Texas Judiciary Online - HTML Opinion

Although Taylor admitted that, while = working for=20 SIKA, he has had discussions with several WRG customers, there is = no=20 evidence that WRG lost sales, marketing advantage, or goodwill, or = otherwise suffered an irreparable injury; or that it has no = adequate=20 remedy at law for any such violation. Under these = circumstances,^{^[7]} = there is=20 some basis upon which the trial court could have properly = concluded that a=20 temporary injunction on the non-solicitation claim was not = necessary to=20 maintain the status quo.^{^[8]} =20 See Brooks, 576 S.W.2d at 371; Davis, 571 S.W.2d at=20 863. Accordingly, WRG=3Ds second issue is overruled, and the = trial=20 court=3Ds order denying the temporary injunction = is=20 affirmed.

/s/ =20 Richard H. Edelman

Justice

Judgment rendered and = Memorandum Opinion filed May 17, 2007.

Panel consists of = Justices=20 Anderson, Fowler, and = Edelman. =20

^{^[1]} =20 See Tex. Civ. = Prac. &=20 Rem. Code Ann. ' 51.014(a)(4) (Vernon Supp. 2006).=20

^{^[2]} =20 Because the evidence adduced at the temporary injunction hearing = might=20 differ from that developed at a trial on the merits, a premature = review of=20 the merits in an appeal of a temporary injunction would = essentially deny=20 the parties their right to a jury trial. See Davis v. = Huey,=20 571 S.W.2d 859, 862 (Tex. 1978).

^{^[3]} =20 But see Ass=3Dn of Tex. Prof=3Dl Educators v. Kirby, 788 S.W.2d 827 (Tex. 1990) (reversing = the denial=20 of a temporary injunction upon a determination that House Bill = 2566 was=20 unconstitutional); Burch v. City of San Antonio, 518 S.W.2d = 540=20 (Tex. 1975) (reversing the denial of a temporary injunction upon a = determination that home rule cities do not have the authority to = delegate=20 power of eminent domain to subordinate agencies); Daniel v. = Goesl,=20 161 Tex. 490, 341 S.W.2d 892 (1960) (reversing the denial of a = temporary=20 injunction to prohibit a retired partner from violating a covenant = not to=20 compete).

^{^[4]} =20 An injury is irreparable if the injured party cannot be adequately = compensated in damages or if the damages cannot be measured by any = certain=20 pecuniary standard. See Butnaru, 84 S.W.3d at = 204. =20 Because company's loss of goodwill, clientele, marketing = techniques, and=20 office stability are not easily assigned a dollar value, they = qualify as=20 Aprobable injury@ for purposes of injunctive = relief. =20 Graham v. Mary Kay Inc., 25 S.W.3d 749, 753 (Tex. = App.CHouston [14 Dist.] 2000, pet. = denied). =20 However, the evidence must show an actual loss of goodwill, = clientele,=20 marketing techniques, or office stability to obtain injunctive=20 relief. See id. (holding that loss of goodwill and = business=20 stability was established by evidence that Graham actively sought = Mary Kay=20 salespersons who were willing to breach their contracts and sell = products=20 to Graham); see also Armendariz v. Mora, 526 S.W.2d 542, = 543 (Tex.=20 1975) (holding that applicant has the burden of offering some = evidence=20 establishing probable injury).

^{^[5]} =20 The parties do not dispute that the agreement=3Ds prohibition on use and disclosure of=20 confidential information was enforceable, only whether it was=20 violated.

^{^[6]} =20 See Tex. Bus. = & Com.=20 Code Ann. ' 15.50(a) (Vernon 2002) (stating = Aa covenant not to compete is enforceable = if it is=20 ancillary to or part of an otherwise enforceable agreement at the = time the=20 agreement is made . . .@).

^{^[7]} =20 Although the agreement contains language that stipulates = irreparable=20 injury if a breach of the agreement occurs, WRG does not rely on = this=20 provision in this appeal, and such stipulations have been held=20 insufficient to support a finding of irreparable harm for = injunctive=20 relief. See Dominion Video Satellite, Inc. v. Echostar = Satellite=20 Corp., 356 F.3d 1256, 1266 (10th Cir. 2004); Smith, Bucklin = &=20 Assocs., Inc v. Sonntag, 83 F.3d 476, 481 (D.C. Cir. 1996); = Baker's=20 Aid, Inc. v. Hussmann Foodservice Co., 830 F.2d 13, 16 (2d = Cir. 1987);=20 Traders Int=3Dl, Ltd. v. Scheuermann, No. H‑06‑1632, 2006 WL = 2521336, at *8 (S.D. Tex.=20 Aug. 30, 2006) (not designated for publication); Sec. Telecom = Corp. v.=20 Meziere, No. 05‑95‑01360‑CV, 1996 WL 87212, = at *2 (Tex.=20 App.CDallas Feb. 28, 1996, no writ.) (not = designated=20 for publication).

^{^[8]} =20 Whereas a presumption of irreparable damage has been held to apply = to the=20 breach of a covenant not to compete in the sale of a business, no = such=20 presumption attaches to restrictive covenants for discharged=20 employees. See Daniel v. Goesl, 341 S.W.2d at=20 = 896.