*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.
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.