which is bound by the perpetual confidentiality provision in the 1956 Showa Denko licensing agreement. Although it is undisputed that Tonen was acquired by Japan Polyethylene at some point after the secrecy clause expired in 1994, CPChem’s evidence showed that it was unaware that any of its trade secrets had been publically disclosed as a result of the expiration of any fixed-term secrecy clause. This would necessarily include the Tonen agreement.

In his testimony, Hagenson also provided an example of how CPChem had acted to guard its technical information in the hands of the Japanese companies. Hagen-son testified that, when it learned that Showa Denko had sought to license the loop slurry technology to a another third-party, CPChem contacted Showa Denko to object. Showa Denko then assured CPChem that it would not attempt to license the technology in the future.

INEOS also offered agreements pertaining to the construction of a polyethylene plant in Basrah, Iraq. The first is a licensing agreement between Phillips and the Iraqi government’s Ministry of Industry and Minerals (“the Ministry”), signed in 1976. This agreement had a 25-year secrecy clause.

With regard to the agreement, Hagen-son testified that, the force majeure provision had been triggered due to war and civil unrest in Iraq, putting the agreement in “abeyance.” Hagenson indicated that, because of the force majeure, it was CPChem’s position that the “clock never started ticking” on the agreement; thus, the 25-year time period for the secrecy clause never began to run.

Hagenson also testified that, before the Iraqi polyethylene plant was built, Phillips and the Ministry entered into a new licensing agreement in 1988. This agreement contained a perpetual secrecy provision.

INEOS also introduced another agreement from 1976 relating to the construction of the Basrah plant. The Ministry had chosen contractors Lummus and Thys-sen to construct the plant. To facilitate construction, Phillips signed an agreement with Lummus and Thyssen to govern the disclosure of Phillips’s technology to the contractors. The agreement had a 25-year secrecy provision.

With respect to the contractors, Hagen-son testified that, by 1988, when the second agreement was signed containing the perpetual secrecy provision, Thyssen was no longer a contractor on the Basrah project, only Lummus remained. Hagenson testified that, by 1988, Thyssen “was out of the business” of contracting.

With respect to Lummus. Hagenson testified that CPChem has had many business dealings with the company since the Basrah project. In these dealings, Lum-mus has signed perpetual secrecy agreements with regard to the CPChem’s loop slurry technology. Hagenson testified that Lummus has never built a loop slurry plant without CPChem’s permission. And Hagenson has “never heard Lummus claim they got anything from [the] Iraq project,” with respect to CPChem’s technology.

INEOS also points to another document relating to the construction of the Basrah plant. INEOS introduced a form entitled “Secrecy Agreement,” which Phillips had forwarded to Lummus in 1978. Under the Secrecy Agreement, a subcontractor was required to keep Phillips’s confidential information secret for 25 years. Phillips requested that Lummus’s subcontractors sign the agreement before receiving Phillips’s confidential information on the Bas-rah project. However, INEOS did not introduce any agreements actually signed by a subcontractor or offer any evidence regarding which, if any, subcontractors had received Phillips’s trade secrets.

Lastly, INEOS offered another licensing agreement that had a limited term confidentiality provision. In 1976, Phillips signed a licensing agreement with the Norwegian company, Norpolefin. The agreement had a 25-year secrecy clause, which expired in 2001.

CPChem introduced evidence to show that it had taken corrective action to prevent disclosure of its technology under the Norpolefin agreement. In 2003, CPChem renegotiated the agreement with Norpole-fin’s successor, Borealis. Under the new agreement, the secrecy provision was extended by 50 years. The parties also agreed that the new secrecy provision would be retroactive. In addition, Borealis warranted that it had not disclosed any of CPChem’s confidential information.

On appeal, INEOS’s briefing focuses on the expired secrecy clauses. As it did at the hearing, INEOS posits that once the secrecy provisions in the various agreements expired, CPChem’s loop slurry technology lost trade secret status. INEOS asserts that the expired confidentiality provisions demonstrate a lack of vigilance by CPChem to guard the secrecy of its information. INEOS contends that such lack of vigilance is fatal to preserving a trade secret right. INEOS argues that, as a result, CPChem has not demonstrated a probable right of relief necessary to support a temporary injunction.

In its brief, INEOS accurately recites the legal principles on which it bases its position. We summarize these principles as follows:

• A trade secret must be a secret. See Luccous v. J.C. Kinley Co., 376 S.W.2d 336, 338 (Tex.1964) (“It is self-evident that the subject matter of a trade secret must be kept secret.”); Astoria Indus. of Iowa, Inc. v. SNF, Inc., 223 S.W.3d 616, 634 (Tex.App.-Fort Worth 2007, pet. denied) (“Before information can be termed a trade secret, there must be a substantial element of secrecy.”); Gonzales v. Zamora, 791 S.W.2d 258, 264 (Tex.App.-Corpus Christi 1990, no writ) (“[T]he key part of the definition of trade secret is secrecy.”).

• Vigilance in guarding the trade secret is required because, once the information is publically revealed through the owner’s lack of vigilance, it is no longer a trade secret; the element of secrecy is gone. See Computer Assoc. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 457 (Tex.1996) (“Vigilance in the area of trade secrets is required, particularly because once a trade secret is made public all ownership is lost.”); T-N-T Motor-sports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 22 (Tex.App.-Houston [1st Dist.] 1998, pet. dism’d) (“Courts have refused to give trade secret protection when the material or procedure sought to be protected has been publicly disclosed.”); see also Interox America v. PPG Indus., Inc., 736 F.2d 194, 202 (5th Cir.1984) (concluding that one who voluntarily discloses information or fails to take reasonable precautions to insure its secrecy cannot claim that information constituted trade secret).

• A trade secret owner may disclose trade secret information to a third party without risk of losing trade secret protection if the owner takes steps to insure the secrecy of the information. See Furr’s Inc. v. United Specialty Advertising Co., 385 S.W.2d 456, 459 (Tex.Civ.App.-El Paso 1964, writ ref'd n.r.e.) (“The owner of the secret must do something to protect himself. He will lose his secret by its disclosure unless it is done in some manner by which he creates a duty and places it on the other party not to further disclose or use it in violation of that duty.”).

• Courts have held that the unrestricted disclosure of trade-secret information to third parties, outside the context of a confidential relationship, destroys the trade-secret status of the information. See, e.g., Numed, Inc. v. McNutt, 724 S.W.2d 432, 435 (Tex.App.-Fort Worth 1987, no writ) (concluding that data not trade secret because owner had previously disclosed it in contracts to its customers); Interox America, 736 F.2d at 202 (considering owner’s past conduct of voluntarily giving third-party contractors manuals containing technical information to support conclusion that information not entitled to trade secret protection).

Although urged by INEOS, we may not apply these legal principles in this interlocutory appeal to determine whether CPChem’s loop slurry technology is a trade secret. See Davis, 571 S.W.2d at 861; see also Sharma v. Vinmar Int’l, Ltd., 231 S.W.3d 405, 423-24 (Tex.App.Houston [14th Dist.] 2007, no pet.). We also do not assume that the trial court made this determination. To the contrary, when deciding whether to grant trade-secret protection through a temporary injunction, a trial court does not determine whether the information sought to be protected is, in law and fact, a trade secret; rather, the trial court determines whether the applicant has established that the information is entitled to trade secret protection pending the trial on the merits. See Sharma, 231 S.W.3d at 424; IAC, Ltd., 160 S.W.3d at 197.

On appeal, the dispute is whether CPChem showed a probable right to the relief sought on its misappropriation of trade secrets claim, a necessary showing for it to obtain a temporary injunction. To show a probable right of recovery, as it relates to the trade secret element of its claim, CPChem was required to present some evidence in the trial court tending to show that it possessed a trade secret. See Camp, 348 S.W.2d at 519. The more specific dispute on appeal, as defined by IN-EOS’s briefing, is whether CPChem presented some evidence tending to show that it was sufficiently vigilant in guarding the secrecy of its loop slurry technology. See id. By issuing the temporary injunction, the trial court implicitly determined that CPChem made this showing. We must determine whether the trial court abused its discretion in reaching this conclusion.

At the center of the vigilance dispute are the expired secrecy clauses relied on by INEOS. CPChem presented evidence from which a reasonable inference could have been drawn that CPChem took steps to preserve the secrecy of its technology. CPChem presented evidence that it secured perpetual secrecy agreements from Lummus and obtained a 50-year secrecy agreement with Borealis. CPChem also warned Showa Denko not to disclose the loop slurry technology when Showa Denko appeared to be contemplating licensing the technology to a third party.

In addition, CPChem presented evidence indicating that it was justified in taking no action with respect to some of the expired secrecy provisions. In this regard, the evidence showed that any threat of disclosure or unauthorized use of CPChem’s trade secrets had already been neutralized by other circumstances.

CPChem’s evidence showed that it believed the 1976 agreement with the Ministry of Iraq, containing the 25-year secrecy clause, was held in abeyance due to force majeure. For this reason, CPChem introduced testimony indicating that the company believed that the time period on the secrecy provision was never triggered. CPChem also showed that it signed a new agreement with the Ministry in 1988 containing a perpetual secrecy provision.

CPChem also offered evidence demonstrating that it had reason to believe that any threat posed by the proposed 15-year secrecy clause in the proposed Tonen sub-license had been neutralized. Tonen is owned by Japanese Polyethylene, which owes a perpetual secrecy obligation to CPChem.

With regard to the remaining agreements cited by INEOS, no evidence was presented to show that CPChem’s trade secrets had been disclosed to the contracting party. Specifically, no evidence showed that Thyssen came into possession of CPChem’s technology while the original Iraqi agreement was in abeyance, and before Thyssen went out of the contracting business. No evidence was presented to show which, if any, subcontractors on the Basrah project received CPChem’s trade secrets or which, if any, signed the fixed-term secrecy form introduced by INEOS.

In addition, CPChem introduced testimony that it is unaware that any of the expired secrecy obligations cited by IN-EOS has resulted in the unauthorized public disclosure of its trade secrets. INEOS presented no evidence to the contrary. It is also undisputed that the vast majority of the licenses given by Phillips and CPChem over the past 50 years contain perpetual secrecy clauses. It is also noteworthy that CPChem introduced evidence detailing the strict security measures it has implemented and maintained over the years to keep its loop slurry technology confidential, aside from the secrecy agreements.

When an effort is made to keep material important to a particular business from competitors, trade secret protection is warranted. See Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552 (Tex.App.-Dallas 1993, no writ); Gonzales v. Zamora, 791 S.W.2d 258, 265 (Tex.App.-Corpus Christi 1990, no writ). After viewing the evidence submitted to the trial court in the light most favorable to the court’s ruling, drawing all legitimate inferences from the evidence, and deferring to the trial court’s resolution of conflicting evidence, we conclude that CPChem presented some evidence tending to show that it acted with vigilance to maintain the secrecy of its trade secrets. The trial court reasonably determined that (1) CPChem demonstrated a probable right to the relief sought and (2) CPChem’s loop slurry technology is entitled to trade secret protection pending trial on the merits. We hold that the trial court properly exercised its discretion in granting the temporary injunction.

We overrule INEOS’s sole issue.

Conclusion

We affirm the trial court’s order granting the temporary injunction.

      . INEOS Group Ltd., INEOS Technologies, INEOS Americas LLC, INEOS Manufacturing Belgium NV, INEOS LLC INEOS Europe Limited, INEOS Polyethylene North America, INEOS USA LLC, and INEOS Olefins, LP are defendants in the trial court and appellants on appeal. We refer to the companies collectively as INEOS.

      . A party may appeal from an interlocutory order of a district court that grants or denies a temporary injunction. See Tex Civ. Prac. & Rem.Code Ann. § 51.014(a)(4) (Vernon 2008).

      . At the hearing, CPChem cited seven examples of its trade secrets relating to its loop slurry process that INEOS is disclosing in its licensing packages.

      . We are reminded that, when the meaning of a contract is plain and unambiguous, a witness’s interpretation of the contract is immaterial. See Sun Oil Co. v. Madeley, 626 S.W.2d 726, 732 (Tex.1981); Nowlin v. Frost Nat’l Bank, 908 S.W.2d 283, 286 (Tex.App.-Houston [1st Dist.] 1995, no writ) (explaining that in absence of finding of ambiguity, affidavit stating meaning of contractual language is "irrelevant”).

      . INEOS points out that at the hearing it objected to Hagenson’s testimony regarding the 1988 agreement based on the best evidence rule. However, the record shows that Hagenson had testified regarding the 1988 agreement and its perpetual confidentiality provision earlier in the hearing without objection.

        . INEOS asserts that the trial court abused its discretion in granting the temporary injunction because it misapplied the law to the established facts. See State v. Sw. Bell Tel.

        Co., 526 S.W.2d 526, 528 (Tex.1975). INEOS argues that CPChem lost its trade secret as a matter of law. INEOS asserts that the underlying facts are established because it is undisputed that the cited secrecy clauses have expired. INEOS is only partly correct. While some of the facts may be characterized as established, many of the facts relevant to determining the questions of vigilance and secrecy are not. This is demonstrated by CPChem’s countervailing evidence offered with regard to the expired secrecy clauses, as discussed herein.

      . At oral argument, INEOS relied heavily on Purnell v. Thyssen Industrie AG Henschel for the proposition that CPChem’s trade secrets were destroyed when the secrecy clauses expired. No. 01-95-00125-CV, 1995 WL 622919, *5 (Tex.App.-Houston [1st Dist.] 1995, no writ) (not designated for publication). In Purnell, the trial court had granted a temporary injunction to protect the plaintiff’s trade secrets pending trial. Id. at *2-3. This Court reversed the trial court's order because the evidence showed that the plaintiff had failed to maintain the secrecy of its trade secrets by disclosing the information freely and without restriction to one of the defendants over the course of many years. Id. at *5. The plaintiff also never told the defendant that the information was confidential until it asked the defendant to sign a confidentiality agreement. Id. After the defendant refused to sign the confidentiality agreement, the plaintiff continued to give the defendant the information without any restrictions. Id. Such facts are absent in this case. Similarly, the pivotal facts argued by INEOS as destroying the secrecy of CPChem’s trade secrets are absent in Purnell. The defendants in Purnell did not rely on an expired secrecy clause in a contract with a non-party to demonstrate a lack of trade secret. Moreover, the plaintiff in Purnell introduced minimal, if any, evidence to show any measures it had taken to maintain the secrecy of its information. The factual differences between Purnell and this case compel us to conclude that Purnell is not controlling in this fact-intensive case.

      . In its brief, INEOS asserts, "Other jurisdictions agree that the expiration of such secrecy provisions kills the secret.” INEOS cites two federal cases from Massachusetts, DB Riley, Inc. v. AB Engineering Corp., 977 F.Supp. 84, 91 (D.Mass.1997) and Baystate Technologies, Inc. v. Bentley Systems, Inc., 946 F.Supp. 1079, 1093 (D.Mass.1996), and one state court opinion from Wisconsin, ECT International, Inc. v. Zwerlein, 228 Wis.2d 343, 597 N.W.2d 479, 484-85 (1999). These cases are inapposite to instant one. In Zwerlein, the defendant, who sought to utilize the trade secret information, was the same party who had the limited-term secrecy agreement with the trade secret owner. 597 N.W.2d at 484-85. The defendant was not relying on an expired secrecy clause in a third-party agreement, as INEOS does here. See id. In both DB Riley and Baystate Technologies, other significant evidence was introduced, besides the expired secrecy agreements, to show that the trade secret owner had been less than vigilant in maintaining the secrecy of its information. See DB Riley, 977 F.Supp. at 91; Baystate Tech., 946 F.Supp. at 1092-93. Here, INEOS relies entirely on the expired secrecy agreements with third-parties to show that CPChem lacked vigilance in maintaining its trade secrets. Moreover, the type of countervailing evidence offered by CPChem in this interlocutory matter appears to have been lacking in the cited cases.

      . By our decision today in this interlocutory appeal, we do not decide, nor do we imply, that CPChem will ultimately prevail on its claims.


source: Caselaw Access Project

author: JIM SHARP, Justice.

license: Public Domain

text:
    CITY OF HOUSTON, Appellant, v. Wallace Ray MACK, Jr. and Beryl B. Mack, Appellees.
    No. 01-09-00427-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Dec. 22, 2009.

      Cora Garcia, Houston, TX, for Appellant.
    Bruce D. Mosier, Mosier & McEnrue, P.C., J. Marcus Hill, Hill & Hill, Attorneys at Law, Houston, TX, Appellees.
    Panel consists of Justices JENNINGS, HIGLEY, and SHARP.
   OPINION

JIM SHARP, Justice.

Wallace Ray Mack Jr. and Beryl B. Mack (the “Macks”) filed suit against the City of Houston, claiming that a 2006 amendment to the City’s Code of Ordinances regulating development in flood-ways was an unconstitutional taking of their property, which is located in the floodway. The ordinance at issue was amended again in 2008, before the original filing of this litigation, and the Macks do not complain of any injury after the September 1 effective date of the 2008 amendment. The City filed a plea to the jurisdiction asserting, among other things, that the Macks’ claims were not ripe and that the trial court thus lacked jurisdiction to hear the case. The trial court denied the City’s plea to the jurisdiction, and this interlocutory appeal followed.

We affirm.

Background

The Macks own a 5.2796 acre tract of land in Harris County, Texas. The property has two residential single family homes located on it and was acquired by the Macks in 1992. The majority of the property is vacant land. The Macks allege in their Original Petition that they sought to sell the property to “persons desiring to develop the property and, in fact, had entered into a listing agreement with a local Real Estate Broker, but, because of the amendment to Chapter 19 of the City of Houston Code of Ordinances ... were unable to sell the property.”

The Macks argue that prior to October 1, 2006, the City of Houston’s Code of Ordinances (“Code”) restricted development within the floodway of the City but allowed the City Engineer to issue permits notwithstanding those restrictions. After Tropical Storm Allison, the Federal Emergency Management Agency (“FEMA”) undertook a study of the impact of the storm on some of the bayous and drainage channels in the City of Houston. As a result of this study, maps known as Flood Insurance Rate Maps (“FIRMs”) were prepared in 2006 and formally adopted on June 18, 2007. Before the creation of the FIRMs, the Macks property was not located in a floodway. The FIRMs, however, for the first time, placed the Macks’ property in a floodway. Effective October 1, 2006, the City amended the Code to further restrict development in the floodway. Houston, Tex., Ordinance 2006-894 (Aug. 30, 2006). Under the 2006 amendment, Code section 19-43(a)(2) prohibited the issuance of a permit for “development to be located in any floodway, ... if that development provides for ... [n]ew construction, additions to existing structures, or substantial improvement of any structure within the floodway....” Id. § 26. Code section 19-43(d) allowed the City Engineer to issue a permit, even if a permit application was denied under section 19-43(a)(2), so long as the general appeals board found and determined in writing that the improvement was insubstantial and would not increase flood levels during occurrence of the base flood nor impede the flow of floodwaters. Id.

Code section 19-20, as amended in 2006, provided in relevant part that “[vjariances shall not be granted for development within any floodway if the development cannot meet the requirements of section 19 — 43(b) of this Code.” Id. § 18. Code section 19-43(b) permitted building in a floodway only if “necessary to protect the health, safety and welfare of the general public.” Id.

On July 23, 2008, the Code was again amended to allow the City Engineer greater discretion in issuing permits for the development of vacant land within the floodways, if certain criteria are met. See Houston, Tex., Ordinance 2008-658, § 10 (July 23, 2008) (codified at Houston, Tex. Code of Ordinances § 19-43 (2009), available at http://www.municode.com/ resourees/gateway.asp?pid=10123 & sid=43). The July 23, 2008 ordinance amendments became effective September 1, 2008. Id. § 14.

The Macks filed suit against the City on September 30, 2008, alleging that after FEMA approved the new FIRMs, its property was within a newly delineated floodway. The Macks contend that, in light of that designation, the City’s 2006 amendments to section 19-43(a) of the Code prohibited the issuance of building permits to them for “new construction, additions to existing structures or substantial improvement of any structure” on their property. In addition, the Macks contend that the Code, as it applied until September 1, 2008, prohibited the City Engineer from issuing any building permits for such construction. The Macks allege that during that period of time, the City’s ordinance deprived them of the use, benefit, and enjoyment of their property, amounting to a taking without just compensation.

The City’s answer alleges that the Macks failed to exhaust the administrative remedies allowed by the Code. The City provided an affidavit from the City Engineer attesting that the Macks had not yet applied for a development permit for their property, that no such permit had been yet denied to them, and that no appeal had been taken from such a denial. The City also filed a plea to the jurisdiction contending that, although the Macks alleged that they intended to sell the property to someone who would want to develop it, the Macks did not allege any specific improvement or sale that was impacted by the 2006 amendment. The City further alleged that, because the Macks had not filed an application for a permit, nor had they yet appealed such a denial as allowed by the Code, their claims were not ripe and the trial court lacked jurisdiction to consider their petition. Finally, the City alleged that the 2008 amendment mooted the Macks’ claims as to the 2006 ordinance because the 2008 amendment significantly loosened the previous ordinance’s restrictions on development in the floodway.

In their response, the Macks did not dispute the fact that they did not apply to the City for building or development permits before they filed suit. However, the Macks claimed that, under the plain language of the 2006 ordinance, their intended use for the property was expressly forbidden and the Code allowed no discretion or variances under such circumstances. Therefore, the Macks argued, their application for a permit would have been futile. Furthermore, the Macks alleged that the enactment of the 2008 amendment was irrelevant because they had already sustained damages under the prior ordinance. After a hearing, the trial court denied the City’s plea to the jurisdiction.

Standard of Review

In its sole issue, the City challenges the trial court’s decision to deny its plea to the jurisdiction. A plea to the jurisdiction challenges the trial court’s authority to determine the subject matter of the action. See Tex. Dep’t of Transp, v. Jones, 8 S.W.3d 636, 638 (Tex.1999). The standard of review of an order granting a plea to the jurisdiction based on governmental immunity is de novo. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex.2002); Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). It is the plaintiffs burden to allege facts that affirmatively establish the trial court’s subject matter jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). In determining whether the plaintiff has met this burden, we look to the allegations in the plaintiffs pleadings, accept them as true, and construe them in favor of the plaintiff. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). While we must construe the allegations in favor of the plaintiff, we are not bound by legal conclusions. Tex. Natural Res. & Conservation Comm’n v. White, 13 S.W.3d 819, 822 (Tex.App.-Fort Worth 2000), rev’d on other grounds, 46 S.W.3d 864 (Tex.2001); Tex. Parks & Wildlife Dep’t v. Garrett Place, Inc., 972 S.W.2d 140, 143 (Tex.App.-Dallas 1998, no pet.); Salazar v. Morales, 900 S.W.2d 929, 932 (Tex.App.-Austin 1995, no pet.). If the pleadings are insufficient, the court should afford an opportunity to replead if the defects are potentially curable, but may dismiss if the pleadings affirmatively negate the existence of jurisdiction. Miranda, 133 S.W.3d at 226-27.

If the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court must consider relevant evidence submitted by the parties. Id. at 227. If the evidence creates a fact question regarding jurisdiction, the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact-finder. But, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 227-28. In reviewing the evidence presented in support of the plea to the jurisdiction, we take as true all evidence favorable to the non-movant. Id. at 228. We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Id. “[Tjhis standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).... By requiring the [governmental unit] to meet the summary judgment standard of proof in cases like this one, we protect the plaintiffs from having to put on their case simply to establish jurisdiction.” Id. (internal quotations and citation omitted); accord Dallas County v. Wadley, 168 S.W.3d 373, 377 (Tex.App.-Dallas 2005, pet. denied) (on a plea to the jurisdiction, “the burden is on the government to meet the summary judgment standard of proof’).

We remain mindful of the Texas Supreme Court’s admonishment that, although the plaintiffs claims may form the context against which the jurisdictional plea is determined, the plea generally “should be decided without delving into the merits of the case.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000). In general, “the proper function of a dilatory plea does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction.” Id. at 554.

Analysis

The Texas Constitution provides that no “person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made.” Tex. Const. art. I, § 17; Sheffield, Dev. Co., Inc. v. City of Glenn Heights, 140 S.W.3d 660, 669 (Tex.2004). Similarly, the Just Compensation Clause of the Fifth Amendment provides that “private property” shall not “be taken for public use without just compensation.” U.S. Const. amend. V. The Just Compensation Clause has been construed to apply to the states by operation of the Fourteenth Amendment. Mayhew, 964 S.W.2d at 933.

Inverse condemnation occurs when property is taken for public use without proper condemnation proceedings and the property owner attempts to recover compensation for that taking. City of Dallas v. Blanton, 200 S.W.3d 266, 271 (Tex.App.-Dallas 2006, no pet.). To state a cause of action for inverse condemnation, a plaintiff must allege: (1) an intentional governmental act; (2) that resulted in his property being taken, damaged, or destroyed; (3) for public use. Id. Although the Texas Constitution’s adequate compensation provision is worded differently than the Just Compensation Clause of the Fifth Amendment to the United States Constitution, the Texas Supreme Court has described them as comparable and generally looks to federal cases for guidance in takings cases. See Hallco Tex., Inc. v. McMullen County, 221 S.W.3d 50, 56 (Tex.2006); Sheffield, 140 S.W.3d at 669.

Are the Macks’ Takings Claims Ripe?

Ripeness is an element of subject matter jurisdiction and, as such, is subject to de novo review. Mayhew at 928-29. We look to the experience of the federal courts in determining the ripeness of constitutional challenges to land-use regulations. Id.

A regulatory-takings claim may challenge a land-use restriction on its face or as applied to particular property. Keystone Bituminous Coal Ass’n v. De-Benedictis, 480 U.S. 470, 494, 107 S.Ct. 1232, 1247, 94 L.Ed.2d 472 (1987) (recognizing “an important distinction between a claim that the mere enactment of a statute constitutes a taking and a claim that the particular impact of government action on a specific piece of property requires the payment of just compensation”); City of Corpus Christi v. Pub. Util. Comm’n, 51 S.W.3d 231, 247 (Tex.2001). A facial challenge is ripe when the restriction is imposed, but an as-applied claim is not ripe until the regulatory authority has made a final decision regarding the application of the regulation to the property. Compare Yee v. City of Escondido, 503 U.S. 519, 533-34, 112 S.Ct. 1522, 1531-32, 118 L.Ed.2d 153 (1992), with Williamson County Reg’l Planning Comm’n v. Hamilton Bank, 473 U.S. 172, 186, 105 S.Ct. 3108, 3116, 87 L.Ed.2d 126 (1985). The Macks claim their challenge is a facial challenge in which ripeness is not an issue. However, because the Macks do not allege that the sections of the Code at issue do not “substantially advance a legitimate state interest” no matter how they are applied, we construe the Macks’ claim as complaining that the Code, as applied to their property, amounts to an unconstitutional regulatory taking. See Yee, 503 U.S. at 533-34, 112 S.Ct. at 1531-32.

The City asserts that the trial court does not have subject matter jurisdiction because the Macks’ takings claims are not ripe for adjudication. Ripeness is a threshold issue that implicates subject matter jurisdiction. Patterson v. Planned Parenthood, 971 S.W.2d 439, 442 (Tex.1998). While the jurisdictional issue of standing focuses on who may bring an action, ripeness focuses on when that action may be brought. Waco Indep. School Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex.2000).

Ripeness concerns whether, at the time a lawsuit is brought, the facts have developed sufficiently such that an injury has occurred or is likely to occur, rather than being contingent or remote. Patterson, 971 S.W.2d at 442. To establish that a claim is ripe based on an injury that is likely to occur, the plaintiff -must demonstrate that the injury is imminent, direct, and immediate, and not merely remote, conjectural, or hypothetical. Gibson, 22 S.W.3d at 852. By focusing on the concreteness of injury, the ripeness doctrine allows a court to avoid premature adjudication and issuance of advisory opinions. Id.

On appeal, the City contends that the Macks have not alleged that they suffered a “concrete injury.” However, in their petition, the Macks allege they have been deprived of the “use benefit and enjoyment of the Property” and that the property’s value has been drastically reduced because “after the date of the amendment, Plaintiffs could neither construct any improvement in or upon the Property nor sell the Property to anyone who desired to construct any improvements in or upon the Property.” Moreover, the Macks allege that they had entered into a listing agreement with a local real estate broker in furtherance of their intention of selling the property for development.

Relying on Waco Independent School District v. Gibson, the City alleges,

The Macks’ takings claim — apparently based on some future hope of improving or selling their Property — is precisely the type of hypothetical, contingent claim that the ripeness doctrine is designed to preclude ... [T]he only injury that the Macks have asserted is some vague future hope of improving or selling the Property. Although the Macks assert that they intended to sell their Property to someone who desired to develop it, the Macks do not allege any specific improvement or sale that was impacted or impeded by the 2006 Amendment.

See 22 S.W.3d at 852 (“A ease is not ripe when determining whether the plaintiff has a concrete injury depends on contingent or hypothetical facts, or upon events that have not yet come to pass.”).

The record does not support the City’s contention. We are mindful that, in addition to viewing the Macks’ allegations in their favor, we must take as true all evidence favorable to the Macks and “indulge every reasonable inference and resolve any doubts in [their] favor.” See Miranda, 133 S.W.3d at 228.

The Macks alleged that their property was in a Houston floodway. They also alleged that the 2006 amendments deprived them of the “use, benefit, and enjoyment” of the property because they could not sell it to anyone who desired “to construct any improvements in or upon the property.” Considering these allegations as we must, we conclude that the Macks have alleged a “concrete injury.”

We recognize that in City of Houston v. HS Tejas, Ltd., we held that the plaintiff had not alleged a concrete injury arising from the enactment of the same flood-control provisions at issue here. 305 S.W.3d 178, 184-85 (Tex.App.-Houston [1st Dist.] 2009, no. pet. h.). However, HS Tejas is distinguishable from the instant case in that the plaintiff in HS Tejas provided no allegation, as do the Macks, of entering into an agreement with a broker for the sale of the property or taking any type of additional step toward the improvement or sale of the property.

The City also contends that the Macks’ claims are not ripe because they did not apply for a building permit, seek a variance, or request any other type of regulatory relief from the ordinance’s restrictions. The City relies on the legal principle that a regulatory takings claim is not ripe until there is a final decision by the regulatory agency regarding the application of the regulations to the property at issue. Citing Mayhew, the City contends that a determination whether the Macks’ property has been taken or impaired cannot be made until the City has denied the Macks’ application for a permit or a variance. See Mayhew, 964 S.W.2d at 929-30.

The Macks respond that applying for a permit or seeking a variance would have been futile because, under the subject Code provisions, the City or its agencies had no discretion to issue a building permit or variance for the Property. The Macks correctly point out that this Court has held that the futility exception applies to the 2006 flood-control provisions at issue here. See City of Houston v. Noonan, No. 01-08-01030-CV, 2009 WL 1424608, at *5 (Tex.App.-Houston [1st Dist.] May 21, 2009, no pet.) (mem. op.); City of Houston v. O’Fiel, No. 01-08-00242-CV, 2009 WL 214350, at *5 (Tex.App.-Houston [1st Dist.] Jan. 29, 2009, pet. filed) (mem. op.).

As in this case, the plaintiffs in Noonan and O’Fiel alleged that the 2006 flood-control provisions prohibited them from constructing a residential improvement on property located in a Houston floodway. Noonan, 2009 WL 1424608, at *1-2; O’Fiel, 2009 WL 214350, at *1-2. We held that the plaintiffs’ claims were ripe even though they had not sought or obtained a final decision regarding whether a permit or variance would be issued for the construction of residential improvements on the subject property. See Noonan, 2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5-6. We recognized that, because no City agency had discretion to issue a permit or a variance under the 2006 flood-control provisions, it would be futile for a landowner to apply for a building permit or to seek a variance to construct a residential improvement on property located within a Houston floodway. See Noonan, 2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5.

Our holdings in O’Fiel and Noonan control here. There are no meaningful distinctions between the claims alleged here and those alleged in Noonan and O’Fiel. Thus, for the reasons stated in Noonan and O’Fiel, we conclude that the Macks’ takings claims are ripe even though they did not formally apply for a building permit or seek a variance regarding the subject property. See Noonan, 2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5; see also City of Houston v. Norcini,—S.W.3d—,—(Tex.App.-Houston [1st Dist.] 2009) (mem. op.) (holding takings claim ripe where claimant alleged concrete plan to sell property to builder, had taken steps to sell property, but could not under 2006 amendment).

Lastly, the City contends that the Macks’ claims are “incapable of ripening” because the City Council amended Code section 19-43 in 2008. The 2008 amendment provides the City Engineer with some discretion to issue building permits for development of vacant land within floodways, if certain criteria are satisfied. See Houston, Tex.Code of Ordinances Houston, Tex., Ordinance 2008-658 (July 23, 2008) (codified at Houston, Tex.Code of Ordinances § 19-43 (2009)).

The City made this same argument in Noonan. See 2009 WL 1424608, at *6. We explained that, because Noo-nan’s claims under the 2006 amendment were ripe when he filed his suit, the 2008 amendment was irrelevant. See id. Similarly, the Macks’ claims under the 2006 amendment were ripe when they filed suit in September 2008. Thus, the 2008 amendment is “irrelevant” to the ripening of the Macks’ claims arising from the 2006 amendment. See id.

Conclusion

After viewing their allegations favorably, accepting their evidence as true, indulging every reasonable inference from their evidence, and resolving any doubts in their favor, we conclude that the Macks have alleged a concrete injury. See Miranda, 133 S.W.3d at 228. In addition, we conclude that the Macks were not required to apply for a building permit or to seek a variance for their claims to ripen. Given the provisions of the 2006 amendment, seeking a permit or variance would have been futile. See Noonan, 2009 WL 1424608, at *5; O’Fiel, 2009 WL 214350, at *5. Finally, the 2008 amendment has no relevance to whether the Macks’ claims under the 2006 amendment are ripe. See Noonan, 2009 WL 1424608, at *6. We conclude that the Macks’ claims were ripe when they filed suit. See id. We hold that the trial court properly denied the City’s jurisdictional challenge.

We overrule the City’s sole issue. We affirm the trial court’s order denying the City’s plea to the jurisdiction.

      . Tex. Civ. Prac. & Rem.Code Ann. § 51.014(a)(8) (Vernon 2007).

      . Section 19-43(d) now reads:
      (d) While the community acknowledges the increased risks associated with development on vacant land in the floodway, the city engineer shall issue a permit for such development in a floodway, or any special flood hazard area for which a floodway has not been designated, if the city engineer determines that:
      (1) The bottom of the lowest horizontal structural member of the structure will be elevated at least 18 inches above the base flood level;
      (2) The foundation system for the structure will be pier and beam construction;
      (3) The applicant has submitted an engineering analysis acceptable to the city engineer, certified by a professional engineer licensed in the State of Texas, that demonstrates that the applicant will provide flood-way conveyance offset volume at a rate defined by the city engineer. The floodway conveyance offset volume may be provided on the applicant’s site or at an off-site mitigation facility located within one-quarter mile upstream and in the same watershed as the site. If the applicant chooses to provide off-site mitigation, the applicant shall also comply with the requirements of section 19-17(c).
      Houston, Tex.Code of Ordinances § 19-43 (2009), available at http://www.municode. com/resources/gateway.asp?pid= 10123 & sid=43.

      . We emphasize that our analysis and ultimate holding in this interlocutory appeal are limited to the jurisdictional issue. We intend no comment on the ultimate merits of the Macks' takings claims, including whether the Macks have actually suffered a taking of their property. We determine only whether the Macks’ claims are ripe.

      . The City also asserts that the 2008 amendment "essentially mooted” the Macks’ claims. "A case becomes moot if a controversy ceases to exist or the parties lack a legally cognizable interest in the outcome." Allstate Ins. Co. v. Hallman, 159 S.W.3d 640, 642 (Tex.2005). In their brief, the Macks aver that the “damage was caused by the amendment of the ordinance on October 1, 2006, and continued, unabated, until the City of Houston once again amended its ordinance on September 1, 2008....” They assert, "The latter amendment may have mitigated future damage to the Macks but could not have rectified the injuries it had already caused.” Id. We agree that a live controversy still exists regarding whether the Macks suffered a compensable injury as a result of the enactment of the 2006 amendment, irrespective of the 2008 amendment.