Parkem Industrial Services, Inc. (“Par-kem”) filed this action against two of its former employees, Don Garton and Danny Tate, seeking a temporary restraining order, a tеmporary injunction and a permanent injunction to enforce a non-compete provision in their respective employment agreements. Thе suit was filed on 20 February 1980, and an ex parte, temporary restraining order enforcing the covenant was entered on the same day by the trial judge. After a hearing on 4 March 1980, thе trial court granted a temporary injunction on 19 March 1980. However, after a full hearing on the merits, the trial court rendered judgment on 5 May 1980 denying the permanent injunсtion. Parkem appeals from the trial court’s judgment denying the permanent injunction. We affirm.
The trial court made findings of fact and conclusions of law wherein thе court concluded, among other things: (1) that the 5-year/250-mile restrictions contained in *430 Garton and Tate’s employment agreements were unreasonable as to time and area; (2) that the restrictions were not reasonable and necessary to protect Parkem’s business; and (3) that Parkem has not and will not be irreparably harmed if Garton and Tate are allowed to compete with Parkem.
Parkem brings six points of error. By its second point, Parkem maintains that it conclusively established irreparable harm and, in the alternative, that the trial court’s failure to find irreparable harm is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
In this instance, one of the essential elements of Parkem’s cause of action for a pеrmanent injunction is a showing that it has suffered or will suffer irreparable harm for which there is no adequate remedy at law.
See Inman v. Padrezas,
In deciding the appellant’s “conclusive” contention, we must review the whole record to ascertain if the probative evidence establishes as a matter of law the asserted propositiоn. In this connection, the probative evidence must be sufficient to convince reasonable minds that there is no material fact issue concerning the asserted proposition; and, in a pragmatic effect, the evidence must be sufficient to support a directed verdict, a judgment notwithstanding the jury’s verdict or a summary judgment on the proposition. Conversely, the asserted proposition is for the fact-finder when the probative evidence in support of the proposition falls short of these legal standards or when there is any probative evidence to the contrary. Shop Rite Foods, Inc. v. The Upjohn Co., No. 9231 (Tex.Civ. App.—Amarillo, June 10, 1981) (On Motion for Reheаring).
The record shows that Parkem is in the business of industrial cleaning. In particular, it cleans internal chemical build-up from plant machinery using either a high-pressure, water-blasting technique or an acidizing technique. It has offices and equipment in strategic industrial/refining areas of Texas, Oklahoma and Louisiana. Of importance in this case is its yard located in Borger, Texas. There are no trade secrets, customer lists, or cleaning techniques peculiar to Parkem’s business. Par-kem’s business аrrangements with its larger customers are by “pricing agreements”, whereby an industrial plant or refinery agrees to pay Parkem a contractual price for its services; however, there is no firm agreement regarding the extent to which the customer will use Parkem’s services. Rather, Parkem is used on an “as needed” basis.
Pаrkem obtained the services of Mr. Gar-ton and Mr. Tate to work in its Borger yard. On 1 August 1975 and 1 December 1975, respectively, Garton and Tate executed employment agreements which are essentially identical but for the length of the term of the respective agreements and the compensation thereunder. Both contain a covenant not to compete which provides:
8.
EMPLOYEE’S COVENANT NOT TO COMPETE WITH EMPLOYER AFTER THE TERMINATION HEREOF
As a further material inducement to Employer [Parkem] to enter into this Agreement, Employee аgrees that for a period of Five (5) years from the termination of this Agreement he will not, within a 250 mile radius of the location of any of Employer’s yards, or sites of industrial cleaning operations, directly or indirectly *431 own, manage, operate, control, be employed by, participate in, be connected with, advise, invest in or render services to any business similar to the type of industrial cleaning business conducted by Employer during the term of this Agreement without the written consent of Employer.
In early February 1980, Mr. Garton informed Mr. Frank Whitfield, vice president of Parkem, that he and Mr. Tate intended to terminate their employment with Par-kem and that they intendеd to be employed by a competing business. After negotiations failed Garton and Tate resigned on 14 February 1980.
During the negotiations, Garton and Tate affirmatively stated that they intended to be employed by or become part owners of a competing industrial cleaning business in the Borger area. Don Garton testified that they would only compete by using two high-pressure water rigs. Of particular concern is Parkem’s account with the Phillips Petroleum Refinery in Borger, Texas. Mr. Whitfield testified that the income from servicing the refinery accounts for slightly over one-half of Parkem’s total annual income. Mr. Garton testified that a maintenance supervisor for the Phillips Refinery agreed to allow Garton and Tate to do “some work” at the refinery after they left Par-kem. Nevertheless, Phillips Petroleum has nevеr indicated, orally or in writing, that it will discontinue using Parkem’s services.
We agree that the record shows that over one-half of Parkem’s total annual income at its Bоrger facility is derived from the Phillips Refinery account and that, if the account was lost, Parkem would probably have to reduce its investment in the Borger yard, reduсe the number of its employees, or possibly even close the Borger operation altogether. However, as earlier stated, the record аlso shows that Phillips Petroleum has never indicated, orally or in writing, formally or informally, to discontinue using Parkem’s services or to reduce its present use.
The only evidеnce of harm, or possible harm, is the testimony of Mr. Garton to the effect that he and Mr. Tate intended to work at the refinery, and that the maintenance supеrintendent for the Phillips Refinery promised them “some work.” Furthermore, an official from Phillips Petroleum Company testified, in effect, that there is more than enough wоrk to go around. From this evidence, the trial court reasonably could have concluded: (1) that Parkem would not lose the Phillips Refinery account if Garton and Tate entered competition; and (2) that Garton and Tate’s intent to compete poses merely a possibility of harm and not an affirmative prospect of actual and substantial injury. Assuming, arguen-do, that Parkem established that Garton and Tate intended to compete with it, it did not establish as a matter of law, under thе appropriate legal standard set forth above, that it would suffer irreparable injury. In this instance, the question is for the fact-finder.
In deciding Parkem’s alternativе “great weight” challenge, we must consider all of the evidence in support of and contrary to the challenged finding to ascertain if such finding is so against the grеat weight and preponderance of the evidence as to be manifestly wrong or unjust.
Parrish v. Hunt,
In summary, wе overrule Parkem’s second point of error and its contentions made thereunder. Our disposition of the second point of error is dispositive of this appeal. Accordingly, the trial court’s judgment is affirmed.