NUMBER 13-19-00221-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

AMERICAN SURGICAL ASSISTANTS, 

INC., D/B/A AMERICAN SURGICAL 

PROFESSIONALS Appellant,

v.

GEORGE VILLAREAL, Appellee.

On appeal from the 117th District Court

of Nueces County, Texas.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Longoria and Perkes

Memorandum Opinion by Justice Longoria

Appellant American Surgical Assistants, Inc. (American) perfected an appeal from 

a take-nothing judgment rendered against it and in favor of appellee George Villareal. 

American filed suit under the Covenants Not to Compete Act (the Act) for reformation and 
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injunctive relief to enforce noncompete covenants against Villareal. See TEX. BUS. & COM.

CODE ANN. §§ 15.50–.52. The trial court granted a temporary restraining order against 

Villareal, then subsequently dissolved the temporary restraining order and denied 

American’s application for a temporary injunction. After a bench trial on the merits, the 

court rendered final judgment on April 26, 2019, denying all relief sought by American

and awarding attorney’s fees to Villareal. By seven issues, American generally contends 

that the trial court erred by not reforming the covenants to render them enforceable

(issues 1 and 4), concluding that the noncompete covenants were not enforceable (issues

2 and 3), and awarding attorney’s fees (issues 5 through 7). We affirm.

I. BACKGROUND

American provides surgical assistants to surgical facilities and physicians. Villareal

had worked as a surgical assistant in the military and after his service, he worked to obtain 

his certification as a surgical assistant through the National Surgical Assistant 

Association. Villareal then began working for American as a surgical assistant in 

November 2009. American claims that during his employment at American, Villareal

received confidential information pertaining to American’s operations, performance, 

contracts with facilities, objectives and initiatives for improving or increasing its business, 

and financial condition. American also claims that Villareal’s access to American’s clients 

and the patients of those clients necessarily includes access to confidential information. 

Upon his employment with American, Villareal signed an employment agreement which 

also contained a confidentiality agreement, both of which included covenants not to 

compete, non-solicitation agreements, and confidentiality provisions. The employment 
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agreement contained the following relevant language in a “Confidentiality and NonCompetition” section:

Assistants shall not directly or indirectly offer his/her services as described 

in the attached job description or engage in doing business within an 

extended radius of Five Miles from the present address of [American] at 

10039 Bissonnet #250, Houston, Texas 77036 and/or the address of any of 

its client institutions. This covenant shall remain in force for the duration of 

this Agreement and for a period of Two Years from date of termination of 

Agreement.

The confidentiality agreement, in part, stated:

3. Non-Competition and Non-Solicitation The Employee/Independent

Contractor/PRN acknowledges that he or she will acquire considerable 

knowledge about, and expertise in, certain areas of the Employer/

Contractor’s business and that he or she will have knowledge of, and 

contact with, customers and suppliers of the Employer/Contractor and its

Affiliates (as hereafter defined). The Employee/ Independent Contractor/

PRN further acknowledges that he or she may well be able to utilize such 

knowledge and expertise, following termination of his or her service with the 

Employer/Contractor, to the serious detriment of the Employer/Contractor 

in the event that the Employee/Independent Contractor/PRN should solicit

business from customers of the Employer/Contractor or its affiliates. 

Accordingly, the Employee/Independent Contractor/PRN agrees that:

(a) Non-Competition. During his or her employment and for a 

period of two (2) years after termination of his or her 

employment, the Employee/Independent Contractor/PRN 

shall not in any way offer his or her services to any of 

[American’s] client institutions or client surgeons.

(b) Non-Solicitation of Customers. He or she will not, for a 

period of two (2) years after termination of his or her 

employment, directly or indirectly, approach any customer or 

business partner of the Employer/Contractor or its Affiliates 

for the purpose of providing services substantially similar to 

the services provided by the Employer/Contractor or its 

affiliates; and

(c) Non-Solicitation of Employee/Independent Contractor/ 

PRNs. He or she will not for a period of two (2) years after 

termination of his or her employment, directly or indirectly, 

approach, solicit, entice or attempt to approach, solicit or 

entice any of the other Employee/Independent Contractor/
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PRNs of the Employer/Contractor or its Affiliates to leave the 

employment of the Employer/Contractor.

The employment agreement began on November 30, 2009, and was “for an initial period 

of one year unless either party notifies the other of his/her intent to terminate the 

Agreement, in writing, with a fifteen days advance notice.” American and Villareal

renewed the agreement eight times before Villareal resigned in October 2018. Villareal

then began working for Universal Surgical Assistants, Inc. (Universal). American, alleging 

that Villareal was in violation of his signed agreements with American, filed suit under the 

Act for reformation and injunctive relief to enforce the agreements between the parties. 

American sought a temporary restraining order, temporary injunction, reformation of the 

covenants, and a permanent injunction to enforce the covenants as reformed. The 

temporary restraining order was granted, and subsequently expired under its own terms. 

The case was then tried to the bench and the trial court rendered final judgment denying 

American’s requested relief and awarding attorney’s fees to Villareal. This appeal 

followed.

II. ENFORCEABILITY

The Act governs the enforceability of noncompetition agreements. See TEX. BUS.

& COM. CODE ANN. §§ 15.50–.52. The enforceability of a covenant not to compete is a 

question of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 

848 (Tex. 2009). We review the trial court’s determinations of questions of law on a de 

novo basis. Barber v. Colo. Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex. 1995).

Section 15.50 provides in relevant part:

Notwithstanding Section 15.05 of this code, and subject to any applicable 

provision of Subsection (b), a covenant not to compete is enforceable if it is 

ancillary to or part of an otherwise enforceable agreement at the time the 
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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). The requirement of an “otherwise enforceable 

agreement” is satisfied when the covenant is part of an agreement which contains 

“mutual, nonillusory promises.” Marsh USA, Inc. v. Cook, 354 S.W.3d 764, 773 (Tex.

2011). An “otherwise enforceable” agreement “can emanate from at-will employment so 

long as the consideration for any promise is not illusory.” Alex Sheshunoff Mgmt. Servs., 

L.P. v. Johnson, 209 S.W.3d 644, 648 (Tex. 2006). A noncompetition agreement must be 

supported by consideration to be enforceable. Id. at 651; DeSantis v. Wackenhut Corp.,

793 S.W.2d 670, 681 n. 6 (Tex. 1990). “Consideration for a noncompete that is reasonably 

related to an interest worthy of protection, such as trade secrets, confidential information 

or goodwill, satisfies the statutory nexus.” Marsh, 354 S.W.3d at 775; see Lazer Spot, Inc. 

v. Hiring Partners, Inc., 387 S.W.3d 40, 46 (Tex. App.—Texarkana 2012, pet. denied). 

Here, the trial court found that American had “no protectable interest or goodwill 

worthy of protection.” American, however, contends that the record established goodwill

through the development of “close relationships between surgeons and surgical 

assistants” and that Villareal developed such relationships with American’s surgical 

clients. American also argues that it invested time and money into Villareal’s training so 

that he could develop those close relationships. American claims that Villareal gained a 

potential competitive advantage by learning American’s information about “the pay mix of 

surgeons and facilities.” Because of this, American contends that it has an “interest in 

preventing the diversion of this goodwill to a competitor.” 
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A. Employment Agreement

Under § 15.51(b), if the employment agreement involves personal services, the 

burden is on the employer to prove that the covenant is necessary to protect its legitimate 

business interests. See TEX. BUS. & COM. CODE ANN. § 15.51(b). Under the common law, 

the employer must prove that the agreement was necessary. Martin v. Linen Sys. for 

Hosps., Inc., 671 S.W.2d 706, 709 (Tex. App.—Houston [1st Dist.] 1984, no writ). In its 

findings of fact, the trial court found that Villareal did not “approach, solicit, entice, or 

attempt to approach, solicit, or entice [American] employees or customers to leave 

[American]. . .” and that American “did not provide George Villareal with confidential, 

proprietary, or trade secret information.” See Daytona Grp. of Tex., Inc. v. Smith, 800 

S.W.2d 285, 289 (Tex. App.—Corpus Christi–Edinburg 1990, writ denied); see also

Diesel Injection Sales & Servs. v. Renfro, 656 S.W.2d 568, 572 (Tex. App.—Corpus 

Christi–Edinburg 1983, writ ref’d n.r.e.). The trial court also found that the covenant failed 

the balancing test of hardship to the promisor and injury to the public, stating that “[e]ven 

if there were a protectable interest or goodwill worth [sic] of protection, which there is not, 

the hardship of protecting such would be outweighed by the harm to the public and 

George Villareal.”

The Texas Legislature declared that “[e]very contract, combination, or conspiracy 

in restraint of trade or commerce is unlawful.” Marsh, 354 S.W.3d at 770 (quoting TEX.

BUS. & COM. CODE ANN. § 15.05(a)). The Supreme Court of Texas has concluded that 

covenants limiting employees’ professional mobility are unlawful restraints of trade under 

this statute unless they fall within the exception created by the Act. Id. at 768, 770; see 

also id. at 782 (Willett, J., concurring); Forum US, Inc. v. Musselwhite, No. 14-17-00708-
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CV, 2020 WL 4331442, at *5 (Tex. App.—Houston [14th Dist.] July 28, 2020, no pet. h.)

(mem. op.). As the court explained, “[u]nreasonable limitations on employees’ abilities to 

change employers . . . could hinder legitimate competition between businesses and the 

mobility of skilled employees.” Marsh, 354 S.W.3d at 769. The Act provides that a 

covenant is enforceable only if “it contains limitations as to time, geographic 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); see id. § 15.51(c); see also Marsh, 354 S.W.3d at 

777 (“The hallmark of enforcement is whether or not the covenant is reasonable.”); 

DeSantis, 793 S.W.2d at 681 (explaining similar standards of reasonableness that had to 

be met to enforce covenants not to compete at common law).

American contends the trial court erred in its findings because it has a protectable 

interest in goodwill. American’s contention is based on its argument that Villareal

developed his relationships with the surgical clients during the time he worked for 

American, and that American invested “time and money into Villar[r]eal’s training in the 

cardiothoracic specialty” that allowed him to develop such relationships. American, 

therefore, argues that the goodwill developed by Villareal accrued to the benefit of 

American. 

Texas law has long recognized that goodwill, although intangible, is 

property and is an integral part of the business just as its physical assets 

are. Alamo Lumber Co. v. Fahrenthold, 58 S.W.2d 1085, 1088 (Tex. App.—

Beaumont 1933, writ ref’d); Taormina v. Culicchia, 355 S.W.2d 569, 573 

(Tex. App.—El Paso 1962, writ ref’d n.r.e.). Goodwill is defined as:

the advantage or benefits which is acquired by an 

establishment beyond the mere value of the capital stock, 

funds or property employed therein, in consequence of the 

general public patronage and encouragement which it 
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receives from constant and habitual customers on account of 

its local position, or common celebrity, or reputation for skill, 

or influence, or punctuality, or from other accidental 

circumstances or necessities, or even from ancient partialities 

or prejudices.

Taormina, 355 S.W.2d at 573; see also BLACK’S LAW DICTIONARY 703 (7th 

ed. 1999) (defining “goodwill” as “[a] business’s reputation, patronage, and 

other intangible assets that are considered when appraising the business .

. .”).

Marsh, 354 S.W.3d at 777–78. Goodwill cannot merely be a blanket assertion by which 

American can limit Villareal’s mobility in his employment. See id. at 784 (Willett, J.,

concurring) (noting that “the evidentiary record must demonstrate special circumstances 

beyond the bruises of ordinary competition such that, absent the covenant, [appellee]

would possess a grossly unfair competitive advantage”). While the Act permits a 

noncompete clause, it is only “to the extent 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.” See TEX. BUS. & COM. CODE ANN. § 15.50(a). 

The trial court’s finding that even if American had goodwill worthy of protection, the 

burden placed on Villareal would outweigh any hardship American would face is not 

contested by American. Although findings of fact are not conclusive when, as in this case, 

a complete reporter’s record is provided, “unchallenged findings of fact are binding on the 

appellate court unless the contrary is established as a matter of law, or if there is no 

evidence to support the finding.” City of Corpus Christi v. Taylor, 126 S.W.3d 712, 717 

(Tex. App.—Corpus Christi–Edinburg 2004, pet. withdrawn). Instead, American argues

that the goodwill created between Villareal and the doctors he assisted is goodwill earned 

by American and deserves protection through the noncompete. American further 
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contends that the noncompete is needed to protect its investments in Villareal’s 

specialized training in the cardiovascular field as well as to ensure Villareal does not 

disclose the confidential information he received through his employment with American.

However, the trial court heard evidence that enforcing the covenant would indeed be a 

burden on Villareal as he testified that he would not be able to be employed in his field 

where he lives, and may potentially hinder his ability to perform cardiovascular 

procedures at all. According to Villareal’s testimony, the doctors performing the 

cardiovascular procedures would also be negatively affected as they would be limited in 

assistants in a field where there are not many available. Accordingly, we are bound by 

this unchallenged finding of fact. We conclude that the covenant not to compete here 

would hinder legitimate competition between businesses and the mobility of skilled 

employees and is therefore unenforceable. See Marsh, 354 S.W.3d at 769. When a 

covenant not to compete is not necessary to protect the employer’s legitimate business 

interests, it cannot be reformed. See, e.g., Neurodiagnostic Tex, L.L.C. v. Pierce, 506 

S.W.3d 153, 166 (Tex. App.—Tyler 2016, no pet.); Daytona, 800 S.W.2d at 290.

B. Confidentiality Agreement

American also attempts to enforce a confidentiality agreement signed by Villareal.

According to American, Villareal was provided with access to patient information and “the 

status and terms of American’s contract with the Christus Spohn hospital system.”

American also contends that Villareal attended staff meetings during which he learned 

internal information such as performance data and “the pay mix of each facility’s 

commercial to noncommercial cases in Corpus Christi.” American further argues that 

Villareal was involved in two negotiations with potential client facilities and learned of 
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American’s pricing model. In contrast, Villareal contends that he was not provided with 

any confidential information, and even if he were, he did not share any such information 

and thus did not violate the confidentiality agreement.

The confidentiality agreement defined “confidential information” as:

information in any form not generally known to the public disclosed to or 

acquired by the Employee/Independent Contractor/PRN directly or 

indirectly from the Employer/Contractor or any clients business partners or

affiliates of the Employer/Contractor during the term of the 

Employee/Independent Contractor/PRN’s employment/contract with the 

Employer/Contractor, including, without limitation but shall not include any 

information which was known to the Employee/Independent Contractor/

PRN prior to the date of the Employee/Independent Contractor/ PRN’s 

employment with the Employer/Contractor or which was publicly disclosed

otherwise than by breach of this Agreement:

(i) information relating to the research, developments, systems, 

operations, clients and business activities of the 

Employer/Contractor or its business partners or Affiliates;

(ii) information received from any clients, business partners or 

Affiliates of the Employer/Contractor;

(iii) information specifically designated by the Employer/ 

Contractor as confidential;

(iv) information specifically designated by a client, business 

partner or Affiliate of the Employer/Contractor as confidential;

and

(v) information required to be maintained in confidence by the 

Employer/Contractor pursuant to an agreement with a client, 

business partner, associate or other person[.]

The trial court found that there was no consideration for the confidentiality 

provisions of the employment agreement or for the confidentiality agreement itself and 

that American did not provide Villareal with confidential, proprietary, or trade secret 

information.
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A promise to provide confidential information is illusory and cannot be the basis of 

an “otherwise enforceable agreement” unless (1) the employer promises to deliver the 

confidential information to the employee and (2) the employer actually delivers the 

confidential information at or near the time the employee makes the promise to keep the 

information confidential. Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 297 (Tex.

App.—Beaumont 2004, no pet.) (finding that employer’s promise to provide confidential 

information was not illusory where, subsequent to signing the agreement, the employer 

made confidential information available to the employee on a daily basis); see TMC 

Worldwide, L.P. v. Gray, 178 S.W.3d 29, 38 (Tex. App.—Houston [1st Dist.] 2005, no 

pet.). Here, the information that American contends was confidential was regularly 

received by Villareal throughout his course of employment. However, the trial court heard 

testimony that much of the information was ascertainable through sources outside of

American. Villareal testified that “information that would allow other assistants to know 

what hospitals were surgical assistant friendly, and what hospitals you could potentially 

get work or work for a group” was readily available online through “open resource” 

documents that were “surgical assistant friendly.” Villareal also explained that he was not 

privy to information such as contracts between American and the hospitals or the payment 

information used by American, but that he is aware that American, like all surgical 

assistant groups, goes through insurance for payment. Further, as it relates to patient 

information, the information is protected by the Health Insurance Portability and 

Accountability Act (HIPAA) and no confidentiality provision through his employment with 

American was necessary to protect such information. Accordingly, the trial court had 

evidence before it from which it could have determined that the information received by 
12

Villareal during the course of his employment was not considered confidential. See 

Edwards v. Pena, 38 S.W.3d 191, 199 (Tex. App.—Corpus Christi–Edinburg 2001, no 

pet.).

We overrule American’s first through fourth issues.

III. ATTORNEY’S FEES

In its fifth, sixth, and seventh issues, American contends that the trial court erred 

in awarding attorney’s fees to Villareal. Section 15.51(c) of the Act states:

If the primary purpose of the agreement to which the covenant is ancillary 

is to obligate the promisor to render personal services, the promisor 

establishes that the promisee knew at the time of the execution of the 

agreement that the covenant did not contain limitations as to time, 

geographical area, and scope of activity to be restrained that were 

reasonable and the limitations imposed a greater restraint than necessary 

to protect the goodwill or other business interest of the promisee, and the 

promisee sought to enforce the covenant to a greater extent than was 

necessary to protect the goodwill or other business interest of the promisee, 

the court may award the promisor the costs, including reasonable attorney’s 

fees, actually and reasonably incurred by the promisor in defending the 

action to enforce the covenant.

TEX. BUS. & COM. CODE ANN. § 15.51(c). Because the statute provides that “the court may 

award” attorney’s fees, the award of attorney’s fees is within the trial court’s discretion 

and is not mandatory. Spring v. Walthall, Sachse & Pipes, Inc., No. 04–09–00474–CV, 

2010 WL 2102988, at *11 (Tex. App.—San Antonio May 26, 2010, no pet.) (mem. op.) 

(citing Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (holding that statutes providing 

that court “may award” are permissive and require abuse of discretion to overturn order 

granting or denying award)). As a predicate to an award of attorney fees under § 15.51(c), 

a plaintiff must prove that (1) defendant knew at the time the employment agreement was 

executed that the covenant did not contain limitations on time, geographical area, and 

scope of activity to be restrained that were reasonable and the limitations imposed a 
13

greater restraint than necessary to protect defendant’s goodwill or other business interest, 

and (2) defendant sought to enforce the covenant to a greater extent than was necessary 

to protect its goodwill or other business interest. Sentinel Integrity Sols., Inc. v. Mistras 

Grp., Inc., 414 S.W.3d 911, 924–25 (Tex. App.—Houston [1st Dist.] 2013, pet. denied); 

see also Jackson v. Ali Zaher Enters., LLC, No. 05-18-00288-CV, 2019 WL 698019, at *2 

(Tex. App.—Dallas Feb. 20, 2019, no pet.) (mem. op.); Spring, 2010 WL 2102988, at *11.

The trial court found 

[American] knew at the time of the November 2016 renewal of [the 

employment agreement] that the contractual restrictive covenants did not 

contain limitations as to time, geographical area, and scope of activity to be 

restrained that were reasonable and the limitations imposed a greater 

restraint than necessary to protect any goodwill or other business interest, 

and sought to enforce the contractual restrictive covenants to a greater 

extent than was necessary to protect its goodwill or other business interest,

if any.

American argues first that Villareal cannot recover attorney’s fees related to 

American’s request for reformation and enforcement of the restrictive covenants in the 

confidentiality agreement because it is not a contract for personal services. However, the 

trial court found that “the primary purpose of the agreements to which the contractual 

restrictive covenants are ancillary is to obligate the promisor to render personal services.” 

Aside from the mere assertion that the confidentiality agreement is not for personal 

services, American provides no additional argument on this point. We conclude the issue 

has been inadequately briefed. See TEX. R. APP. P. 38.1(i). In any event, the 

confidentiality agreement is part of the employment agreement, which is indisputably for 

the rendering of personal services. 

Next, American contends that there “is no evidence of the two requisites for an 

award of attorney’s fees to Villareal under Section 15.51(c).” The first element Villareal
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was required to prove to recover attorney’s fees was that American knew at the time of 

the covenant’s execution that its restrictions were unreasonable and imposed a greater 

restraint than was necessary. See Sentinel, 414 S.W.3d at 924. Villareal’s argument is 

that American knew at the time that the agreement with Villareal was annually renewed, 

based on its previous recent lawsuit, that the restrictions were unreasonable and imposed 

a greater restraint than was necessary. 

The employment agreement renewed annually on November 30, beginning in 

2009, with the last renewal on November 30, 2017, ending with Villareal’s resignation in 

October 2018. The trial court heard testimony, including an affidavit from Villareal’s 

attorney, and took judicial notice of a recent prior lawsuit regarding the enforcement of 

American’s restrictive covenants on a previous employee of American. In American 

Surgical Assistants, Inc. d/b/a American Surgical Professionals v. Juan “Johnny” De Dios 

Villegas, et al., the trial court in the underlying cause entered a take nothing judgment 

against American and found that

enforcement of the covenant not to compete in Corpus Christi would harm 

the public interest in the Corpus Christi market by resulting in a reduction in 

the quality of health care and continuity of care by depriving surgeons of 

their choice of surgical assistants, which has the effect of depriving the 

public access to surgeons with surgical assistants of superior knowledge 

and skills related to and inherent to their relationships to these surgeons 

and procedures performed.1

The trial court in the Villegas matter entered final judgment on February 19, 2016.

Subsequently, Villareal’s employment agreement renewed twice, with no changes to the 

1 The trial court in the underlying matter in the case at bar took judicial notice of the findings of fact 

and conclusions of law of the trial court in American Surgical Assistants, Inc. d/b/a American Surgical 

Professionals v. Juan “Johnny” De Dios Villegas, et al., cause number 2014-DCV-5282-E, heard in the 

148th Judicial District of Nueces County, Texas. The findings of fact and conclusions of law in that matter 

are part of the record in the case at bar. 
15

covenant not to compete. American does not dispute that the trial court in the Villegas

matter previously found the covenants to be unenforceable, but rather argues that 

Villareal failed to prove that American had knowledge of such unenforceability at the time 

the employment agreement was first executed in 2009. 

We disagree that Villareal was required to show American’s knowledge of 

enforceability in 2009. The employment agreement states that the agreement 

will begin on November 30, 2009[,] for an initial period of one year unless 

either party notifies the other of his/her intent to terminate the Agreement,

in writing, with a fifteen days advance notice. . . . This Agreement shall be 

renewed for equal an [sic] period unless either party notifies the other of 

his/her intent to terminate the Agreement, in writing, with a fifteen days 

advance notice.

Renewal is defined as “the re-creation of a legal relationship or the replacement of an old 

contract with a new contract, as opposed to the mere extension of a previous relationship 

or contract.” Renewal, BLACK’S LAW DICTIONARY (11th ed. 2019). Each renewal of the 

agreement between American and Villareal constituted a new contract. See id. As such, 

each time the agreement was renewed after the Villegas ruling, American had the 

knowledge that the restrictive covenants contained therein were “unreasonable and 

imposed a greater restraint than was necessary.” See Sentinel, 414 S.W.3d at 924. We 

conclude this is sufficient to satisfy the first prong under § 15.51(c).

As to the second prong required under § 15.51(c), American states that Villareal

did not meet his burden in proving that American sought to enforce the covenant to “a 

greater extent than was necessary to protect the goodwill or other business interest of the 

promisee.” TEX. BUS. & COM. CODE ANN. § 15.51(c). As with the first prong, Villareal

presented evidence to the trial court that American sought to enforce the same covenant 

in a prior proceeding, and it was determined by the trial court in Villegas that the goodwill 
16

American sought to protect was goodwill between the surgeon and the surgical assistant 

and did not inure to the benefit of American. Villegas, 2017 WL 1284780, at *1. American 

was aware that the covenant not to compete contained in Villareal’s employment 

agreement was unenforceable as written, yet American did not change the covenant 

going forward and instead further sought to enforce it against Villareal. Accordingly,

Villareal met his burden under § 15.51(c) to show that American attempted to enforce the 

covenant to a greater extent than necessary to protect any goodwill it believed it had.

American’s fifth, sixth, and seventh issues are overruled.

IV. CONCLUSION

The judgment of the trial court is affirmed.

NORA L. LONGORIA

Justice

Delivered and filed the

8th day of October, 2020.