COURT OF APPEALS 

SECOND DISTRICT OF TEXAS 

FORT WORTH 

NO. 02-16-00070-CV 

HENRY F. COFFEEN III 

MANAGEMENT, INC., D/B/A 

COFFEEN MANAGEMENT 

COMPANY 

 APPELLANT

V. 

THOMAS MUSGRAVE IV, 

CHRISTINA MORGAN, AND 

RICHARD W. DEWESE 

 APPELLEES

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY 

TRIAL COURT NO. 096-283020-15 

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MEMORANDUM OPINION1

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Appellant Henry F. Coffeen III Management, Inc., d/b/a Coffeen 

Management Company (CMC) appeals from the trial court’s order denying its 

 1See Tex. R. App. P. 47.4. 
2 

application for a temporary injunction against Appellee Thomas Musgrave IV.2 

See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2016) 

(authorizing an interlocutory appeal from an order denying a request for a 

temporary injunction). We affirm. 

Background 

 CMC is a licensed insurance agency that sells insurance products, such as 

extended warranty policies and GAP insurance, to banks, credit unions, and 

auto, boat, and recreational vehicle dealerships. CMC also provides dealerships 

with training on how to sell more vehicles and more insurance products. 

Musgrave joined CMC in January 2011 as an independent contractor and was 

given the title of president. Musgrave’s duties included managing day-to-day 

operations, meeting clients, hiring and firing personnel, supervising and 

managing sales representatives, and assisting CMC in enforcing noncompete, 

antisolicitation, and confidentiality agreements signed by CMC’s personnel. 

Musgrave received confidential and proprietary information such as 

product information; pricing and cost information; information regarding profits, 

markets, and sales; customer lists; financial data; and plans and strategies for 

further business development. In December 2012, at CMC’s request, Musgrave 

signed a “Non-Compete Agreement” in which he agreed not to disclose CMC’s 

confidential information without CMC’s written consent. The agreement also 

 2Christina Morgan and Richard W. Dewese are also listed as Appellees in 

the case style, but they are not parties to this appeal. 
3 

contains noncompete and antisolicitation provisions that CMC claims prohibit 

Musgrave from competing with CMC or soliciting CMC’s clients or customers for 

two years following the termination of Musgrave’s employment with CMC. 

In August 2015, Musgrave began making trips to New Mexico to visit a 

CMC client, Tate Branch Automotive (TBA), which owns three automobile 

dealerships there. Initially, Musgrave’s trips to New Mexico were to ensure that 

CMC’s TBA account was properly serviced. Shortly thereafter, Musgrave also 

began working with TBA’s owner, Tate Branch, on the acquisition of additional 

automobile dealerships in New Mexico. Advising customers on dealership 

acquisitions is not a part of CMC’s business, and neither Branch nor TBA paid 

CMC for the acquisition assistance Musgrave provided. CMC permitted 

Musgrave to work with Branch because if Branch acquired additional 

dealerships, CMC might gain them as customers. 

Musgrave resigned from his role as independent contractor and president 

of CMC on December 17, 2015. Musgrave continued to advise Branch and TBA 

on the acquisition of dealerships and also began offering advice on fixed 

operations, i.e. parts and service, at TBA’s existing dealerships. Musgrave and 

Branch had general discussions about Branch employing Musgrave for continued 

work on the acquisitions and to oversee the operations at TBA’s automobile 

dealerships. 

CMC sued Musgrave for breach of contract, violations of the Texas 

Uniform Trade Secrets Act, misappropriation of confidential information and trade 
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secrets, tortious interference for existing and prospective business relations, civil 

conspiracy, violations of the Texas Theft Liability Act, and business 

disparagement. CMC also sought a temporary restraining order, temporary and 

permanent injunctions, and attorney’s fees. The trial court granted CMC a 

temporary restraining order prohibiting Musgrave from directly or indirectly calling 

upon, meeting with, communicating with, or soliciting for the purpose of selling or 

marketing any products or services that comprise any part of CMC’s business to 

specified CMC clients, including the three Tate Branch dealerships; using or 

disclosing CMC’s confidential information and trade secrets; and altering, 

deleting, destroying, hiding, and secreting any document, record, disc, or other 

written or electronic media containing or describing CMC’s confidential 

information and trade secrets. 

The trial court then held a hearing on CMC’s application for temporary 

injunction. After the hearing, the trial court found (1) the Non-Compete 

Agreement was not supported by consideration; (2) there were no geographical 

boundaries in the Non-Compete Agreement; (3) Musgrave had not caused any 

current irreparable harm to CMC; (4) any future irreparable harm to CMC caused 

by Musgrave’s activities was speculative; and (5) there was no collateral 

agreement in connection with restrictions sought to be enforced under the NonCompete Agreement. The trial court therefore denied CMC’s application. 

CMC has appealed. In three issues, CMC argues the trial court abused its 

discretion by denying its application for temporary injunction because (1) the 
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Non-Compete Agreement was supported by consideration, (2) the lack of 

geographic restriction did not render the Non-Compete Agreement 

unenforceable, and alternatively, the trial court should have reformed the 

agreement to apply to the clients with whom Musgrave is familiar, and (3) CMC 

established a likelihood of success on the merits of its claims and that 

Musgrave’s conduct threatened to cause CMC imminent and irreparable injury. 

Standard of Review 

The purpose of a temporary injunction 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) (citing Walling v. Metcalfe, 863 S.W.2d 56, 

57 (Tex. 1993)). Whether to grant or deny a temporary injunction is within the 

trial court’s sound discretion. Id.

A temporary injunction is an extraordinary remedy and will not issue as a 

matter of right. Id. To obtain a temporary injunction, an applicant must plead 

and prove (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. A probable right of recovery is shown by alleging a cause of action and 

presenting evidence tending to sustain it. Frequent Flyer Depot, Inc. v. Am. 

Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort Worth 2009, pet. denied), 

cert. denied, 559 U.S. 1036 (2010). An injury is irreparable if damages would not 

adequately compensate the injured party or if they cannot be measured by any 
6 

certain pecuniary standard. Butnaru, 84 S.W.3d at 204; Frequent Flyer Depot, 

281 S.W.3d at 220. 

Whether to grant or deny a request for a temporary injunction is within the 

trial court’s discretion, and we will not reverse its decision absent a clear abuse 

of discretion. Butnaru, 84 S.W.3d at 204. When, as here, no findings of fact or 

conclusions of law are filed,3 the trial court’s determination of whether to grant or 

deny a temporary injunction must be upheld on any legal theory supported by the 

record. LasikPlus of Tex., P.C. v. Mattioli, 418 S.W.3d 210, 216 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). We review the evidence submitted to the trial 

court in the light most favorable to the court’s ruling, draw all legitimate 

inferences from the evidence, and defer to the trial court’s resolution of conflicting 

evidence. See IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 

196 (Tex. App.—Fort Worth 2005, no pet.). A reviewing court will not reverse an 

order on a temporary injunction unless the trial court’s action was so arbitrary 

that it exceeded the bounds of reasonable discretion. EMSL Analytical, Inc. v. 

Younker, 154 S.W.3d 693, 696 (Tex. App.—Houston [14th Dist.] 2004, no pet.). 

 3The trial court’s stated reasons for denying CMC’s application for 

temporary injunction do not meet the requirements of civil procedure rule 299a 

and do not control the outcome of this case. See Tex. R. Civ. P. 299a (requiring 

findings of fact to be separately filed and not simply recited in the judgment); Tom 

James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 884 (Tex. App.—Dallas 2003, no 

pet.); see also Samuelson v. United Healthcare of Tex., Inc., 79 S.W.3d 706, 

710 (Tex. App.—Fort Worth 2002, no pet.) (“Where an abuse of discretion 

standard of review applies to a trial court’s ruling, findings of fact and conclusions 

of law, while helpful, are not required.”) (citing Crouch v. Tenneco, Inc., 

853 S.W.2d 643, 649 & n.3 (Tex. App.—Waco 1993, writ denied) (op. on reh’g)). 
7 

The trial court does not abuse its discretion when basing its decision concerning 

a temporary injunction on conflicting evidence, nor does it abuse its discretion 

when some evidence of substantive and probative character exists to support its 

decision. Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 292 (Tex. App.—

Beaumont 2004, no pet.). 

Discussion 

To have obtained a temporary injunction, CMC was required to prove that 

it had a probable right to recovery on its causes of action against Musgrave. See 

Frequent Flyer Depot, 281 S.W.3d at 220. CMC could have proven a probable 

right to recovery by alleging the existence of a right and presenting evidence 

tending to show that right was being denied. See Anesthesiology Assocs., P.A. 

v. Tex. Anesthesia Grp., P.A., 190 S.W.3d 891, 897 (Tex. App.—Dallas 2006, no 

pet.). The cause of action relevant to CMC’s request for a temporary injunction is 

CMC’s breach of contract claim against Musgrave, which is based upon the 

noncompete and antisolicitation provisions in the Non-Compete Agreement. 

 An appeal from an order denying a temporary injunction based on 

noncompete clauses does not present for appellate review the ultimate question 

of whether the noncompete agreement is enforceable under section 15.50 of the 

business and commerce code. LasikPlus of Tex., 418 S.W.3d at 216; Tom 

James of Dallas, 109 S.W.3d at 882–83; see Tex. Bus. & Com. Code Ann. 

§ 15.50(a) (West 2011) (stating that a covenant not to compete is enforceable if it 

(1) is ancillary to or part of an otherwise enforceable agreement and (2) contains 
8 

reasonable limitations as to time, geographic area, and scope of activity that do 

not impose a greater restraint than is necessary). “We therefore look at the 

enforceability of the noncompete, but only to the extent necessary to determine 

whether the requirements for a temporary injunction have been met.” Tranter, 

Inc. v. Liss, No. 02-13-00167-CV, 2014 WL 1257278, at *3 (Tex. App.—Fort 

Worth Mar. 27, 2014, no pet.) (mem. op.). In this case, however, it is 

unnecessary for us to evaluate the enforceability of the Non-Compete Agreement 

under section 15.50 because, as pointed out by Musgrave, the noncompete and 

antisolicitation provisions do not restrict Musgrave’s post-termination activities. 

The noncompete and antisolicitation provisions at issue in this case are as 

follows: 

(b) Competitive Activities - Voluntary Termination, Termination with 

Cause. During the Term[4] of this Agreement and for a period of 

two (2) years after the “CMC Account Development Sub Agent 

Agreement” is terminated, regardless of cause, Representative[5] 

shall not, directly or indirectly (whether for compensation or 

otherwise), alone or as an officer, director, shareholder (excepting 

not more than five percent (5%) stockholdings for investment 

purposes in securities of publicly-held and traded companies), 

partner, associate, creditor, employee, agent, principal, trustee, 

beneficiary of a trust, salesman, consultant, co-venturer, owner, 

representative, advisor or in any other capacity whatsoever, take 

any action in or participate with or become interested in or 

associated with any person, firm, partnership, corporation or other 

entity whatsoever that is engaged, or plans to engage in any manner 

 4Despite being capitalized, the “Term” of the Non-Compete Agreement is 

not defined. 

5The agreement identified Musgrave as the Representative and CMC as 

the Corporation. 
9 

in the business of the solicitation, negotiation, sale, installation and 

servicing of automobile warranties, finance reserve products, 

aftermarket, computer training products, credit life insurance and 

management consulting with automobile dealers, banks, credit 

unions, and/or affiliated or associated companies at any time 

during the Term (or which is in development to be manufactured 

and/or marketed by the Corporation or any affiliate upon termination 

of this Agreement) or any other related business in which the 

Corporation and its subsidiaries and affiliates may engage during the 

Term of this Agreement, in any market served, in any state, either 

currently or at any time during the Term, by the Corporation and/or 

any of such subsidiaries and affiliates. 

. . . . 

(c) Antisolicitation. Representative agrees that during the Term of 

the CMC Account Development Sub Agent Agreement, and for a 

period of two (2) years after termination of the Agreement, he

will not influence or attempt to influence clients/customers of the

Corporation (regardless of geographic region) or any of its present or

future subsidiaries or affiliates, either directly or indirectly, to divert

their business to any other individual, partnership, firm, corporation 

or other entity. [Emphasis added.] 

 CMC claims that the restrictions in these two provisions continue for two 

years following the termination of Musgrave’s employment with CMC. However, 

both provisions state that the restrictions expire two years after the termination of 

the “CMC Account Development Sub Agent Agreement.” Both Henry Coffeen, 

the owner of CMC, and Musgrave testified at the temporary injunction hearing 

that Musgrave was not a subagent for CMC and that he did not have a “CMC 

Account Development Sub Agent Agreement” with CMC.6 Thus, the noncompete 

 6A subagent is a sales representative, and the “CMC Account 

Development Sub Agent Agreement” is an agreement CMC enters into with its 

sales representatives. 
10 

and antisolicitation provisions do not restrict Musgrave’s post-termination 

activities, and CMC therefore did not show a probable right to recovery on its 

claim that Musgrave breached the Non-Compete Agreement. We therefore 

conclude and hold that the trial court did not abuse its discretion by denying 

CMC’s application for temporary injunction. See Rimes v. Club Corp. of Am., 

542 S.W.2d 909, 912 (Tex. Civ. App.—Dallas 1976, writ ref’d n.r.e.) (stating that 

a court cannot “extend the period provided in a restrictive covenant contained in 

an employment contract” and holding that the trial court abused its discretion by 

temporarily enjoining former employees because former employer could not 

show a probable right of recovery when the two-year restrictive covenant had 

expired); cf. Weatherford Oil Tool Co. v. Campbell, 340 S.W.2d 950, 952 (Tex. 

1960) (indicating that the issue of reformation of a noncompetition covenant 

becomes moot after the term of the covenant has expired); Leon’s Fine Foods, 

Inc. v. McClearin, No. 05-97-01198-CV, 2000 WL 277135, at *1 (Tex. App.—

Dallas Mar. 15, 2000, pet. denied) (not designated for publication) (“Once the 

non-competition period ends, the trial court’s ability to enforce the covenant by 

injunction becomes moot.”). 

Accordingly, we overrule the portion of CMC’s third issue in which it 

asserts that it established a likelihood of success on the merits of its claim. 

Conclusion 

 Because we have determined that the trial court could have denied CMC’s 

application for temporary injunction because it did not show a probable right to 
11 

recovery, we need not address the remainder of CMC’s issues. See Tex. R. 

App. P. 47.1. Accordingly, we affirm the trial court’s order denying CMC’s 

application for temporary injunction. 

/s/ Anne Gardner 

ANNE GARDNER 

JUSTICE 

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ. 

DELIVERED: October 27, 2016