[Croft] shall not, directly or =
indirectly, engage=20
or invest in, own, manage, operate, finance, control, or =
participate in=20
the ownership, management, operation, financing, or control of, be =
employed by, or render services or advice or other aid to, or =
guarantee=20
any obligation of, any person engaged in or planning to become =
engaged in=20
any other business located within a 200 mile radius of Kirvin, =
Texas, that=20
is in competition with any business carried on by the Corporation =
or any=20
of its affiliates (each a =E2=80=9CCompeting Business=E2=80=9D) . =
. . .
Neither =E2=80=9CCorporation=E2=80=9D =
nor =E2=80=9CCompeting Business=E2=80=9D is=20
defined in the stock purchase agreement or the non-competition=20
agreement.
<=
/SPAN>After=20
the sale, Croft began working as a consultant for Valence =
Operating=20
Company, which had been one of Croft Services=E2=80=99 largest =
customers for three=20
years prior to the sale. Croft consulted as a subcontractor for =
EMS, which=20
billed Valence directly and then paid Croft, less its markup and =
25% share=20
of his fees. As a consultant for Valence, Croft did the same kind =
of work=20
that he had done prior to the sale of his company. =
<=
/SPAN>In=20
fall 2006, Croft resigned as a subcontractor for EMS, and he =
accepted a=20
position as a field foreman for Valence, i.e., as a =
salaried,=20
direct employee of Valence. Croft testified that none of his =
field-foreman=20
work is the same as the work he did for Valence before the sale of =
his=20
company. As a field foreman, Croft authorizes contractors to do =
certain=20
jobs, ordinarily selecting them from a Valence-approved vendor =
list. Croft=20
testified that he assigned all pneumatic safety system work to EMS =
until=20
EMS sued him.
<=
/SPAN>In=20
March 2007, EMS and Croft Services sued Croft for breach of the=20
noncompetition agreement. In addition, they sought a temporary =
injunction=20
to prohibit Croft from deleting information from his computers and =
from=20
=E2=80=9Cengaging in competition in violation of the [stock =
purchase agreement]=20
and the Non-Competition Agreement.=E2=80=9D
<=
/SPAN>After=20
granting a temporary restraining order, the trial court held an=20
evidentiary hearing in April 2007 on the application for temporary =
injunction. At the hearing, Harvey Schnitzer, EMS=E2=80=99s chief =
financial=20
officer, testified that EMS had seen a steep decline in revenue =
from=20
Valence since Croft had become a Valence employee. He also =
testified that=20
if Croft were to solicit business from other clients, Croft =
Services would=20
suffer, but he could not quantify the damage. EMS and Croft =
Services=20
argued that they were irreparably harmed by Croft=E2=80=99s =
actions because of the=20
decline in business and because Croft=E2=80=99s actions =
established a precedent=20
that could, in the future, lead Croft to start a new business to =
compete=20
directly with EMS and Croft Services.
<=
/SPAN>The=20
trial court denied the application for temporary injunction =
without=20
findings of fact or conclusions of law. The trial court, did, =
however,=20
cite John R. Ray & Sons, Inc. v. Stroman, which held a=20
non-competition agreement unenforceable. 923 S.W.2d 80, =
84=E2=80=9386 (Tex.=20
App.=E2=80=94Houston [14th Dist.] 1996, writ denied). EMS and =
Croft Services=20
appealed.
Standard of=20
Review
<=
/SPAN>We=20
review the denial of an application for temporary injunction for =
abuse of=20
discretion. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 =
(Tex.=20
2002). A trial court abuses its discretion when it acts without =
reference=20
to guiding rules or principles; a trial court does not abuse its=20
discretion if some evidence reasonably supports its decision. =
Id.=20
In an interlocutory appeal from the grant or denial of an =
application=20
for temporary injunction, we decide only whether the court abused =
its=20
discretion: we do not resolve the merits of the underlying case. =
Tex.=20
Indus. Gas v. Phoenix Metallurgical Corp., 828 S.W.2d 529, 532 =
(Tex.=20
App.=E2=80=94Houston [1st Dist.] 1992, no=20
writ). Therefore, we do not reach the ultimate issue =
of=20
whether the noncompetition agreement is enforceable under Texas =
law.=20
Reach Group, L.L.C. v. Angelina Group, 173 S.W.3d 834, 837 =
n.3=20
(Tex. App.=E2=80=94Houston [14th Dist.] 2005, no pet.). In =
addition, because the=20
trial court did not make findings of fact or conclusions of law, =
we will=20
uphold the trial court=E2=80=99s order on any legal theory =
supported by the=20
record. Davis v. Huey, 571 S.W.2d 859, 862 (Tex.=20
1978).
Temporary=20
Injunction
<=
/SPAN>At=20
a hearing for a temporary injunction, the only question before the =
trial=20
court is whether the applicant is entitled to preserve the status =
quo=20
pending trial on the merits. Tex. Indus. Gas, 828 S.W.2d at =
532.=20
Because it is an extraordinary remedy, a temporary injunction will =
not=20
issue without pleading and proof of: (1) a cause of action against =
the=20
defendant; (2) a probable right to the relief sought; and (3) a =
probable,=20
imminent, and irreparable injury in the interim. =
Butnaru, 84=20
S.W.3d at 204. A trial court may issue a temporary =
injunction to=20
prevent a threatened injury, but the act to be enjoined must be =
more than=20
speculative and the injury that flows from the act must be more =
than=20
conjectural. Tex. Indus. Gas, 828 S.W.2d at 532. The injury =
to be=20
prevented must also be irreparable, i.e., such that the =
injured=20
party could not be adequately compensated in damages or such =
damages would=20
not be capable of measurement by any certain pecuniary standard.=20
Butnaru, 84 S.W.3d at 204. Generally, a court =
will=20
not enforce contractual rights by injunction, because a party can =
rarely=20
show that breach of contract damages are an inadequate legal =
remedy.=20
Id. at 211.
Discussion
<=
/SPAN>Appellants=E2=80=99=20
sole issue in this appeal is that the trial court =E2=80=9Cabused =
its discretion=20
as a matter of law when it incorrectly determined that the =
Non-Competition=20
Agreement . . . was not legally enforceable as written.=E2=80=9D =
Because this=20
issue goes to the merits of the appeal, this question is not =
properly=20
before us in an interlocutory appeal from the denial of a =
temporary=20
injunction. Reach Group, 173 S.W3d at 837 n.3. Moreover, =
appellants=20
failed to show that the threatened injury was imminent or =
irreparable.=20
EMS=E2=80=99s chief financial officer speculated that if =
Croft solicited=20
other Croft Services or EMS customers, such solicitation would =
damage the=20
business and make it difficult if not impossible for Croft =
Services or EMS=20
to regain the client.
<=
/SPAN>In=20
addition, EMS and Croft Services argued that Croft=E2=80=99s =
actions set a=20
precedent for Croft possibly to violate the noncompetition=20
agreement in the future. However, there is no evidence in the =
record that=20
Croft had solicited other EMS and Croft Services clients or that =
he=20
intended to do so in the future. To the contrary, the evidence =
showed that=20
Croft had accepted a position with Valence. Moreover, there is no =
evidence=20
that the alleged, potential harm to EMS or Croft Services is not =
capable=20
of measurement by any certain pecuniary standard. Therefore, we =
conclude=20
that the trial court did not abuse its discretion by denying the=20
application for temporary injunction because there was no proof of =
imminent and irreparable harm to be enjoined.
<=
/SPAN>We=20
overrule appellants=E2=80=99 only issue.
Conclusion
<=
/SPAN>Having=20
overruled appellants=E2=80=99 sole issue, we affirm the order of =
the trial court.=20
The Clerk of =
this=20
Court is directed to issue the mandates immediately. See =
Tex. R. App. P.=20
18.6.
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Sam=20
Nuchia
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Justice
Panel consists of Justices Nuchia, =
Jennings, and=20
=
Keyes.