AFFIRMED; Opinion Filed August 12, 2014.




                                          S
                              Court of Appeals
                                              In The


                       Fifth District of Texas at Dallas
                                       No. 05-13-01135-CV

 RICHARD P. DALE, JR., D/B/A SENIOR HEALTHCARE CONSULTANTS, Appellant
                                    V.
                       TAMMY S. HOSCHAR, Appellee

                     On Appeal from the 116th Judicial District Court
                                  Dallas County, Texas
                           Trial Court Cause No. 10-0860-4

                              MEMORANDUM OPINION
                             Before Justices Fillmore, Evans, and Lewis
                                     Opinion by Justice Evans

       Richard P. Dale, Jr., d/b/a Senior Healthcare Partners, appeals an adverse

judgment in favor of Tammy S. Hoschar, a former independent insurance sales agent who

sold insurance policies pursuant to an agent agreement with Dale. In a single issue, Dale

complains the trial court did not enforce a non-compete agreement but instead awarded

Hoschar earned but unpaid commissions plus attorney’s fees. We conclude the trial court

did not err, so we affirm.

                                         I. BACKGROUND

       Hoschar contracted with Dale to sell insurance as an independent contractor pursuant to

an Agent Agreement. In the agreement, the parties agreed:

       Upon Termination of the Agreement, the Agent shall return to General Agent any
       and all information and supplies provided to Agent including any and all lead
           information and agrees to take no action either directly or indirectly, as an agent,
           employee, principal, or consultant of any third party or to utilize and [sic] third
           party, to attempt to replace business with any policyholder by soliciting or
           offering competing policies of insurance to any policyholder to which Agent sold
           any policy of insurance pursuant to the terms of this Agreement.

Hoschar sold insurance pursuant to the agreement. The commission structure provided more

compensation to Hoschar the first year a policy was in force than subsequent years. 1 Hoschar

changed agencies for which she sold insurance and Dale sued her to enjoin her from soliciting

policyholders to replace their insurance with coverage she sold at her new employer. Hoschar

counterclaimed for earned but unpaid commissions. The parties waived a jury, 2 stipulated that

Dale owed Hoschar $7,112.35 subject to the trial court’s determination of the enforceability of

the covenant not to compete, and submitted that issue to the trial court at a bench trial. The trial

court decided the covenant not to compete was unenforceable as a matter of law because it does

not contain reasonable time or geographic limitations. The trial court awarded reasonable and

necessary attorney’s fees and rendered judgment for Hoschar. Dale timely filed notice of this

appeal.

                                                   II. ANALYSIS

A. Standard of Review

           Dale does not challenge the legal or factual sufficiency of the evidence, but in a single

issue challenges the trial court’s determination that the non-competition clause was

unenforceable. We review a trial court’s conclusions of law de novo. BMC Software Belgium,

N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We independently evaluate the trial court’s

conclusions of law to determine whether the trial court correctly drew the legal conclusions from

the facts. Id. Conclusions of law must be upheld on appeal if any legal theory supported by the

    1
      According to Dale at oral argument, this resulted in financial incentive both to sell insurance to new customers
and to sell existing customers replacement insurance even if the premiums were the same.
    2
        Dale, also, nonsuited a defamation claim against Hoschar.


                                                         –2–
evidence sustains the judgment, and will be reversed only if the conclusions are erroneous as a

matter of law. Cohn v. Comm’n for Lawyer Discipline, 979 S.W.2d 694, 697 (Tex. App.—

Houston [14th Dist.] 1998, no pet.).

B. Covenants not to Compete

        In Texas,

        a covenant not to compete is enforceable if it is ancillary to or part of an otherwise
        enforceable agreement at the time the agreement was 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 § 15.50(a) (West 2014). This statutory criteria for enforceability of a

covenant not to compete and the procedures and remedies provided by section 15.51 “are

exclusive and preempt any other criteria for enforceability of a covenant not to compete or

procedures and remedies in an action to enforce a covenant not to compete under common law or

otherwise.” Id. at § 15.52 (West 2014). Our determination of whether a covenant not to

compete is a reasonable restraint of trade is a question of law for the court. U.S. Risk Ins. Group,

Inc. v. Woods, 399 S.W.3d 295, 301 (Tex. App.—Dallas 2013, no pet.).

        The focus of our inquiry when considering a challenge to a covenant not to compete is

whether the covenant is ancillary to an otherwise enforceable agreement, whether it contains

limitations on time, geographical area, and scope of activity to be restrained and, if so,

whether those limitations are reasonable. Alex Sheshnoff Mgmt. Servs., L.P. v. Johnson, 209

S.W.3d 644, 655 (Tex. 2006); Ad Com, Inc. v. Helms, 05-96-01706-CV, 2000 WL 45880, at *2

(Tex. App.—Dallas Jan. 21, 2000, pet. denied) (mem. op.). As to reasonable time limitation, 3 we

have held that a covenant not to compete in an employment agreement that was indefinite in its


    3
     Neither party addresses whether the covenant not to compete here was ancillary to an otherwise enforceable
agreement, so we do not address that issue.


                                                     –3–
time limitation was unreasonable and therefore unenforceable as a matter of law. Gen. Devices,

Inc. v. Bacon, 888 S.W.2d 497, 504 (Tex. App.—Dallas 1994, no writ). As to geographical and

scope of activity limitations, a covenant not to compete that has no limitations concerning

geographical area or scope of activity is an unreasonable restraint of trade and unenforceable.

Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 663 (Tex. 1990); Zep Mfg.

Co. v. Harthcock, 824 S.W.2d 654, 661 (Tex. App.—Dallas 1992, no writ) (covenant not to

compete unenforceable because no geographical limitation); but see Gallagher Healthcare Ins.

Servs. v. Vogelsang, 312 S.W.3d 640, 654 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)

(“A number of courts have held that a non-compete covenant that is limited to the employee’s

clients is a reasonable alternative to a geographical limit,” citing cases). 4

           Dale brings a single issue, that the covenant not to compete was enforceable as a matter

of law. No record of the bench trial was filed in this appeal, but the existence of the agreement

and the text of the covenant not to compete are not in dispute. 5 In addition, neither party

challenges the application of section 15.50 to independent contractors as Hoschar was here. 6

           Dale argues the limitations on Hoschar’s competition are reasonable. 7 As to time, Dale

argues the phrase, “attempt to replace business . . . by soliciting or offering competing policies of

insurance,” reasonably limits the restraint on Hoschar to the duration of the current policy held

by each insured. At oral argument, Dale contended this “replace business” restriction was

    4
      Although appellant argues for exceptions to these principles from cases involving the sale of a business, “In
the employment context, covenants not to compete are generally disfavored as restraints of trade.” Siobhan Ray,
Don’t Hop on the Bandera Wagon Just Yet: Enforcing Sale-of-Business Covenants Not to Compete in Texas, 65
BAYLOR L. REV. 682, 686 (2013).
    5
        The covenant not to compete was quoted by both parties in their briefs and by the trial court in the judgment.
    6
      Courts have applied section 15.50 to independent contractors, but without discussion. See Cobb v. Caye
Publ'g Group, Inc., 322 S.W.3d 780, 782 (Tex. App.—Fort Worth 2010, no pet.); Wilson v. Chemco Chem. Co., 711
S.W.2d 265, 266 (Tex. App.—Dallas 1986, no writ).
    7
       In the trial court, Hoschar only challenged the covenant not to compete for failing to have reasonable
limitations on time and geography. Neither party nor the trial court addressed the scope of activity, so we will not
address it either.


                                                          –4–
limited to the current policy held by each policyholder and did not restrict Hoschar from

soliciting policyholders after they renewed their coverage. Hoschar argued in her brief that this

“replace business” restriction contained no exclusion of renewal policies and, therefore, was

indefinite as to time and unenforceable. We agree with Hoschar.

         An indefinite-duration noncompetition clause otherwise covered by section 15.50 is

unenforceable because it is not reasonably limited as to time. See Bacon, 888 S.W.2d at 500. In

Bacon, temporary agency employees had agreed not to accept employment with the agency’s

“client” companies until the expiration of thirty days after the relationship between the agency

and its “client” companies ended. We held this restriction was indefinite in time because the

relationship between the agency and its “client” companies could continue indefinitely. We see

no difference with Dale’s agreement with Hoschar.                 The agreement does not exclude renewal

coverage of policyholders who could renew repeatedly for decades. 8

         As to geography, Dale argues the phrase, “any policyholder to which Agent sold any

policy of insurance pursuant to the terms of this Agreement,” reasonably restricts Hoschar to the

geographical area of existing policyholders. Hoschar argues this merely restricts the covenant

not to compete to Dale’s existing policyholders but does not contain a geographical limitation.

Hoschar relies on Juliette Fowler Homes, 793 S.W.2d at 663, in which the supreme court

considered a noncompetition clause that prohibited departed employees from entering into

contracts “with any past or present clients of Welch wherever they may be located.” Id. The

supreme court concluded the noncompetition clause “contains no limitations concerning

geographical area or scope of activity . . . .            This prohibition is absolute, unequivocal and
    8
      We do not have a record of the trial and exhibits, so we do not have even one policy to ascertain the length of
any policyholder’s policy of insurance. Thus, even if we agreed with Dale’s view that the noncompetition clause
permitted Hoschar to solicit policyholders after each renewed their insurance, we have no evidence of how many
years that would result in the noncompetition clause being in force. It was Dale’s burden to demonstrate the trial
court erred and even under Dale’s interpretation of the agreement he has not demonstrated that as to the lack of a
reasonableness of the duration of the noncompetition clause.


                                                        –5–
unreasonable.”    Id.   This Court has also held that a noncompetition clause that restricts

solicitation of clients without more fails to contain a reasonable limitation on its geographical

reach. See Bacon, 888 S.W.2d at 504.

         Dale argues that other courts of appeals have decided that a noncompetition clause’s

limitation to clients or customers is an adequate substitute for a geographical limitation. See

Vogelsang, 312 S.W.3d at 654 (citing cases). We need not resolve the apparent conflict of these

cases with section 15.52’s prohibition against substituting different criteria from that selected by

the Legislature in section 15.50 or with Juliette Fowler Homes or Bacon. The Dale-Hoschar

noncompetition clause lacks a reasonable time limitation and that is sufficient to conclude it is

unenforceable.

                                        III. CONCLUSION

         For these reasons, we overrule Dale’s single issue and affirm the judgment of the trial

court.




                                                      /David Evans/
                                                      DAVID EVANS
                                                      JUSTICE

131135F.P05




                                                –6–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

RICHARD P. DALE, JR., D/B/A SENIOR                   On Appeal from the 116th Judicial District
HEALTHCARE CONSULTANTS,                              Court, Dallas County, Texas
Appellant                                            Trial Court Cause No. 10-0860-4
                                                     Opinion delivered by Justice Evans, Justices
No. 05-13-01135-CV         V.                        Fillmore and Lewis participating.

TAMMY S. HOSCHAR, Appellee

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Tammy S. Hoschar recover her costs of this appeal from
appellant Richard P. Dale, Jr., d/b/a Senior Healthcare Consultants.


Judgment entered this 12th day of August, 2014.




                                               –7–
