*1 probably did cause lated HILL, C.J., and Before HICKS improper judgment rendition of an FARRAR, JJ. point case. We overrule sole error. OPINION judgment affirmed.

HILL, Justice. Chief Wright the forfei- appeals John P. He

ture of one 1976 Chevrolet automobile. point in a error that

contends sole by admitting into

trial court erred evidence containing “dope pad, supposedly

a note

notes,” He found the vehicle. pad the note constituted

contends hearsay testimony. TEXAS, OF WASH SYSTEMS CAR affirm because the State admit INC,

We Appellant, pad ted the note to show that vehicle notes,” pad “dope and was contained a BRIGANCE, offering the pad Appellee.

not to establish the truth David E. “dope within the notes” contained No. 2-93-085-CV. “hearsay” pad. Consequently, as statement, other than one made Appeals testifying declarant while at the trial or Fort Worth. hearing, prove truth of matter July 6, 1993. asserted, containing “dope pad the note hearsay notes” did constitute evidence.

TEX.R.CIV.EVID. gov

A forfeiture such as

erned civil rules. TEX.CODE See (Vernon 59.05(b)

CRIM.PROC.ANN. art. Therefore, assume,

Supp.1993). may we event, disregarded

any incompetent Gillespie evidence. (Tex.1982).

Gillespie, 644

Additional was introduced evidence Wright’s

showing connection cocaine vehicle, in

trafficking, relation plastic baggies

cluding con several small gray jewelry in a box

taining cocaine found seat; bag passenger’s

in a black training by officer with expressed his opinion

field of narcotics who baggies were sale distribu

tion; 4.58 and evidence there were

grams powder, grams of which 3.61 Also, and found be cocaine.

were tested “dope pad

testimony contained *2 Morrison,

Bush, Fulton, P.C., Hurlbut & Peter H. Fulton and L. Russell Robert Bush, Arlington, appellant. Jones, P.C., Hesse T. & Kevin White and Roush, Jr., Dallas, Edward for appellee. W. HILL, C.J., Before DAY FARRAR, JJ.

OPINION DAY, Justice. appeals

Car Inc. of a temporary from the trial court’s denial injunction against its former Brigance. David E. We reverse and re- entry mand to the court for the appropriate injunctive relief. hired February 20, 1984. On (the an plaintiff after to work for status from tinued Agreement), changed period”; “employment employee expiration dis- employee at will chargeable only original.] [Emphasis for cause. The non-compete contained both and non-disclo- extension of contract such *3 2, 1992, On sure covenants. November from the to be inferred would have notice, Brigance, prior resigned without parties, and conduct of the words and Systems immediately from Car and Wash is at this insufficient that evidence business, working competing began for support findings which would point to (Ulti- Inc. Systems, Ultimate Car Wash injunction; justify an mate). con- (9) therefore cannot the Court there is a reasonable basis clude that Brigance, seek- Systems

Car Wash sued ex- contract was to believe ing injunctive damages, alleging relief and oper- and acts which tended words non-compete agree- of the both violation language of the waive the ated to Brigance’s duty ment and breach of and the that amendments good employer. loyalty and faith to writing in have like would temporary trial issued a restrain- The court binding; order to be ing agree- order which was extended parties evidentiary (10) such a determination the ment of the until the without plaintiff hearing conclude that temporary injunction. on the Af- Court cannot subject to an im- evidentiary probable right trial hearing, ter the court has irreparable injury. application temporary injunc- denied the for mediate by entry following order: ap- It therefore ORDERED is 4,1993, injunction and plication temporary On for March came on be heard plaintiff’s application hereby prejudice DENIED for it is without damages for injunction. parties appeared by plaintiff’s claims for and upon through counsel, injunctive relief a trial testimony permanent and evi- considering dence was received. After on the merits. evidence, arguments briefs and 26th of March 1993. Signed day

counsel, as determines follows: designated the above order (1) plaintiff a common law Findings and Conclusions of its of Fact against of action defendant Law. damages

for for breach of his common Systems assigns as error law duty employer; towards his (1) holdings: Brigance’s trial court’s (2) duty ceases the cessation good faith duty loyalty breach of his support employment not will upon the termi- to his ceased injunction; and therefore nation of his (3) contract between injunctive re- support temporary not the plaintiff and defendant contains a lief, non-competeprovisions (2) and, clause; non-competition there is unen- were supported some evidence this was had not since forceable consideration; initial beyond its extended been (4) clause is limited duration term. year following cessation em- The Evidence period; ployment, which is a reasonable (5) geo- is limited in this clause hearing tempo- for at the The evidence extent; graphic essentially undisputed. rary injunction “employment period” called for Systems founded in Car in the contract was one Apperson. Apper- William and owned contract; provided extended as poor health. years age son Systems had years Car there is no extraneous evidence of Over the contract, group of customers although developed a substantial extension car it had constructed washes apparent it is the defendant con- whom and to parts, equipment, sup- which sold that Anderson would be the financial back- plies, repair services. Because of the er and would run Ultimate and economy competition, Sys- years. become a stockholder after three money tems lost in 1990 and resigning admitted that after enjoying profitable year it was and it had from Car Wash on November consolidating been successful in its bank 1992, he took orders from eleven Car Wash debt. Systems’ customers for Ultimate. These working After approximately eleven customers had done years several as an will $400,000 Bri- worth of business with Wash gance Agreement. executed the After Systems in further admit- *4 signing Agreement, Brigance became ted that he learned the name Car Wash Manager the Service who be termi- Systems’ prospect, construction Steve new only. Agree- nated “for cause” Andre, Once the employed while still at Car Wash signed, Systems ment was Car Wash con- Systems. Brigance gave the name of this Brigance key sidered to a be and prospect to Anderson and then contacted given he was to access information that to Andre solicit the construction for Ulti- proprietary was considered confiden- and pros- mate. admitted that a new servicing equipment tial. The of car wash pect for construction of a car wash is specialty and facilities area that re- very prize. difficult find and a real to quires prior knowledge, experience, and owner, Systems’ Ap- Car Wash William training. routing The books used Car person, that if permit- testified Systems Wash containing servicemen compete ted to Systems with Car Wash names and locations customers are keep the customers who are former Car proprietary marked and confidential. Car customers, Systems Wash it will jeopardize Systems list, Wash a maintains customer ability Systems’ repay to its Brigance acknowledged which is used on probably put company bank his debt and an “as-needed or need-to-know basis Systems out of business. Car Wash people filling orders.” employees six inwho turn have thirteen Brigance admitted that before his sudden Brigance, dependents. is married and who resignation 2,1992, he children, on November talked has three that if he were admitted Systems customers to, about required year he could wait a buying supplies him from when he went compete job work at some that does not own; into business his he told custom- Systems. Approximately with Car Wash Systems ers Car Wash the company was percent Systems’ seventy cus- having problems; financial he contacted 300 mile tomers are located within a radius suppliers Systems of Car go- Wash about Worth, of Fort Texas.

ing himself; into business for he did The feel Systems he owed Car Wash duty loyalty while he employed. Bri- Agree- provisions The controlling gance referring further admitted two cus- following para- ment are contained tomers of Car Wash to Ultimate graphs: employed by while he still Employment Agreement. 2. Term of Systems. shall The hereunder Ultimate, Brigance’s present employer, beginning as of the date period competes directly hereof, year with Car ending thereaf- repair ter, provid- construction and of car extended as expressly equipment washes and the sale of and sup- ed until herein such plies to car washes. 1992 Car Wash hereunder have been terminated as shall Systems had wash constructed car provided. hereinafter of EM- Allen Anderson. When became employment under PLOYEE’S Anderson, acquainted with the two of them “Employment called the Ultimate, structuring decided to form it so Period.” invalid or unen- adjudicated to be

shall be forceable, 10 shall be deemed this Section 7. Termination. reform delete or amended to therefrom Period shall terminate one to be invalid portion adjudicated thus unless extended thereaf- the date hereof unenforceable, or refor- otherwise such deletion ter from or agreed apply EMPLOYEE may mation to Notwith- approved partic- EMPLOYER. operation of this Section standing provisions other adjudica- jurisdiction in such ular (a) Agreement, shall have EMPLOYER is made. to terminate this any time for cause written notice EMPLOYEE Non-Disclosure. and, upon giving of EMPLOYEE that, while he is agrees notice, employment hereunder shall such thereafter, EMPLOYER and at all times (b) terminated, in the event of persons other than he not disclose to will EMPLOYEE, death of EMPLOYER, and will not employees or as of the date of shall terminate use, directly indirectly or al- himself death, his estate entitled to will be used, any informa- confidential low *5 any unpaid salary here- receive accrued EMPLOYER, re- tion or trade secrets of under to such date. The term “cause” in- gardless of whether the confidential purposes Agreement, of shall for the con- or trade have been formation secrets dishonesty, involving mor- mean offenses developed, part, in in or ceived or whole of turpitude, obey al failure to orders by or EMPLOYEE others. superiors or willful misconduct of the per- in the EMPLOYEE connection with here- 16. No variation Amendment. of his formance duties. writing in shall be deemed valid unless hereto, signed by parties the and no Not EM- Compete. 10. Covenant shall discharge of the terms hereof be hereby agrees period PLOYEE that for a performance by full deemed valid (1) year of one after the date of his parties by writing a by the hereto or employment by EMPLOYER has termi- signed by parties hereto. (the date”), he will nated “termination not, directly any or in indirectly, engage Review Standard of (whether part- proprietor, business a appeal Because an of an order venturer, ner, joint employer, agent, em- denying injunction granting or consultant, officer, ployee, beneficial order, interlocutory appeal from an is any any record owner of of the stock of case are not the merits of movant’s corporation, any or beneficial owner of appellate review. association) presented any in com- interest which is Manufac Kingston In Hanover petitive turers Trust Co. any in the business (Tex. 607, 819 610 Corp., in involved on vestors which EMPLOYER is 1991, writ). no App. date the termination within the State [1st Dist.] — Houston or, limited to whether strictly other in Texas state the United Our review clearly is en- its discretion. States in which EMPLOYER the trial court abused Org. termi- Anto gaged City such business on the Muslim San Iranian (Tex.1981). nio, 202, An nation date. 208 615 S.W.2d when the trial of discretion occurs abuse parties It is the desire intent of the misapplies the law to established Agreement to this the terms does not reason facts or when provisions of this Section 10 be enforced appli ably support the conclusion that fullest extent permissible to the recovery. has a State v. public by any cant policy applied the law and Co., 526 S.W.2d jurisdiction in Bell Tel. which enforcement Southwestern 526, (Tex.1975); if, Hano sought. Accordingly, to the ex- Manufacturers that, ver, any portion tent of this Section 819 S.W.2d time, Holding appropriate be terms must territory type activity; review, Following the above standard we find trial court erred con- (3)The promisee’s protection need for Agreement. struing the The trial court by outweighed must either hard- determined that promisor or ship injury likely to the terminated one from the date the public. February 20, was executed on Corp., DeSantis v. Wackenhut 793 S.W.2d there because was no written exten- (Tex.1990) (opinion 681-82 on reh’g), Agreement, sion of the and it was not denied, cert. 498 U.S. S.Ct. year. renewed at the end of the first (1991); 112 L.Ed.2d 775 Tex.Bus. & Com. arriving conclusion, at this the trial court 15.50(1) (2) (Vernon Supp. & § Ann. Code upon paragraph relied 1993) requiring any variations of the writing signed parties: by Agreement, pro As we view the No hereof Amendment. variation single for a vides writing shall be deemed valid unless in terminated the em hereto, signed parties and no ployer for end of cause. At the the em discharge of the terms shall be hereof ployment period, op had the performance deemed valid unless full tion to extend the for another parties by writing hereto or simply fail to extend. The parties [Emphasis hereto. Agreement requires formality in no order added.] place. If, for the extension to take on the The trial court reasoned that since addi- anniversary “term employ date of the *6 writing par- tional was ever the ment,” employee job the remains on the ties, expiration Agreement the ended at the him, employer employ and the to continues one-year specified of the term paragraph employment is extended for the 2. The trial court reasoned since the year, another since the states completion terminated after the employment period the shall terminate one term, one-year the the covenant year from un the date of the employment tacked on end of to the the year-to-year extended thereafter less long expired. had since We dis- agreed upon by parties. as the or otherwise agree. job security the employee Thus has for a anniversary year full after the date of the

The terms of a must be contract construed, has possible, something Agreement, employer op if to and the the mean nothing. keeping rather employee than Portland Gasoline tion of the another Co., 533, Superior Mktg. during Co. v. Tex. can only which termination 823, (Tex. 1951). par “good on a cause” basis. At the time 2, ties to presumed a contract cannot be to Brigance quit on November the deliberately agree have force, entered into an having was still in full calling impossible ment an condition or Brigance the been extended acts performance. event as a test Id. 243 previous Systems on the anniver S.W.2d at 825. sary date. enforceable, To contractual Brigance’s hold that it is clear We compete:

covenant not to agreement compete not to extends for one ancillary Must to an otherwise after terminated, valid or relationship; transaction has not one after employment period the terminates. To the The restraint created cove- compete greater hold otherwise would cause the non-com- nant not to must not be February necessary protect promis- pete period than is have run from (such Brigance legitimate February ee’s as while interests busi- 1988 to goodwill, ness trade secrets or other con- was still time full information) proprietary fidential or and Systems. Viewing “expressly ment extended.” virtually undisputed evidence was whole, I would not enforceability agreement of the as a

clearly establishes the pa the above of discretion for question covenant consider it an abuse Wash, clearly also rameters. Since determine that Car trial court to irreparable probable agreement, established intended author injunc- injury, was entitled extended absent the contract would not be relief. The trial is directed to tive agreement” between it and express “an temporary injunction in best, enter a accordance we At here effect. opinion. with implied agreement an to extend have require- seem not to meet that would HILL, C.J., dissents. concurs and ments an extension of the agreement. forth in the term as set Justice, HILL, concurring and Chief dissenting. also I believe that would not be for the trial court abuse of discretion respectfully part

I concur and dissent agreement if the have determined I to the ma- part. dissent longer effect were no concerning enforcement jority’s conclusion discharged been without I have non-competition because non-competition agreement and that determina- hold that the court’s I longer in effect. would overrule non-competition agreement point and affirm the longer was no in effect the time of of error number two Brigance’s denying termination does not constitute trial court’s order injunction enforcing non-competition abuse discretion. in the ma- agreement. I otherwise concur determination, That based con jority’s decision. presented, tract and the evidence as to employment agreement whether

still in effect at the time left Car employment, question

Wash’s difficult

of law and fact in which the full evidence yet developed hearing at final *7 merits. Our determination of that is in a contrary

sue manner to that premature constitutes decision beyond merits of case and Mid-States Peter JOLLY d/b/a permissible scope Key of our review. See Management, Appellant, Marketing Mgt., stone Ins. Life (Tex.App. no — Dallas Texas, Appellee. STATE writ). No. 3-92-544-CV. majority assumes that the employment period contemplated Appeals employment agreement was extended as a Austin. matter law because continued July Car Wash after one year period expired. had It cites no au- Aug. Rehearing Overruled does thority for its conclusion. It state agreement requires formality that the place. I

order for the extension to take paragraph agree- note 2 of the

ment states that later ends provided expressly extended as

“unless majority

herein....” referred showing agree-

us to