Affirm in part; Reverse and Remand in part; Opinion Filed December 18, 2018.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00384-CV

                        TINA WHITE, Appellant
                                  V.
     IMPACT FLOORS OF TEXAS, LP AND IFT, INC., ITS GENERAL PARTNER,
                               Appellees

                        On Appeal from the 14th Judicial District Court
                                    Dallas County, Texas
                             Trial Court Cause No. DC-18-00919

                              MEMORANDUM OPINION
                        Before Justices Stoddart, Whitehill, and Boatright
                                   Opinion by Justice Stoddart
       This is an interlocutory appeal from a temporary injunction granted in favor of Impact

Floors of Texas, LP and ITF, Inc. based on provisions in an employment agreement between

Impact Floors and Tina White. In six issues, White asserts the injunction is void because it fails

to comply with Texas Rule of Civil Procedure 683, and the injunction was improperly entered

because the non-compete provision does not contain a lawful geographical limitation, Impact

Floors failed to meet its burden to show it is entitled to a temporary injunction, Impact Floors

failed to join a necessary party, and the non-compete provision was not ancillary to an otherwise

enforceable contract. We reverse numbered paragraph (1) of the order, which prohibits White

from disclosing Impact Floors’ “Confidential Information” and remand that issue to the trial court

for further proceedings. In all other respects, we affirm the trial court’s order.
                                     FACTUAL BACKGROUND

       White worked for Impact Floors for fourteen years. Her final position was the Executive

Vice President of Corporate Sales. In that capacity, she called on corporate clients to obtain new

business and manage existing accounts in the Dallas-Fort Worth area, including surrounding

counties. White also worked with executive vice presidents in other geographic regions and she

received their “call reports,” which detailed sales intelligence, marketing opportunities, and market

weaknesses. She was familiar with pricing information given to some of Impact Floors’ customers

in Austin and Houston. To facilitate her job functions, White received frequently-updated

information about pricing, rebates, and product usage, which is information that should not be

shared with competitors. She also received customer lists. A list of customers White managed

was admitted as an exhibit at the temporary injunction hearing.

       In April 2016, White signed an Employment Agreement with Impact Floors. She resigned

from Impact Floors in December 2017. After her departure, she exchanged text messages with

some former customers. As part of a conversation, one former customer texted White: “Not

moving forward with Impact.” White interpreted that statement to mean the customer did not

intend to place further orders with Impact Floors. She testified that after she left, she did not

provide any confidential information, price list, sales list, or other information from Impact Floors

to any competitor. She has not “lured any clients away” from Impact Floors.

       Jeffrey Don Melton, Director of National Accounts for Ready Carpet, a competitor to

Impact Floors, talked to White in December 2017 before she left Impact Floors. White said she

was looking for a new job and they discussed the possibility she could work for Ready Carpet.

Melton testified White tried to “sell what she could do for Ready Carpet.” She said she could

bring businesses to Ready Carpet because she has good industry contacts and a substantial

customer base. White told Melton she had a non-compete agreement with Impact Floors, but

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suggested she could work in a location other than Dallas for a few years. White indicated she

could “still bring certain key national or large customers over to Ready Carpet.” She also

suggested she could bring employees from Impact Floors with her. During the call, she may have

identified her top customers.

           Brenda Carpenter works for McMahan’s Flooring (MFI), a competitor to Impact Floors in

“most markets,” including Dallas, Austin, and Houston. After learning from a third party that

White left Impact Floors, Carpenter contacted White. Carpenter interviewed White on December

23, 2017. After interviewing with multiple companies, White joined MFI as the Director of Sales

for Austin and Houston on January 23, 2018. She told MFI about the non-compete agreement,

and she has not provided MFI with any confidential information.

           Pace Realty Corporation, a management company, was one of White’s customers when

she worked for Impact Floors. On January 9, 2018, Pace Realty sent a request for bid to MFI and

MFI responded the following day. MFI was notified it won the bid on January 19. MFI attempted

to win business from Pace Realty in 2013, 2014, and 216; MFI’s bids were not solicited in 2016

or 2107. Emails from June 2017 indicate MFI believed it was starting to make progress toward

winning business from Pace Realty.

           Following a hearing, the trial court entered a temporary injunction. The injunction states

that unless it is granted, irreparable injury to Impact Floors is imminent because White “may,

directly or through others, solicit, contact, or call upon, customers of [Impact Floors] in violation

of the Employment Agreement . . ..” The injunction enjoins White from:

           1. Directly or indirectly, by herself or through others, soliciting, contacting, or calling
              upon, or directly or indirectly assisting any other person or entity to solicit, contact, or
              call upon any of the entities listed on Exhibit A1 attached hereto during the pendency
              of this action. . . .



   1
       A list of customers is attached to the trial court’s order as Exhibit A.

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          2. Directly or indirectly through others disclosing to any person or entity any Confidential
             Information (as defined in paragraph 5.1 of the 2016 Employment Agreement) of
             [Impact Floors] or its parent companies, subsidiaries, or affiliates, that was acquired or
             developed by White while she was employed by [Impact Floors].2


This appeal followed.

                                                           LAW & ANALYSIS

          A temporary injunction’s purpose is 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).

It is an extraordinary remedy and does not issue as a matter of right. Id.

          A. Rule 683

          In her first issue, White argues the temporary injunction is void because it fails to comply

with the mandatory requirements of rule 683. See TEX. R. CIV. P. 683. In relevant part, rule of

civil procedure 683 requires every order granting a temporary injunction to state the reasons for

its issuance, be specific in terms, and describe in reasonable detail and not by reference to the

complaint or other document, the act or acts sought to be restrained. TEX. R. CIV. P. 683; El

Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 744 (Tex. App.—Dallas 2011, no pet.); 4415 W

Lovers Lane, LLC v. Stanton, No. 05-17-01363-CV, 2018 WL 3387384, at *3 (Tex. App.—Dallas

July 12, 2018, no pet.) (mem. op.). A trial court’s order stating its reasons for granting a temporary

injunction must be specific and legally sufficient on its face and not merely conclusory. El Tacaso,

356 S.W.3d at 744. To comply with rule 683, a trial court must set out in the temporary injunction

order the reasons the court deems it proper to issue the injunction, including the reasons why the

applicant will suffer injury if the injunctive relief is not ordered. Id. The requirements of rule of

civil procedure 683 are mandatory and must be strictly followed. Id. at 745. If a temporary




   2
       We will refer to this paragraph as the “Confidential Information Provision.”

                                                                      –4–
injunction order fails to comply with the mandatory requirements of rule of civil procedure 683, it

is void. Id.

       White asserts the order is void because the Confidential Information Provision references

the Employment Agreement to provide the definition of Confidential Information rather than

stating within the order what information White is enjoined from disclosing. The Confidential

Information Provision states White may not disclose Confidential Information “as defined in

paragraph 5.1 of the 2016 Employment Agreement.” That definition is not included in the order

and the Employment Agreement is not an exhibit. Because rule 683 requires every order granting

a temporary injunction to, among other things, describe in reasonable detail and not by reference

to the complaint or other document the act or acts sought to be restrained, and the injunction does

not include the language of paragraph 5.1 from the Employment Agreement, we agree it does not

comply with rule 683 in this respect. Although White requests we dissolve the injunction on

account of this failure, in prior cases we have reversed the portion of the order that lacked

specificity and remanded to the trial court for further proceedings. See McCaskill v. Nat’l Circuit

Assembly, No. 05-17-01289-CV, 2018 WL 3154616, at *4 (Tex. App.—Dallas June 28, 2018, no

pet.) (mem. op.) (citing Computek Computer & Office Supplies, Inc. v. Walton, 156 S.W.3d 217,

224 (Tex. App.—Dallas 2005, no pet.)). We find it appropriate to do the same here as to the

Confidential Information Provision. We sustain White’s first issue to this extent.

       White further argues the order is void because it makes conclusory statements that Impact

Floors met its evidentiary burden of showing a probable right to recovery and probable injury

“without stating in the Order one concrete fact to support the conclusory statements.” Further, the

order states the conclusion that irreparable injury is imminent because White may violate the

Employment Agreement, not because she has or will violate it. These concerns do not fall within

the ambit of rule 683, but rather are related to what the applicant for a temporary injunction must

                                               –5–
plead and prove. Compare Butnaru, 84 S.W.3d at 204 (stating what an applicant for a temporary

injunction must plead and prove) with TEX. R. CIV. P. 683 (providing form and scope of

injunction). White raises these concerns again in her third and fourth issues and we address them

there. We overrule White’s first issue to this extent.

       B. Geographic Limitation

       In her second issue, White argues the injunction was improperly entered because the non-

compete provision in the Employment Agreement does not contain a lawful geographic limitation,

making it overly broad and unenforceable as written. The temporary injunction states the

Employment Agreement includes a covenant not to compete, a covenant not to disclose

confidential information, and a non-solicitation of customers clause. The trial court only enjoined

White from soliciting customers and disclosing confidential information. The trial court did not

enjoin White pursuant to the non-compete provision. Because the injunction does not seek to

enforce the non-compete provision of the Employment Agreement, which is the provision about

which White complains, we conclude White’s second issue presents nothing for our review.

       C. Sufficiency of Evidence

       In her third and fourth issues, White argues the trial court erred by entering the injunction

because Impact Floors failed to meet its burden to produce sufficient evidence to support each

essential element to be granted a temporary injunction. 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. Butnaru, 84 S.W.3d at 204.

       The decision to grant or deny a temporary injunction is within the trial court’s discretion,

and we will not reverse that decision absent an abuse of discretion. See id. We do not substitute

our judgment for the trial court’s judgment unless the trial court’s action was so arbitrary that it

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exceeded the bounds of reasonable discretion. See id. When reviewing the trial court’s decision,

we draw all legitimate inferences from the evidence in the light most favorable to the trial court’s

judgment. BM Med. Mgmt. Serv., LLC v. Turner, No. 05-16-00670-CV, 2017 WL 85423, at *3

(Tex. App.—Dallas Jan. 10, 2017, no pet.) (mem. op.) (citing Marketshare Telecom, L.L.C. v.

Ericsson, Inc., 198 S.W.3d 908, 916 (Tex. App.—Dallas 2006, no pet.)). The trial court does not

abuse its discretion by making a decision based on conflicting evidence. Id. (citing Ericsson, 198

S.W.3d at 916). However, the trial court does abuse its discretion when it misapplies the law to

established facts or when the evidence does not reasonably support the trial court’s determination

of the existence of probable injury or probable right of recovery. Id. (citing Ericsson, 198 S.W.3d

at 916).

       First, Impact Floors was required to show it had a cause of action against White. See

Butnaru, 84 S.W.3d at 204. Impact Floors asserted claims for, among other things, breach of

contract, breach of confidentiality clause, breach of covenant not to compete or solicit Impact

Floors’ customers, breach of fiduciary duty, trade secret misappropriation, and tortious

interference with prospective relations. Based on our review of Impact Floors’ original counter-

petition, we conclude it asserted several valid legal theories.

       The second element is a probable right to the relief sought. See id. Impact Floors was

required to offer evidence tending to support the right to recover on the merits of one of its causes

of action. See Miller v. Talley Dunn Gallery, LLC, No. 05-15-00444-CV, 2016 WL 836775, at *8

(Tex. App.—Dallas Mar. 3, 2016, no pet.) (mem. op.) (citing Walling v. Metcalfe, 863 S.W.2d 56,

58 (Tex. 1993) (per curiam); Dallas Anesthesiology Assocs., P.A. v. Tex. Anesthesia Grp., P.A.,

190 S.W.3d 891, 896–97 (Tex. App.—Dallas 2006, no pet.) (“A probable right to recover may be

proven by alleging the existence of a right and presenting evidence tending to show that right is

being denied.”)). Impact Floors was not required to establish it will prevail on final trial because

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the ultimate merits of the case were not before the trial court. See id. (citing Walling, 863 S.W.2d

at 58; Graham Mortg. Corp. v. Hall, 307 S.W.3d 472, 477 (Tex. App.—Dallas 2010, no pet.).

Rather, the question before the trial court was whether Impact Floors was entitled to preservation

of the status quo pending trial on the merits. See id. (citing Walling, 863 S.W.2d at 58).

       The record shows White was an executive at Impact Floors who developed relationships

with corporate clients primarily in the Dallas-Fort Worth area, but also in other parts of Texas to

support other employees. As part of her job, she received frequently-updated information about

pricing, rebates, and product usage; customer lists; and call reports detailing sales intelligence,

marketing opportunities, and market weaknesses. When she spoke to Melton at Ready Carpet

before her departure from Impact Floors, she tried to “sell what she could do for Ready Carpet.”

She said she could bring businesses, including “key national or large customers,” to Ready Carpet

because she has good industry contacts and a substantial customer base. She may have identified

her top customers to him. She also suggested she could bring employees from Impact Floors with

her.

       White accepted a position with MFI. At approximately the same time MFI was talking to

White about joining the company, MFI won a bid with Pace Realty. Prior to 2018, MFI had

unsuccessfully attempted to win business from Pace Realty and had failed for five years. Pace

Realty had been one of White’s customers at Impact Floors. Additionally, after receiving a text

message from White following her departure from Impact Floors, one customer stated it was “[n]ot

moving forward with Impact,” which White interpreted to mean the customer did not intend to

place further orders with Impact Floors.

       Reviewing the evidence in the light most favorable to the trial court’s order and indulging

every reasonable inference in its favor, we cannot say the trial court abused its discretion by




                                                –8–
concluding Impact Floors met its burden to show a probable right to recovery. We overrule

White’s third issue.

       In her fourth issue, White asserts Impact Floors failed to produce any evidence that its

damages were difficult or impossible to calculate or that White could not satisfy the money

judgment sought. An injury is irreparable if the injured party cannot be adequately compensated

in damages or if the damages cannot be measured by any certain pecuniary standard. Butnaru, 84

S.W.3d at 204. To demonstrate probable injury or harm, an applicant must show an injury for

which there can be no real legal measure of damages or none that can be determined with a

sufficient degree of certainty. Turner, 2017 WL 85423, at *2 (citing Ericsson, 198 S.W.3d at 925–

26). “[T]he use of confidential information to gain access to customers of a competitor is a

recognized ground for injunctive relief because of the difficulty of establishing the amount of

damages.” HMS Holdings Corp. v. Pub. Consulting Group, Inc., No. 05-15-00925-CV, 2016 WL

1179436, at *3 (Tex. App.—Dallas Mar. 28, 2016, no pet.) (mem. op.) (citing Keystone Life Ins.

Co. v. Marketing Mgmt., Inc., 687 S.W.2d 89, 92 (Tex. App.—Dallas 1985, no writ.)); see also

Miller, 2016 WL 836775, at *6 (citing Dickerson v. Acadian Cypress & Hardwoods, Inc., No. 09–

13–00299–CV, 2014 WL 1400659, at *5 (Tex. App.—Beaumont Apr. 2014, no pet.) (mem. op.)

(impact of interruption of relationships with clients is difficult, if not impossible, to fully

measure)). Additionally, “injunctive relief is a proper remedy to protect confidential information

and trade secrets.” HMS Holdings Corp., 2016 WL 1179436, at *3 (citing Rugen v. Interactive

Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex. App.—Dallas 1993, no writ.)).

       Impact Floors pleaded that it had no adequate remedy at law because the damages caused

by White’s use of its confidential information are difficult to calculate due to the uncertainty of its

lost profits. Testimony at the hearing showed White had confidential information from Impact

Floors that she could use to gain access to customers for the benefit of MFI. Viewing the evidence

                                                 –9–
in the light most favorable to the trial court’s order and indulging every reasonable inference in its

favor, some evidence reasonably supports the trial court’s conclusion of probable imminent and

irreparable harm that Impact Floors will suffer if injunctive relief is not granted. We overrule

White’s fourth issue.

        D. Joining MFI

        In her fifth issue, White argues the injunction was improperly entered because appellees

failed to join MFI, a necessary party. The record does not show White raised this issue in the trial

court. Therefore, we conclude she did not preserve the argument for appeal. See TEX. R. APP. P.

33.1 (a).

        E. Contract Enforceability

        In her sixth issue, White argues the temporary injunction was improperly entered because

the non-compete provision was not ancillary to an otherwise enforceable contract and was not

supported by new consideration. The legal issues before a trial court at a temporary injunction

hearing are whether the applicant showed a probability of success and irreparable injury; the

underlying merits of the controversy are not presented. Loye v. Travelhost, Inc., 156 S.W.3d 615,

619 (Tex. App.—Dallas 2004, no pet.); Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 882

(Tex. App.—Dallas 2003, no pet.). At a temporary injunction hearing, the trial court does not

address the ultimate issue of whether a covenant not to compete is enforceable under section 15.50.

Tom James, 109 S.W.3d at 882-83. “It follows that the appeal of an order granting or denying a

temporary injunction based on a covenant not to compete does not present for appellate review the

ultimate question of whether the covenant is enforceable under section 15.50 of the business and

commerce code.” Loye, 156 S.W.3d at 619 (citing TEX. BUS. & COM. CODE ANN. § 15.50). A

determination of “[t]hat issue awaits a final judgment on the merits, such as a final judgment




                                                –10–
entered after a jury or bench trial or a hearing on a motion for summary judgment.” Tom James,

109 S.W.3d at 885.

       We will not consider whether the non-compete provision in the Employment Agreement

is ancillary to an otherwise enforceable contract or supported by new consideration.        That

determination must await a final judgment on the merits. We overrule White’s sixth issue.

                                            CONCLUSION

       We reverse numbered paragraph (1) of the order, which prohibits White from disclosing

Impact Floors’ “Confidential Information” and remand that issue to the trial court for further

proceedings. In all other respects, we affirm the trial court’s order.




                                                   /Craig Stoddart/
                                                   CRAIG STODDART
                                                   JUSTICE



180384F.P05




                                                –11–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 TINA WHITE, Appellant                              On Appeal from the 14th Judicial District
                                                    Court, Dallas County, Texas
 No. 05-18-00384-CV         V.                      Trial Court Cause No. DC-18-00919.
                                                    Opinion delivered by Justice Stoddart.
 IMPACT FLOORS OF TEXAS, LP AND                     Justices Whitehill and Boatright
 IFT, INC., ITS GENERAL PARTNER,                    participating.
 Appellees

        In accordance with this Court’s opinion of this date, the March 15, 2018 order for
issuance of temporary injunction (“Order”) of the trial court is AFFIRMED in part and
REVERSED in part. We REVERSE that portion of the trial court's Order which prohibits
appellant Tina White from disclosing the “Confidential Information” of appellee Impact Floors
of Texas, LP. In all other respects, the trial court's Order is AFFIRMED. We REMAND this
cause to the trial court for further proceedings consistent with this opinion.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 18th day of December, 2018.




                                             –12–
