                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________
                               NO. 09-13-00074-CV
                              ___________________

         SHANE HODGSON and PHILLIP KITCHENS, Appellants

                                        V.

  U.S. MONEY RESERVE, INC. d/b/a UNITED STATES RARE COIN &
                 BULLION RESERVE, Appellee

__________________________________________________________________

                On Appeal from the 58th District Court
                       Jefferson County, Texas
                      Trial Cause No. A-180,741
__________________________________________________________________

                          MEMORANDUM OPINION

      Shane Hodgson and Phillip Kitchens ask that we dissolve a temporary

injunction which, among other restrictions, prohibits them from selling or

purchasing coins from persons they contacted while employed with their former

employer and prohibits them from working with persons who were formerly

employed by their former employer. We conclude that parts of the trial court’s

order are enforceable but that other parts of it are not. We affirm the order to the

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extent it is enforceable; the portions of the order that are not enforceable are

dissolved.

                                  Background

      As of the second quarter of 2012, Hodgson and Kitchens were employees of

U.S. Money Reserve, Inc. d/b/a United States Rare Coin & Bullion Reserve

(USMR). USMR is in the business of buying and selling precious metals, including

coins. As employees of USMR, Hodgson and Kitchens signed employment

agreements containing noncompetition agreements. During the years in which

Kitchens was employed at USMR, he held the positions of salesman and sales

manager. During the years Hodgson worked for USMR, he was a salesman.

      Hodgson and Kitchens resigned from their position at USMR in the summer

of 2012. After leaving, Hodgson and Kitchens, along with one other person who

was never employed by USMR, formed United Gold Coin & Bullion Reserve

(UGCB). Hodgson and Kitchens provided UGCB with their skills as salesmen; the

other principal contributed the money needed to provide UGCB’s working capital.

      After leaving USMR, Hodgson and Kitchens remained subject to the terms

of noncompetition agreements they signed while employed at USMR. One

covenant in their noncompetition agreements prohibits them, as former USMR

employees, from using USMR’s trade secrets or marketing techniques. Another

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covenant prohibits Hodgson and Kitchens from hiring or attempting to hire current

USMR employees. The restrictive covenants also prohibit Hodgson and Kitchens

from buying or selling coins from persons with whom they did business or

provided marketing material while employed by USMR for a period of five years.

        Several weeks after the temporary injunction hearing, the trial court

rendered an order granting USMR’s request for temporary injunctive relief. The

trial court’s order restricts Hodgson and Kitchens from the following:

         (i)     hiring, soliciting for hire, calling on, soliciting, diverting, or
                 working with any past, present, or anybody retained in the
                 future as an employee, agent, representative, or consultant of
                 [USMR], or attempting to do so, including, but not limited to
                 [Hodgson and Kitchens];
         (ii)    contacting, communicating with, selling coins to and/or
                 purchasing coins from any of [USMR’s] customers that
                 [Hodgson and Kitchens] initially contacted by utilizing [US
                 MR’s] confidential and/or proprietary information[;]
         (iii)   revealing the names and/or contact information of any of
                 [USMR’s] customers that [Hodgson and Kitchens]
                 discovered through the use of [USMR’s] confidential and/or
                 proprietary information[;]
         (iv)    utilizing any of [USMR’s] confidential and/or proprietary
                 information[;]
         (v)     disclosing any of [USMR’s] confidential and/or proprietary
                 information to anyone[;] and/or
         (vi)    associating with or forming any other entity in the business
                 of selling gold coins or similar items within two-hundred
                 miles of Austin or Beaumont, Texas.

      We note our jurisdiction over interlocutory appeals seeking appellate review

of rulings granting temporary injunctions. See Tex. Civ. Prac. & Rem. Code Ann. §
                                            3
51.014(a)(4) (West Supp. 2012). In three issues, Hodgson and Kitchens argue that

the trial court’s order should be dissolved.

                                 Standard of Review

      An abuse of discretion standard governs an appellate court’s review of a trial

court’s interlocutory ruling on a party’s request for a temporary injunction. Davis

v. Huey, 571 S.W.2d 859, 861-62 (Tex. 1978). An abuse of discretion occurs when

a trial court acts in an unreasonable or arbitrary manner. See Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). “An abuse of

discretion does not exist where the trial court bases its decisions on conflicting

evidence.” Davis, 571 S.W.2d at 862.

      When a trial court has not been requested to enter findings of fact or

conclusions of law, the evidence from a temporary injunction hearing is viewed on

appeal in the light most favorable to the trial court’s order; every reasonable

inference from the evidence introduced at the temporary injunction hearing is

indulged in the light that favors the trial court’s ruling. See Thomas v. Beaumont

Heritage Soc’y, 296 S.W.3d 350, 352 (Tex. App.—Beaumont 2009, no pet.).

Viewing a ruling in the light most favorable to the ruling in the court below

requires that we affirm the order granting temporary injunctive relief if we can do




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so on any valid legal theory that is supported by both the pleadings and the

evidence. See id.; Davis, 571 S.W.2d at 862.

      A temporary injunction hearing allows the trial court to determine if the

party seeking temporary injunctive relief is entitled to “preserve the status quo of

the litigation’s subject matter pending a trial on the merits.” Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 204 (Tex. 2002). “To obtain a temporary injunction, the

applicant must plead and prove three specific elements: (1) a cause of action

against the defendant; (2) a probable right to the relief sought; and (3) a probable,

imminent, and irreparable injury in the interim.” Id.

      On appeal, the merits of the underlying case are not presented for appellate

review. A trial court’s ruling on a party’s request for temporary injunctive relief is

a preliminary decision. See Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877,

882-83 (Tex. App.—Dallas 2003, no pet.). “[B]y granting a temporary injunction,

a trial court does not declare that a covenant not to compete is valid.” Vaughn v.

Intrepid Directional Drilling Specialists, Ltd., 288 S.W.3d 931, 938 (Tex. App.—

Eastland 2009, no pet.).

                                      Analysis

      In issues one and two, Hodgson and Kitchens argue that USMR failed to

demonstrate that it would likely succeed in preventing them from working with

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any current or former employees of USMR. Hodgson and Kitchens argue that

restraining them from working with former USMR employees is a more severe

restriction than is necessary to protect USMR’s business interests. Also in arguing

these issues, Hodgson and Kitchens assert that no evidence was produced showing

that the covenant prohibiting them from competing with USMR within two

hundred miles of Austin and Beaumont is a reasonable restriction. According to

Hodgson and Kitchens, the evidence from the hearing does not show that they had

conducted business within the restricted territory defined by their agreements.

Hodgson and Kitchens conclude that because the restrictions in their agreements

were not shown to be reasonably necessary to protect USMR’s business, the

restrictions violate section 15.50 of the Texas Business and Commerce Code. 1 See

Tex. Bus. & Com. Code Ann. § 15.50(a) (West 2011). When covenants are

ancillary to an agreement to provide an employer with services, the Texas Business

and Commerce Code requires the employer to prove that the restrictions are




      1
        The portion of section 15.50 relevant to the appeal provides that “a
covenant not to compete is enforceable if it is ancillary to or part of an otherwise
enforceable agreement at the time the agreement is made to the extent that it
contains limitations as to time, geographical area, and scope of activity to be
restrained that are reasonable and do not impose a greater restraint than is
necessary to protect the goodwill or other business interest of the promisee.” Tex.
Bus. & Com. Code Ann. § 15.50(a) (West 2011).
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necessary to protect its business interests. See id. § 15.51(b) (West 2011); 2 see also

id. § 15.50(a).

      The testimony from the hearing reflects that none of the witnesses explained

how USMR’s business interests would be protected by a blanket restriction

preventing Hodgson and Kitchens from working with former USMR employees if

they were to work together for an organization that did not compete with USMR.

Additionally, there was no evidence that USMR had customers who lived within

the restricted territory, nor was there any evidence showing that Hodgson and

Kitchens had sold coins to any of their former customers or to persons with whom

they had contact while working at USMR.

      On appeal, USMR has not explained why its business interests would be

protected by prohibiting Hodgson and Kitchens from working with USMR’s
      2
        We note that the noncompetition agreements prohibit Hodgson and
Kitchens from working in a business similar to USMR’s anywhere in the United
States, Canada, or the United Kingdom. At the hearing, USMR did not request
injunctive relief based on this provision of the noncompetition agreement.
Nonetheless, in 2008, in a case involving two other persons who were formerly
employed by USMR, we determined that “the trial court [had] abused its discretion
in enjoining [Chad Poole and Terry Fendley] from engaging in any subsequent
employment in [the coin and bullion] industry throughout the United States.” See
Poole v. U.S. Money Reserve, Inc., No. 09-08-137 CV, 2008 Tex. App. LEXIS
8257, at *12 (Tex. App.—Beaumont Oct. 30, 2008, no pet.) (mem. op.). In
Hodgson’s and Kitchens’ case, we note that the trial court’s order is narrower than
the one we reviewed in Poole, as the order under review does not generally
prohibit Hodgson and Kitchens from working as salesmen in the coin and bullion
business throughout the United States, Canada, and the United Kingdom.
                                          7
former employees in a noncompeting business, nor has USMR pointed to evidence

that explains why, given a restriction that prevents Hodgson and Kitchens from

contacting their former customers, a two-hundred-mile restriction is necessary to

protect USMR’s business interests. For example, the record does not show that

Hodgson’s and Kitchens’ former customers live within the restricted territory, nor

does it show that USMR has a significant number of customers living within the

restricted territory. Finally, the testimony does not show that Hodgson and

Kitchens solicited their former USMR customers while working for UGCB.

      To be reasonable, a covenant restricting an activity of an employee must be

shown as having some bearing on the activities of the employer. See Tex. Bus. &

Com. Code Ann. § 15.50(a); Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381,

387 (Tex. 1991) (“The fundamental legitimate business interest that may be

protected by such covenants is in preventing employees or departing partners from

using the business contacts and rapport established during the relationship of

representing the accounting firm to take the firm’s customers with him.”). A

restriction prohibiting competition in a geographical area must not impose a greater

restraint than the restraint that is necessary to protect the goodwill or other business

interest of the employer. See Tex. Bus. & Com. Code Ann. § 15.50(a). At the

temporary injunction hearing, the burden of showing that the restrictions were

                                           8
reasonable and that the restrictions were necessary to protect USMR’s business

interests was a burden that the law places on USMR. See id. § 15.51(b).

      There is no evidence in the record showing that restrictions preventing

Hodgson and Kitchens from working with a former employee of USMR in a

noncompeting business are necessary to protect USMR’s business interest. There is

also no evidence demonstrating that the restriction prohibiting Hodgson and

Kitchens from working together within two hundred miles of Austin and Beaumont

are necessary to protect USMR’s business interests. Based on the evidence before

the trial court, we hold the trial court abused its discretion by finding that USMR

would probably prevail in its effort to enforce these two restrictions. Issues one and

two are sustained.

      In their third issue, Hodgson and Kitchens argue the trial court’s order

should be dissolved in its entirety because USMR failed to demonstrate that it

would suffer probable, imminent, and irreparable injuries. The record shows that

Hodgson and Kitchens established a business that was competing in the same type

of business as that of USMR, and that Hodgson and Kitchens intended to continue

working together in that business. There was also evidence that UGCB’s attempt to

screen its potential customers by asking whether they had done business with

USMR had failed to alert UGCB to the fact that some of its sales were people who

                                          9
were customers of USMR, although in these instances the sales were not shown to

have been to people who were also Hodgson’s or Kitchens’ former customers.

Although there was no evidence indicating that Hodgson and Kitchens had sold or

contacted their former customers as of the date of the hearing, the trial court could

reasonably conclude that UGCB did not have sufficient policies or practices in

place to prevent Hodgson and Kitchens from marketing coins and bullion to their

former customers.

      The evidence also shows that Kitchens, while employed by USMR, had

access to USMR’s entire customer database. Additionally, Kitchens agreed that he

used an alias when he talked to potential customers while at UGCB; the alias

Kitchens used was the same name as one of USMR’s salesmen. Given UGCB’s

marketing practices, Kitchens’ choice to use the name of one of USMR’s salesmen

as an alias, and the fact that UGCB was in the coin and bullion business, the threat

that Hodgson and Kitchens would market coin and bullion to their former

customers or to persons to whom they marketed while employed by USMR were

not hypothetical concerns; they were real and ongoing. The evidence is also

sufficient to support the inference that a sale to a former Hodgson’s or Kitchens’

customer or contact would be a sale that USMR lost. We also note that in the trial

court, Hodgson and Kitchens agreed that their employment agreements prevented

                                         10
them from marketing coins and bullion to their former customers and to persons to

whom they had marketed while employed by USMR.

      On this record, the trial court’s finding on probable, imminent, and

irreparable harm—to the extent the trial court’s order prevents Hodgson and

Kitchens from hiring or soliciting USMR’s current employees; utilizing USMR’s

confidential and proprietary information; contacting, communicating, selling, or

purchasing coins or bullion from former customers or persons to whom they

marketed while working at USMR; and from disclosing USMR’s confidential and

proprietary information—is supported by the evidence. With respect to these

aspects of the trial court’s order, we overrule issue three.

      Under the Rules of Appellate Procedure, we are required to render the

judgment that the trial court should have rendered unless a remand is necessary for

further proceedings. Tex. R. App. P. 43.2. In this case, we conclude that no remand

is necessary. Accordingly, we dissolve that portion of the trial court’s temporary

injunction order that prohibits Hodgson and Kitchens from working with persons

who were formerly employed by USMR; we also dissolve that portion of the

temporary injunction order that prohibits Hodgson and Kitchens from working in

the business of selling gold coins or similar items (but we do not dissolve the

order’s restriction that prevents their marketing coins and bullion to their former

                                          11
customers or to persons to whom they marketed while working at USMR ), as well

as that portion of the trial court’s order that prohibits Hodgson and Kitchens from

working together; finally, we dissolve that portion of the trial court’s order that

prevents Hodgson and Kitchens from forming a business within two hundred miles

of Austin and Beaumont. Otherwise, the trial court’s order is affirmed.

      AFFIRMED IN PART, REVERSED AND RENDERED IN PART.




                                             ___________________________
                                                    HOLLIS HORTON
                                                         Justice


Submitted on May 8, 2013
Opinion Delivered June 13, 2013
Before McKeithen, C.J., Kreger and Horton, JJ.




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