*1 adopt Mrs. to appellant, Watkins grounds therefore find no on reversal Billy L. GILLEN and jury’s Special basis of the answer to Jarvis, Appellants, Issue Number One. Appellant has more raised one DIADRILL, INC., Appellee.

point in her Rehearing Motion for No. 1923. warrants further discussion this Court. that, It is true technically. Special Issue Texas, Appeals Court

Number Two was not made conditional Corpus Christi. upon However, Special Issue Number One. all examining case law directs that when Sept. 1981. conflict, issues in search a fatal issues 29, 1981. Rehearing Denied Oct. must be to when compatible construed be 30, 1981. Rehearing ever Denied Nov. possible. negative Spe to Second The answer cial clearly Issue One Number seems jury, considering

indicate that the after agree failed to find

ment to adopt. Special The answer to Issue e., Two,

Number that i. there was reliance

by appellant adopt, an agreement on

does necessarily assume that such an

agreement exist, simply did believed, reason,

lant perhaps without

there agreement. was such an Further

more, Supreme the Texas Court in Little Manufacturing

rock Furniture Dunn, Co. v. (Tex.1949), adopted

following test for determining whether or

not issues were in fatal conflict: is, taking test... whether

finding instance, judg- alone in one

ment should be entered in favor

plaintiff; taking it alone in the oth-

er, judgment should be favor entered in

of the defendant. case,

In this jury’s negative answer

Special effectively Issue Number One de-

feats appellant’s cause of action based

equitable however, adoption; it cannot jury’s

assumed from the answer affirmative Special Number Issue Two that adopt exist, did and based on

the jury’s question judgment answer

could not properly have been entered appellant.

favor of We therefore conclude Special no fatal conflict exists between

Issues Number One and Two. Rehearing Motion for is overruled. *2 not, of his will employment

mination he directly indirectly, through or either director, or ownership.... kind as a consultant, officer, agent, engage the business competi- marketing products which are *3 by EM- products tive with marketed is his employment PLOYER at the time terminated, marketing area within the during the by served the EMPLOYEE period employment by of his EMPLOY- Norton, Thomasson, Gary, Hall & ER. that the rem- expressly agreed It Marks, Christi, Corpus for appellants. edy law breach of this covenant at for Jr., Head, Kendrick, Michael Kendrick & inadequate injunctive relief and that Head, Christi, Corpus for appellee. prevent shall be available to the breach ours) (Underlining thereof.” NYE, J., Before C. and UTTER and appellant accepted posi- a Subsequently, KENNEDY, JJ. appellee’s competitor tion with Davis and Gillen, Hicks. The evidence showed that at OPINION employment the time of of his termination UTTER, Justice. records, including certain appellee, took appeal This is an from order granting an lists, records, price inventory pictures of a temporary injunction. The suit was bits, appellee’s bit performance and records Diadrill, brought appellee, Inc., by against showing the names of customers. appellee’s two of its employees, Billy former L. Gillen The further shows that he had solic- record Jarvis, and Gary appellants, to enforce a ited from at least one and obtained business one-year non-competitive agree- restrictive of appellee’s of on behalf Davis customers ment. After the hearing the trial court and Hicks. temporary determined that a injunction granted should be agreement but that the limited to review in this case is Our should be period (9) modified to a of nine the of the trial court determination whether appellant months as to L. Billy tempo Gillen and abused its discretion in the granting period to a of (6) six as appellant rary injunction. months We our cannot substitute Gary Jarvis. As appeal Gary judgment to the of of trial Texas for that the court. Jarvis, enjoining the court order him for & F. six Foundries v. International Moulders (6) Wkrs., (Tex. months has lapsed therefore his appeal is 1952). moot. Gillen, appellant during the summer error are points main employment executed an contract compete was (1) the covenant not to appellee

with employed by appellee was the specific enough as to items March, until 1981at which time his services (2) the trial court protected; were to be were terminated. The covenant not compete not to enlarged upon the covenant compete contained in employment the providing serv- by enjoining appellant from agreement is as follows: operational tech- ices and instructions compete. (3)

“6. Covenant not to niques; In evidence was insufficient event that the employment grant of EMPLOY- for the trial court to issuance appellant injunction restraining EE hereunder shall any temporary terminate for reason, whether and instructions in expiration providing because of from services otherwise, techniques this such drill bits in operational EM- secrets; agrees during period PLOYEE trade did not constitute (12) (4) of twelve the court’s order following specified months the ter- the area unreasonable; providing services instructions in (5) from employ- and when an techniques. It is admitted operational employment agreement er is in.breach of an there was a employer injunc- is not entitled to testimony as the amount in the conflict tion. advice, degree of the technical informa- By signing compete the covenant not to expertise acquired by appellant tion or “engage in the busi- agreed not to employment to the which was attributable products of developing marketing ness appellee. with The trial court resolved which are mar- competitive products were against appellant. There conflict employ- keted by employer at the time his re- findings of fact or conclusions of law ment is terminated”. As evidenced quested or in this cause. Under these filed record in this case the art of the state of ruling circumstances the trial court’s should is in a phase technical of the oil business disturbed, absent an abuse of discre- not be improved constant need for new and meth- *4 Huey, tion. As stated in Davis v. 571 drilling Drilling ods of for oil. bits are an (Tex.1978): 859 S.W.2d integral part development. of this It appellate may “The court not substitute impossible day day tell what new from judgment that of the trial court. its ideas will come forth and how will Texas Foundries v. International Mould- implement practices procedures Wkrs., supra. An abuse of dis- ers & F. in now use. not exist where the trial cretion does “marketing”. This is also true term of the conflicting its decisions on court bases Different require circumstances different Phillips, v. 529 Zmotony evidence. marketing techniques, information Here, (Tex.1975). as no find- 760 S.W.2d data. may encompass It also more diversi- of law were ings of fact or conclusions fied methods of dissemination of informa- filed, judgment must be the trial court tion in some compared businesses as oth- theory supported by upheld any legal non-competitive agree- Therefore a ers.. Seaman, v. 425 the record. Seaman ment of type impractical it would be if (Tex.1968).” 339 S.W.2d impossible particularize not each and ev- we believe this the evidence Under ery phase developing marketing which obligations of the enlargement was not would need to be identified in order to non-competition agree imposed under the protect employers’ interest. an abuse of ment and did not constitute court, hearing The trial after Company discretion. Weatherford Oil Tool specifically limited 310, 950 340 S.W.2d Campbell, v. engaging lant from in selling, in business Pugh, v. 490 (Tex.1960); Arrow Chemical items; marketing as to three 1972, (Tex.Civ.App.—Dallas no 628 S.W.2d bits, drill stabilizers and cement mills. Un Stores, 306 writ); Askin S.W.2d Obsowitz v. der the law it was upon incumbent the trial 1957, writ (Tex.Civ.App.—Eastland 923 particularize court to specific activities Exterminating ref’d) v. and Grace Orkin from which the was to be en Co., (Tex.Civ.App.—Beau 255 279 S.W.2d joined. We hold the non-competitive 1953, ref’d, n.r.e.). mont writ agreement was not overbroad as to the in contends that Appellant further specific interests to thereun protected available in generally formation which is Continental, Allert, der. Coiffure Inc. a valid the basis of industry cannot be 1975, 518 (Tex.Civ.App.—Dallas S.W.2d 942 citing compete, covenant not Custom ref’d, n.r.e.) writ Toch v. Eric Schuster Hardwick, Drapery Company Corporation, (Tex.Civ.App. 490 S.W.2d 618 (Tex.Civ.App.—Houston 160 District] [1st ref’d, —Dallas n.r.e.). writ writ). in this case no The evidence Appellant manufac development, next claims that the trial that the establishes highly court’s a enlarged upon turing selling order the covenant of drill bits is compete by prohibiting appellant competitive It is clear that business. 263 experience gained by appellant undisputed would en- evidence his em during or another had at one time able employer, new Davis and or made ployment with worked Hicks, to opera- use the information in their appel- with customers on behalf contacts result, tion and as a Davis and Hicks would court’s in the trial lee in areas set forth competitive become more peri- in a shorter clearly question order. The covenant od of likely time than would be the case peri for a appellant agrees, states that the without the appellant. services of year compete not to od of one The following definition of a “trade se- a contract Appellant signed appellee. cret” from the American Law Institute Re- would the covenant provided that which statement of Law has approved: been “served marketing areas apply to the employ his during period “A may trade secret for- consist repeatedly employer”. It has been ment mula, pattern, device compilation non-competition a held that information gives him an opportu- employ in the areas where enforceable nity to obtain an advantage competi- over employer. his former ee had worked for tors who do not know or it. It may use Services, Inc., Martin v. Kidde Sales and be a formula compound, for chemical a (Tex.Civ.App. 496 S.W.2d 714 — Waco process of manufacturing, treating or Reading Acade writ); Speed no American preserving materials, pattern a for ma- Holst, (Tex.Civ. my, Inc. v. device, chine or other or a list of custom- 1973, writ); Whites v. App. — Beaumont ers.” Company, 480 S.W.2d Engraving Star *5 Hyde Corporation Huffines, See v. 158 Tex. 1972, no (Tex.Civ.App. Corpus Christi — 566, 314 (Tex.1958); S.W.2d 763 K & G Oil writ). that the area Accordingly, we hold Tool and Service Company v. Fishing temporary G & G court in its specified by the trial Service, 594, Tool 158 Tex. not con injunction 314 782 reasonable and did S.W.2d (1958); International, West stitute an abuse of discretion. Pennyrich v. Inc., 447 S.W.2d 771 (Tex.Civ.App. that — Waco contends Finally, 1969, writ); Eater, and Weed Inc. v. contract and there appellee is in breach of Dowling, 562 S.W.2d 898 (Tex.Civ.App.— injunctive Ap relief. entitled to fore is not 1978, Houston writ ref’d n.r. fees and [1st that certain pellant’s position District] is

e.). These cases hold that it vacation had pay is not essential termination or earned v. that In process the been received him. Omohundro subject be patent for it Matthews, 367, 401 341 S.W.2d protected as a trade secret. stated: (Tex.1960) Supreme Court the Texas Appellant’s point next of error con suit, the complaining.. . of to a party “The involved, tends that the area is unreason that he him conduct. .. must show latter’s able. The test for determining whether a clean hands injured.. .”. The self has been non-competitive clause is reasonable is set ap the when applied not be maxim should out in Weatherford Oil v. Company Tool and seriously harmed not been pellant has Campbell, supra, 951, 340 p. where of can be corrected. wrong complained the the court stated: (Tex.Civ. 900 Rodgers Tracy, 242 S.W.2d “. .. the test usually stated for determin- ref’d, n.r.e.), cit 1951, writ App. — Amarillo ing the validity of a 484, covenant... is 95, found P. now ing Equity § C.J.S. whether it imposes upon 95, (1965); the P. 1026 Equity at 30 C.J.S. § any greater Gafas, Houston, restraint than of Inc. reasonably is Norris necessary (Tex.Civ.App. protect the District] business and [1st — Houston ref’d, n.r.e.). writ good will of employer... the a restraint of trade is greater unreasonable if it is the trial hearing After the than required protection for the grant- of this issue in favor court resolved person for whose benefit the restraint has not ing injunction. the imposed imposes or a new hardship upon agree met test forth above. We the set person the restricted.” findings. with the trial court’s If, instance, carefully assignment

We have reviewed the this pleadings of of the appellee, points might having error be considered as some of error and the evidence introduced at the merit, we order believe that court’s hearing on the temporary injunction. We properly stated reasons for the issuance of hold pleadings and the evidence injunction. The reasons for temporary present a probable right case of proba- injunction temporary the issuance of the ble injury. Appellant’s points are over- precisely are not as worded or artfully ruled. order phrased as we would like the court’s order, However, when to be. the court’s judgment of the trial court is af- states, context, firmed. for the read in as reason temporary injunction, issuance of the probably irreparable sustain “will OPINION ON MOTION FOR business”, injury if damage its REHEARING engage lant is allowed continue Appellant point contends in his third selling manner in the error in his rehearing motion for that this in the products techniques set forth Court ruling tempo- erred in not that the injunction. temporary We believe this rary injunction was invalid the in- because compliance recitation is a sufficient junction failed to why set forth the reasons requirements T.R.C.P. to Rule or how harm or injury would be suffered if prevent a reversal. the temporary injunction was denied. In this regard appellant points We have considered all of the point refers us to eighteen error original rehearing in his brief as motion for are over- basis of argument. original In his ruled.

points nineteen, eighteen ap- error

pellant contended temporary in-

junction failed to state the why reasons

how injury harm or would be suffered

Diadrill required by T.R.C.P., as Rule

and that supports no finding evidence probable injury to Diadrill is immi-

nently threatened. In the restatement points, of the ERVIN, Patsy Appellant,

appellant combines the two in a multifar point ious though error. Even complained of the failure of the trial court ERVIN, Appellee. error, follow Rule point in this thrust appellant’s argument and brief No. 5654. under this point only concerned the no evi Texas, Appeals Court of aspect dence appellant’s case. Since Eastland. point argued of error was briefed and as a point, no evidence point we treated the Sept. 1981. error as such procedural point. and not as a 15, 1981. Rehearing Denied Oct. Appellant in his motion for rehear ing, time, for the first relies on the proce aspect

dural point of this of error. An

assignment of error raised the first time rehearing motion for

the Court of Appeals is too late to be con Wright Gernandt,

sidered. (Tex.Civ.App.—Corpus Christi

writ), and authorities cited therein.