Oral Argument Requested August 13, 2015 

No. 12-15-00141-CV

____________________________ 

IN THE COURT OF APPEALS 

TWELFTH JUDICIAL DISTRICT OF TEXAS 

TYLER, TEXAS 

_____________________________ 

MORRISON SUPPLY COMPANY, LLC and PATRIOT SUPPLY 

HOLDINGS, INC. 

v.

SCOTT HILBURN and MIKE ANTHONY 

_____________________________ 

REPLY BRIEF OF APPELLANTS 

_____________________________ 

On Appeal from the 7th Judicial District Court, 

Smith County, Texas 

Trial Court No. 15-0792-A 

_______________________________ 

Michael E. Starr

State Bar No. 19078400

COGHLAN CROWSON LLP

1127 Judson Road

Suite 211

Longview, Texas 75606

903.758.5543

mstarr@ccfww.com

Vanessa Griffith

State Bar No. 00790469

Thomas S. Leatherbury

State Bar No. 12095275

Stephen S. Gilstrap

State Bar No. 24078563

VINSON & ELKINS LLP

2001 Ross Avenue

Suite 3700

Dallas, Texas 75201

214.220.7713

214.999.7713 (facsimile)

vgriffith@velaw.com

tleatherbury@velaw.com

sgilstrap@velaw.com

Attorneys for Appellants Morrison Supply Company, LLC 

and Patriot Supply Holdings, Inc.

ACCEPTED

12-15-00141-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

8/13/2015 3:50:20 PM

CATHY LUSK

CLERK

 FILED IN 12th COURT OF APPEALS TYLER, TEXAS 8/13/2015 3:50:20 PM CATHY S. LUSK Clerk
ii

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................. ii

INDEX OF AUTHORITIES..............................................................................................iv

RECORD REFERENCES ................................................................................................vi

RESPONSE TO APPELLEES’ STATEMENT OF FACTS.......................................................1

ARGUMENT .................................................................................................................3

I. Morrison Properly Challenged All Aspects of the Trial Court’s 

Ruling...............................................................................................................3

A. Morrison Challenged Every Implied Finding Made by the Trial 

Court, and Thus Presented All Arguments for Appellate 

Review...................................................................................................3

B. Regardless, the May 13, 2015 Letter Can Be Construed as 

Findings of Fact/Conclusions of Law Under This Court’s 

Precedents..............................................................................................5

II. The Evidence Demonstrates That Morrison Proved Each Element of 

Its Claim for a Temporary Injunction..............................................................8

A. Morrison Proved the Existence of a Valid Contract. ............................8

1. Anthony and Hilburn Received Consideration in 

Exchange for Entering into the Agreements...............................8

2. The Restrictions Sought in the Temporary Injunction 

Are Reasonable. ........................................................................14

B. The Evidence Demonstrates That Anthony and Hilburn 

Breached the Agreements....................................................................15

1. Anthony and Hilburn Breached Their NonCompetition Obligations...........................................................15

2. Anthony and Hilburn Breached Their NonSolicitation Obligations. ...........................................................16

C. None of Anthony and Hilburn’s Defenses Provides a Basis for 

Denying Morrison’s Application for a Temporary Injunction. ..........17

D. The Evidence Demonstrates That Morrison Has a Probable, 

Imminent, and Irreparable Injury for Which There Is No 

Adequate Remedy at Law. ..................................................................19
iii

III. This Court Should Order the Trial Court to Reform the Agreements 

on Remand. ....................................................................................................22

A. This Court Has Jurisdiction to Consider This Issue and Order 

Reformation.........................................................................................22

B. Morrison Is Entitled to Reformation at this Stage of the 

Proceedings. ........................................................................................25

CONCLUSION AND PRAYER .......................................................................................26

CERTIFICATE OF COMPLIANCE ..................................................................................27

CERTIFICATE OF SERVICE..........................................................................................27
iv

INDEX OF AUTHORITIES

Cases

Alex Sheshunoff Mgmt. Servs., LP. v. Johnson,

209 S.W.3d 644 (Tex. 2006)................................................................................10

Butler v. Arrow Mirror & Glass, Inc.,

51 S.W.3d 787 (Tex. App.—Houston [1st Dist.] 2001, no pet.).........................15

CDX Holdings, Inc. v. Heddon,

No. 12-CV-126, 2012 WL 11019355 (N.D. Tex. Mar. 2, 2012).........................24

Cobb v. Caye Publ’g Grp., Inc.,

322 S.W.3d 780 (Tex. App.—Fort Worth 2010, no pet.)....................................23

Curtis v. Ziff Energy Grp., Ltd.,

12 S.W.3d 114 (Tex. App.—Houston [14th Dist.] 1999, no pet.).......................15

DRC Parts & Accessories, L.L.C. v. VM Motori, S.P.A.,

112 S.W.3d 854 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)..............18

Duddlesten v. Klemm,

No. 06-08-00106-CV, 2009 WL 635153

(Tex. App.—Texarkana Mar. 13, 2009, no pet.) ...................................................7

Frequent Flyer Depot, Inc. v. Am. Airlines, Inc.,

281 S.W.3d 215 (Tex. App.—Fort Worth 2009, pet. denied).............................20

Frey v. DeCordova Bend Estate Owners’ Ass’n,

647 S.W.2d 246 (Tex. 1983)................................................................................20

In re Estate of Miller,

446 S.W.3d 445 (Tex. App.—Tyler 2014, no pet.)...........................................5, 6

In re Halliburton Co.,

80 S.W.3d 566 (Tex. 2002)..................................................................... 13, 14, 18

In re Odyssey Healthcare, Inc.,

310 S.W.3d 419 (Tex. 2010)................................................................................13

Kendrick v. Garcia,

171 S.W.3d 698 (Tex. App.—Eastland 2005, pet. denied) ...................................7

Marsh USA Inc. v. Cook,

354 S.W.3d 764 (Tex. 2011)..................................................................... 8, 13, 17

Martin v. Linen Sys. for Hosps., Inc.,

671 S.W.2d 706 (Tex. App.—Houston [1st Dist.] 1984, no writ).......................20
v

McNeilus Companies, Inc. v. Sams,

971 S.W.2d 507 (Tex. App.—Dallas 1997, no pet.)............................................22

Moore v. Jet Stream Investments, Ltd.,

315 S.W.3d 195 (Tex. App.—Texarkana 2010, pet. denied)................................7

Poole v. U.S. Money Reserve, Inc.,

No. 09-08-137-CV, 2008 WL 4735602

(Tex. App.—Beaumont 2008, no pet.) ......................................................... 23, 25

Rugen v. Interactive Bus. Sys., Inc.,

864 S.W.2d 548 (Tex. App.—Dallas 1993, no writ)...........................................21

Sadler Clinic Ass’n, P.A. v. Hart,

No. 09-09-00452-CV, 2010 WL 114241

(Tex. App.—Beaumont Jan. 14, 2010, no pet.)...................................................22

Stone v. Griffin Commc’ns & Sec. Sys., Inc.,

53 S.W.3d 687 (Tex. App.—Tyler 2001, no pet.)...............................................15

TransPerfect Translations, Inc. v. Leslie,

594 F. Supp. 2d 742 (S.D. Tex. 2009).......................................................... 23, 25

Tranter, Inc. v. Liss,

No. 02-13-00167-CV, 2014 WL 1257278

(Tex. App.—Fort Worth Mar. 27, 2014, no pet.) ......................................... 19, 23

Villa Nova Resort, Inc. v. State,

711 S.W.2d 120 (Tex. App.—Corpus Christi 1986, no writ)................................6

Webb v. Hartman Newspapers, Inc.,

793 S.W.2d 302 (Tex. App.—Houston [14th Dist.] 1990, no writ)....................23

Wright v. Sport Supply Grp., Inc.,

137 S.W.3d 289 (Tex. App.—Beaumont 2004, no pet.) .............................. 23, 25

Wright v. Sydow,

173 S.W.3d 534 (Tex. App.—Houston [14th Dist.] 2004, pet. denied)..............18

Statutes

TEX. BUS. & COMM. CODE § 15.51(c)......................................................................23
vi

RECORD REFERENCES

Citations to the record and appendix are formatted as they were in the Brief 

of Appellants, with the following addition:

(1) Supplemental Reporter’s Record for the Supp. RR Page: Line Nos.

July 10, 2015 Hearing on Motion to Seal
1

TO THE HONORABLE TWELFTH COURT OF APPEALS: 

Morrison Supply Company, LLC and Patriot Supply Holdings, Inc. 

(collectively, “Morrison”) respectfully submit this Appellants’ Reply Brief: 

RESPONSE TO APPELLEES’ STATEMENT OF FACTS

A central issue in this appeal is whether Morrison has shown irreparable 

harm resulting from Anthony and Hilburn’s actions. The trial court found that 

Morrison had an adequate remedy at law, see App. 1, and based that finding—at 

least implicitly—on Anthony and Hilburn’s testimony that “they are currently 

unemployed” and would not begin working for National Wholesale Supply, Inc. 

(“National”) until “their legal responsibilities [were] determined,” App. 2 at 2.1 

That testimony, however, was misleading, as shown (1) by the Van Kelley 

Affidavit, see App. 8, and, more importantly, (2) by statements at a July 10, 2015 

hearing where Anthony and Hilburn’s counsel admitted that they were working for 

National, a violation of the Nonqualified Stock Option Award Agreements 

(“Agreements”). See Supp. RR 29:9:12 (“From what I understand, I think 

[Anthony and Hilburn] might be working in the warehouse at National now. I 

think we’re talking two weeks ago, they started working.”). 

 

1 Anthony and Hilburn’s testimony on this point was contradicted by other evidence in the 

record, which suggested that they were employed at National before the trial court entered a 

TRO. See Appellants’ Br. at 9-10 & n.6; see also 5RR, Exs. 1-2.
2

At the July 10, 2015 hearing, the trial court confirmed that Anthony and 

Hilburn’s prior testimony about their employment had been misleading, stating:

 The fact that Anthony and Hilburn now are working at National 

“certainly was inconsistent with the factual testimony [the trial court] 

thought that [it] heard.” Id. at 29:1-4.

 “[The record] will be fairly read to suggest that [Anthony and 

Hilburn] said that . . . we filed this suit to get our rights determined 

and liability determined before we ever went to work or would go to 

work for the new prospective employer.” Id. at 29:22-30:1.

 “[I]f [Anthony and Hilburn] stuck with what they testified about, 

they’d still have been sitting at home on July 10th, not working for 

this new employer; waiting for the litigation to work itself out.” Id. at 

30:9-12. 

While the trial court declined to address this new evidence at the July 10, 2015

hearing, it noted that such evidence “may cause [it] to give an expedited trial,” id.

at 31:9, and also “suggest[ed]” that Morrison’s counsel “point [this fact] out to the 

appellate brethren and see what they do,” id. at 31:7-9. 

Given that Anthony and Hilburn have admitted that they now are working 

for National, and that the trial court was misled by Anthony and Hilburn’s 
3

testimony at the temporary injunction hearing, this Court can and should take 

notice of the fact that Anthony and Hilburn currently are employed at National.

ARGUMENT

I. Morrison Properly Challenged All Aspects of the Trial Court’s Ruling.

Anthony and Hilburn incorrectly argue that Morrison “failed to properly 

challenge” the trial court’s ruling. Resp. Br. at 18. Specifically, Anthony and 

Hilburn claim that Morrison treated the trial court’s May 13, 2015 letter (to which 

the Order Denying Morrison’s Temporary Injunction Application was attached) as 

findings of fact/conclusions of law and, in so doing, failed to challenge the trial 

court’s implied findings on each element of its temporary injunction claim. Id. at 

18-24. This argument is wrong in every respect because: (1) Morrison did not treat 

the trial court’s May 13, 2015 letter as findings of fact/conclusions of law in its 

brief; and (2) Morrison challenged each and every implied finding that the trial 

court possibly could have made in denying its Temporary Injunction Application.

A. Morrison Challenged Every Implied Finding Made by the Trial 

Court, and Thus Presented All Arguments for Appellate Review.

First, there is no support for Anthony and Hilburn’s argument that Morrison 

treated the trial court’s May 13, 2015 letter as findings of fact/conclusions of law. 

Morrison recognized, in its brief, the possibility that the trial court’s letter might be 

of limited significance, noting that “[w]hile the trial court’s [letter] is not a formal 

order . . . and is not necessarily entitled to the same weight [as] a formal order, 
4

Morrison cites [it] because it provides further explanation . . . .” Appellants’ Br. at 

11 n.7. Anthony and Hilburn ignore that statement. Moreover, if Morrison had 

treated the trial court’s May 13, 2015 letter as findings of fact/conclusions of law, 

then it would not have made many of the arguments in its brief because—to the 

extent that letter could function as findings of fact/conclusions of law—the trial 

court found that Morrison had proven several elements of its claim. For example, 

the trial court stated in its letter: “The Court finds Paragraphs 7 [confidentiality 

provision], 8 [non-competition provision], and 9 [non-solicitation provision] to be 

ancillary to an otherwise enforceable agreement . . . .” App. 2 at 1. Had Morrison 

treated this letter as the trial court’s findings of fact/conclusions of law, it would 

not have spent an entire section of its brief arguing that the evidence showed that 

the non-competition and non-solicitation provisions of the Agreements were 

ancillary to or part of an otherwise enforceable agreement. See Appellants’ Br. at 

17-20. Similarly, the trial court noted in its letter that the Agreements “do[] not 

appear to be illusory,” App. 2 at 1, yet Morrison rebutted any purported evidence 

to the contrary, see Appellants’ Br. at 27-29 (arguing that the Agreements were not 

illusory because the evidence showed that Anthony and Hilburn received valuable 

stock options and confidential information after signing the Agreements). 

Second, Morrison challenged each and every implied finding made by the 

trial court, and a quick review of Morrison’s brief confirms that fact. See 
5

Appellants’ Br. at xii (addressing each element of a temporary injunction claim in 

the “Issues Presented”); id. at 16-26 (arguing that the evidence shows that 

Morrison has a probable right to the relief requested because the Agreements are

enforceable, the restrictions sought by Morrison are reasonable, and Anthony and 

Hilburn breached the Agreements); id. at 26-33 (addressing each of Anthony and 

Hilburn’s affirmative defenses); id. at 33-38 (arguing that the evidence shows 

imminent and irreparable injury to Morrison, that Morrison’s sought-after relief is 

necessary, and that the trial court abused its discretion in concluding otherwise). 

Once this Court reviews the arguments made in Morrison’s brief, it will see that 

Anthony and Hilburn’s argument on this point is meritless.

B. Regardless, the May 13, 2015 Letter Can Be Construed as 

Findings of Fact/Conclusions of Law Under This Court’s 

Precedents.

While Morrison did not, out of an abundance of caution, rely on (or treat) 

the trial court’s May 13, 2015 letter as findings of fact/conclusions of law, under 

this Court’s precedents, that letter can be given such weight. Anthony and Hilburn 

recognize this fact and cite this Court’s decision in In re Estate of Miller, 446 

S.W.3d 445 (Tex. App.—Tyler 2014, no pet.), for the proposition that “[i]t is 

possible for findings and conclusions to be contained in a trial court’s letter to 

counsel if the letter is filed of record.” Id. at 450.
6

A comparison of the letters in In re Estate of Miller and this case confirms

that the trial court’s May 13, 2015 letter can be construed as findings of fact and 

conclusions of law because:

 Both letters were filed as part of the Clerk’s Record;

 Both letters were filed contemporaneously with the relevant 

order/judgment being appealed;

 Both letters provided an “explanation of the basis for [the trial court’s] 

ruling,” and thus “satisfie[d] the purpose of Rule 296”;2

 Both letters indicated that the trial court here and in In re Estate of 

Miller meant for the letters to be construed as findings of 

fact/conclusions of law because they discussed the evidence presented 

and used phrases such as the “Court finds”; and

 The trial court here and in In re Estate of Miller only filed letters to 

explain the rulings; they did not file separate findings of 

fact/conclusions of law.

Compare In re Estate of Miller, 446 S.W.3d at 450-52, with App. 2. 

Other courts of appeals have reached the same conclusion as this Court did

in In re Estate of Miller regarding similar trial court letters, and have treated such

 

2

The Texas Rules of Civil Procedure do not require that findings of fact/conclusions of law be in 

any particular form so long as they are in writing and are “filed with the Clerk and shall be part 

of the record.” See Villa Nova Resort, Inc. v. State, 711 S.W.2d 120, 124 (Tex. App.—Corpus 

Christi 1986, no writ).
7

letters as findings of fact/conclusions of law. See, e.g., Duddlesten v. Klemm, No. 

06-08-00106-CV, 2009 WL 635153, at *2 (Tex. App.—Texarkana Mar. 13, 2009, 

no pet.) (“Here, the trial court specifically stated the letter set out the findings of 

fact and conclusions of law, the letter was filed with the clerk, and the court did not 

enter other findings or conclusions. While we do not hold that every letter written 

by a trial court to the attorneys will qualify, the facts of this case authorize us to 

consider the trial court’s letter as its findings of fact and conclusions of law.”); 

Kendrick v. Garcia, 171 S.W.3d 698, 702 (Tex. App.—Eastland 2005, pet. denied)

(construing a prejudgment letter as findings of fact/conclusions of law where the 

trial court “did not enter formal findings of fact and conclusions of law which 

appellants are attempting to alter with the trial court’s letter ruling”).3

To the extent this Court construes the trial court’s May 13, 2015 letter as 

findings of fact/conclusions of law, this Court need only consider (1) whether the 

trial court abused its discretion in determining that Morrison failed to show an 

imminent and irreparable injury, and (2) whether the trial court should have 

reformed the Agreements at the temporary injunction stage. See App. 1 (finding an 

adequate remedy at law); App. 2 at 2 (discussing Anthony and Hilburn’s testimony 

related to imminent/irreparable harm). And considering that the trial court’s 

 

3 Moore v. Jet Stream Investments, Ltd., 315 S.W.3d 195 (Tex. App.—Texarkana 2010, pet. 

denied), is inapposite because, unlike that case, the trial court’s letter here did not conflict with 

its order. See id. at 209 (“This is especially true in light of the fact that the subsequent judgment

conflicts with the trial court’s letter on the issue of attorney’s fees.”).
8

finding on irreparable/imminent injury was based on Anthony and Hilburn’s 

misleading and now-contradicted testimony, see supra at 1-3, that issue should be 

resolved in Morrison’s favor. The reformation issue likewise should be resolved in 

Morrison’s favor because the statute itself and several cases suggest that 

reformation is appropriate at the temporary injunction stage. See infra at 22-26.

II. The Evidence Demonstrates That Morrison Proved Each Element of Its 

Claim for a Temporary Injunction.

A. Morrison Proved the Existence of a Valid Contract.

1. Anthony and Hilburn Received Consideration in Exchange for 

Entering into the Agreements.

The evidence demonstrates that Anthony and Hilburn received two types of 

consideration in exchange for signing the Agreements, each of which is

independently sufficient to establish an enforceable and valid contract: (1) 

confidential information after signing the Agreements; and (2) valuable stock 

options. See Appellants’ Br. at 17-20. Anthony and Hilburn do not dispute that 

these types of consideration can make a contract enforceable. See Resp. Br. at 27-

28 (admitting that Morrison only needed to show that Anthony and Hilburn 

received confidential information after signing the Agreements); id. at 31 (“A 

stock option can support an agreement not to compete.” (citing Marsh USA Inc. v. 

Cook, 354 S.W.3d 764, 774-76 (Tex. 2011))). Rather, Anthony and Hilburn argue 

that Morrison did not provide them with confidential information after they 
9

executed the Agreements and that any stock option award was illusory. Both 

arguments fail.

a. Anthony and Hilburn Received Confidential Information 

After Signing the Agreements.

The temporary injunction record was replete with specific examples of 

confidential information that Anthony and Hilburn received after signing the 

Agreements. Morrison introduced six such exhibits, several of which are examples 

of confidential documents that Anthony and Hilburn received on a weekly—or 

even daily—basis. The trial court temporarily sealed those exhibits when it issued 

its temporary injunction order, and now has permanently sealed them. See App. 3; 

Supp. RR 16:14-19. Those exhibits are:

 One example of an email setting forth the price Morrison paid for several 

key products where the email was password protected. See 4RR 10:3-

14:23; see also 5RR, Ex. 22.

 A detailed report showing Morrison’s pricing strategy, including 

objectives for each region, ways to improve margins, and performance of 

each region; this document was labeled confidential and proprietary. See 

3RR 87:24-92:7; see also 5RR, Ex. 12.

 One example of a “weekly dashboard” for each branch under Anthony 

and Hilburn’s supervision, which contains all of the branch’s financial 

transactions for the week as well as an analysis of the transactions, such 

as the “customer trends” section, which evaluates whether the branch is 

making money from a customer, whether the amount of money earned 

from that customer is increasing or decreasing, how the goods are being 

priced, and similar information that is key to understanding whether the 

branch is profitable. See 3RR 77:1-81:24; see also 5RR, Ex. 9.
10

 One example of “Customer Evaluation” report, which sets forth detailed 

information regarding a particular customer including the customer’s 

purchases, what the company’s margin is on those purchases, and 

whether there are opportunities for additional sales or increased margins

with this customer. See 3RR 82:2-85:21; see also 5RR, Ex. 10. 

 One example of a “Daily Audit Summary,” which contains a list of every 

transaction in a particular branch and the details of those transactions 

including price, volume, and customer name. See 3RR 85:24-87:20; see 

also 5RR, Ex. 11.

 Information regarding pricing from Western Pottery, which is below 

market. See 4RR 15:2-16:17; see also 5RR, Ex. 23.

Ignoring that the trial court ordered these confidential documents to be 

sealed, Anthony and Hilburn assert that these documents are not confidential 

because: (1) Morrison is in a buying group, and pricing information is known to 

and is the same for everyone in the buying group; (2) some of this information is

“stale” because certain pricing information “would change daily”; and (3) other 

Morrison employees—who did not sign Agreements with non-competition or 

confidentiality covenants—also were able to view some of this information. See 

Resp. Br. at 26-33. These responses do not call into question the confidential 

nature of these documents or the fact that Anthony and Hilburn received them after 

signing the Agreements, thereby making the Agreements enforceable under Texas 

law. See Alex Sheshunoff Mgmt. Servs., LP. v. Johnson, 209 S.W.3d 644, 649 

(Tex. 2006) (finding an employer’s non-competition agreement was enforceable 
11

because the employer had provided confidential information to the employee as 

promised in the employment agreement). 

First, even though Morrison was in a buying group, the evidence at the 

temporary injunction hearing showed that Morrison often negotiated prices 

individually, which led to certain pricing information that was not known to others 

in the buying group. See 4RR 9:6-23 (“Q. Does Morrison always and only pay the 

price that’s been negotiated by the buying group? A. No, ma’am. Q. And do you 

share those deals, the terms of those deals with other companies in the industry? 

A. No, ma’am. Q. Do you consider the terms of those deals to be confidential? A. 

Yes, ma’am. Q. And why is that? A. Because it is an advantage for us as a 

company to have those programs.”).

Second, while some pricing information might change regularly, the 

evidence at the temporary injunction hearing demonstrated that the confidential 

information received by Anthony and Hilburn (and sealed by the trial court) was 

not stale and continued to be used by Morrison. See 3RR 96:24-97:4 (stating that 

certain confidential pricing information received by the Former Managers is used 

to analyze Morrison’s overall margins and that it would be included in a data set 

for a 12-month “look back”); 4RR 102:7-103:1 (noting that pricing strategy, which 

Morrison continues to use, is not “stale” confidential information). 
12

Third, Anthony and Hilburn’s argument that other Morrison employees also 

received some of this confidential information does not change the nature of that

information. Anthony and Hilburn cite no case where this factor was even 

considered to be relevant in determining whether a non-competition agreement was 

enforceable, and Morrison is not aware of any such case. Because this information 

was kept within Morrison and was protected (by passwords or other security 

measures, see 4RR 10:3-14:23), it was (and remains) confidential.

b. Anthony and Hilburn Received Valuable Stock Options.

There is no dispute that Anthony and Hilburn received stock options in 

exchange for signing the Agreements and that those options had value. See 3RR 

109:10-14 (“The individuals that participate [in the stock option award program] 

have the opportunity, again, to have a small degree of ownership, as far as in the 

business, as far as an option holder with the ability” to obtain proceeds.). 

Nevertheless, Anthony and Hilburn complain that these options were not valid 

consideration because: (1) the Agreements only provided stock “options,” not 

stock itself; (2) Anthony and Hilburn were never provided with a copy of the 

Patriot “Stock Award Agreement”; and (3) Anthony and Hilburn, as at-will 

employees, could lose their stock options if they were terminated for cause. See 

Resp. Br. at 31-32. Again, each of these arguments fails.
13

First, the Texas Supreme Court has spoken clearly on the issue about stock 

“options” versus stock ownership. In Marsh, the Texas Supreme Court held that it 

was the grant or award of stock options—not the exercise of those options—that 

made a non-competition agreement enforceable. See 354 S.W.3d at 777 (“By 

awarding Cook stock options, Marsh linked the interests of a key employee with 

the company’s long-term business interests.”) (emphasis added). Notably, 

Anthony and Hilburn fail to address Marsh.

Second, Anthony and Hilburn fail to argue how allegedly not receiving the 

Patriot “Stock Award Agreement,” deprived their stock options of value. And 

while Anthony and Hilburn claim that the “Stock Award Agreement” revealed that 

Patriot had the unilateral and unfettered right to destroy their stock options at any 

time, Resp. Br. at 32, that argument simply is not true. Under the “Stock Award 

Agreement,” Patriot could not take any action that “adversely affect[ed] in any 

material respect the rights granted to any Participant under any outstanding 

Awards.” 5RR, Ex. 13 at 9. Because Patriot could only take prospective actions 

with regard to the stock option awards, the stock options Anthony and Hilburn 

received had value. See, e.g., In re Halliburton Co., 80 S.W.3d 566, 569-70 (Tex. 

2002) (holding that a contract is enforceable even when one party has the right to 

amend or terminate it unilaterally, so long as the right is restricted in some 

manner); In re Odyssey Healthcare, Inc., 310 S.W.3d 419, 422 (Tex. 2010) (same).
14

Third, Anthony and Hilburn’s argument that the stock options were illusory 

because they might forfeit options if they were terminated for cause fails because 

this possible forfeiture was “restricted in some manner,” and thus the consideration

was not illusory. E.g., In re Halliburton Co., 80 S.W.3d at 569-70.

In sum, the evidence presented at the temporary injunction hearing confirms 

that Anthony and Hilburn received valuable consideration in exchange for signing 

the Agreements,4thereby making them enforceable. To the extent the trial court 

found otherwise, it abused its discretion.

2. The Restrictions Sought in the Temporary Injunction Are 

Reasonable.

Anthony and Hilburn do not argue that the geographic restrictions—or any 

other type of restrictions—sought in Morrison’s Application for a Temporary 

Injunction are overbroad. See Resp. Br. at 33-35. Rather, they only assert that a 

nationwide restriction is overbroad because “Anthony and Hilburn’s work for 

Morrison only involved the branches in East Texas and Shreveport. Resp. Br. at 

34. But, as Morrison has confirmed, it is only seeking to enforce the noncompetition provision in the limited geographic area where Anthony and Hilburn 

worked. Appellants’ Br. at 21 (“[W]e are seeking a very specific injunction . . . . 

It would be limited to the specific region in which Mr. Anthony and Mr. Hilburn 

 

4 Because Morrison gave Anthony and Hilburn valuable consideration in exchange for signing 

the Agreements, Anthony and Hilburn’s argument that “the evidence is conflicting as to whether 

Morrison [performed under the Agreements]” fails. See Resp. Br. at 35.
15

work.” (quoting 4RR 73:15-24)). Because this type of limited geographic 

restriction repeatedly has been upheld by this Court and other Texas courts of 

appeals,5 Anthony and Hilburn’s argument is both irrelevant and meritless. 

B. The Evidence Demonstrates That Anthony and Hilburn Breached 

the Agreements.

1. Anthony and Hilburn Breached Their Non-Competition 

Obligations.

Anthony and Hilburn’s argument that they did not breach the noncompetition provision in the Agreements is based on the false premises that they 

are not currently working for National and that no evidence at the temporary 

injunction hearing showed that they worked for National before the TRO was 

entered.

6

 See supra at 1-3. While Anthony and Hilburn continue to cite the 

temporary injunction hearing transcript that misled the trial court, see id., there 

cannot now be any dispute that Anthony and Hilburn are working for National in 

violation of the Agreements. Anthony and Hilburn’s counsel admitted that fact to 

the trial court, and this Court should not ignore it. See Supp. RR 29:9:12 (“From 

what I understand, I think [Anthony and Hilburn] might be working in the 

 

5

See, e.g., Stone v. Griffin Commc’ns & Sec. Sys., Inc., 53 S.W.3d 687, 694 (Tex. App.—Tyler 

2001, no pet.) (enforcing covenant in specific geographic area where former employee had 

worked); Butler v. Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 794 (Tex. App.—Houston [1st 

Dist.] 2001, no pet.) (similar); Curtis v. Ziff Energy Grp., Ltd., 12 S.W.3d 114, 119 (Tex. App.—

Houston [14th Dist.] 1999, no pet.) (similar). 

6

Further, as noted in Morrison’s brief, any testimony that Anthony and Hilburn were not 

working for National at the time of the temporary injunction hearing is irrelevant because they 

were subject to TRO at that time. See Appellants’ Br. at 9-10.
16

warehouse at National now. I think we’re talking two weeks ago, they started 

working.”). Further, other evidence at the temporary injunction hearing supported 

Morrison’s argument that Anthony and Hilburn worked at National before the 

TRO was issued. See 5RR, Exs. 1-2.

2. Anthony and Hilburn Breached Their Non-Solicitation 

Obligations.

Anthony and Hilburn’s only response to the overwhelming evidence,

outlined in Morrison’s brief, that they violated the non-solicitation provision in the 

Agreements is to argue that “[w]itnesses testified that Hilburn and Anthony did not 

recruit any employees to leave Morrison and go to work for National.” Resp. Br. 

at 36. Beyond the fact that “solicitation” covers a broader array of activities than 

simply “recruiting,” see, e.g., 5RR, Ex. 3 at 5 (defining “solicitation”), the 

testimony that Anthony and Hilburn cite for this proposition consists of Hilburn’s 

self-serving statements, as well as a statement from Ronnie Rice, in which he said 

only that Anthony and Hilburn did not recruit him—as opposed to any of the other 

Morrison employees—to work for National. See 3RR 23:2-5, 53:4-13, 63:1-3; 

4RR 43:3-8. 

This testimony does not change the fact that Anthony and Hilburn admitted 

to breaching the non-solicitation provision in the Agreements by speaking with 

numerous Morrison employees about going to work for National, see 2RR 28:1-7; 

3RR 17:21-18:6, and by meeting with Charlie Reynolds (the President of National) 
17

and Morrison employees months before the April 13, 2015 resignations, see 2RR 

26:5-14, 28:10-23; 3RR 21:8-17. This testimony also does not change the fact that 

Hilburn admitted to helping his brother resign from Morrison by requesting that 

Anthony send him a resignation form for his brother to use, see 3RR 23:20-25:10, 

and that Hilburn submitted at least 28 signed resignation forms on behalf of other 

employees, see 5RR, Ex. 6. 

Given that Anthony and Hilburn indisputably now work at National in 

competition with Morrison and the overwhelming evidence showing that Anthony 

and Hilburn breached the non-solicitation provision in their Agreements, the trial 

court abused its discretion to the extent it concluded that the evidence failed to 

show that Anthony and Hilburn breached the Agreements.

C. None of Anthony and Hilburn’s Defenses Provides a Basis for 

Denying Morrison’s Application for a Temporary Injunction.

As outlined in Morrison’s brief and above, none of Anthony and Hilburn’s 

defenses justifies denying Morrison’s Temporary Injunction Application. There is 

no indication that the trial court denied the temporary injunction on any of these 

bases but, to the extent the trial court did so, it abused its discretion.

Alleged Defense Why Alleged Defense Fails

“Hornsby represented ‘he 

was giving us stock in the 

company’ when in fact the 

agreement is only an illusory 

stock option.” Resp. Br. at 

37 (internal citation omitted).

In Marsh, the Texas Supreme Court held that it was 

the grant or award of stock options—not the 

exercise of those options—that made the noncompetition agreement enforceable. See 354 

S.W.3d at 777; see also Appellants’ Br. at 27-29.
18

Alleged Defense Why Alleged Defense Fails

“Hornsby said the noncompete clause ‘was not 

worth the piece of paper 

it was written on,’ 

contrary to the position 

Morrison is taking . . . .” 

Resp. Br. at 37 (internal 

citation omitted).

Anthony and Hilburn could not have justifiably relied 

on any such assertion because it was contradicted by the 

Agreements’ plain language. See DRC Parts & 

Accessories, L.L.C. v. VM Motori, S.P.A., 112 S.W.3d 

854, 858 (Tex. App.—Houston [14th Dist.] 2003, pet. 

denied); see also Appellants’ Br. at 30-31.

Hornsby never told the Former Managers that the 

Agreements were invalid, unenforceable, or “not worth 

the paper they were written on.” 3RR 115:14-116:1.

“Hornsby said the noncompete ‘was only good

for 12 months from the 

day we signed it,’ 

contrary to the position 

Morrison is taking . . . .” 

Resp. Br. at 37 (internal 

citation omitted).

Anthony and Hilburn could not have justifiably relied 

on any such assertion because it was contradicted by the 

Agreements’ plain language. See DRC Parts & 

Accessories, L.L.C., 112 S.W.3d at 858; see also 

Appellants’ Br. at 30-31.

Hornsby told Anthony and Hilburn that the noncompetition provisions ran for one year from the date of 

their departure from Morrison—not from the date it was 

signed. See 3RR 112:17-113:8.

“Morrison executives 

never gave [Anthony 

and Hilburn] the actual 

stock plan . . . .” Resp. 

Br. at 37.

Anthony and Hilburn fail to assert how this alleged 

oversight deprived their stock options of any value. 

Further, under the “Stock Award Agreement,” Patriot 

could only take prospective actions with regard to stock 

option awards; thus the stock options Anthony and 

Hilburn received had value. See In re Halliburton Co., 

80 S.W.3d at 569-70; see also Appellants’ Br. at 27-28.

“Anthony and Hilburn 

were pressured into 

signing the 

[A]greements.” Resp. 

Br. at 37.

There was no evidence of duress presented at the 

temporary injunction hearing, see 4RR 61:23-25 (noting 

lack of evidence), and, in any event, Anthony and 

Hilburn cannot meet the standard required to show 

duress, see Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. 

App.—Houston [14th Dist.] 2004, pet. denied).

Any argument that Anthony and Hilburn were pressured 

or rushed into signing the Agreements is contradicted by 

the record. See Appellants’ Br. at 31-32.
19

D. The Evidence Demonstrates That Morrison Has a Probable, 

Imminent, and Irreparable Injury for Which There Is No 

Adequate Remedy at Law.

Anthony and Hilburn currently are working for National in violation of the 

non-competition provision in the Agreements they signed. See supra at 1-3. This 

continued breach of the Agreements “creates a rebuttable presumption that 

[Morrison] is suffering an irreparable injury.” Tranter, Inc. v. Liss, No. 02-13-

00167-CV, 2014 WL 1257278, at *7 (Tex. App.—Fort Worth Mar. 27, 2014, no 

pet.). Anthony and Hilburn put forward no argument or evidence to rebut that 

presumption, choosing instead to argue only that “Anthony and Hilburn were not 

working for National” at the time of the temporary injunction hearing. See Resp. 

Br. at 39. This argument is irrelevant, see supra at 15 n.6, and this Court should 

not condone Anthony and Hilburn’s attempt to hide behind their self-serving and 

misleading statements. 

Anthony and Hilburn also have no response for Morrison’s argument—

based on uncontradicted testimony—that Anthony and Hilburn’s actions resulted 

in (1) Morrison losing more than 50% of its workforce in East Texas; (2)

Morrison’s name, reputation, and other elements of its goodwill being harmed; (3)

Morrison’s ability to operate being hampered; and (4) harm to Morrison’s

relationships with its customers and vendors. See, e.g., 3RR 126:15-127:21 

(Hornsby testifying that Anthony and Hilburn’s departures harmed Morrison 
20

because, inter alia, they helped develop strategies and customer relationships and 

because their departures harmed Morrison’s reputation among the customer base 

and suppliers). These types of damages are not easily quantifiable, and Texas 

courts of appeals have held that such damages constitute irreparable injuries. See, 

e.g., Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 228 (Tex. 

App.—Fort Worth 2009, pet. denied) (“Disruption to a business can be irreparable 

harm. Moreover, assigning a dollar amount to such intangibles as a company’s 

loss of clientele, goodwill, marketing techniques, and office stability, among 

others, is not easy.” (internal citations omitted)); Martin v. Linen Sys. for Hosps., 

Inc., 671 S.W.2d 706, 710 (Tex. App.—Houston [1st Dist.] 1984, no writ).

Finally, Anthony and Hilburn argue that “fear and apprehension that [they] 

might in the future violate the terms of the non-compete” is insufficient to obtain a 

temporary injunction. See Resp. Br. at 39. Anthony and Hilburn are incorrect and 

the case they rely on—Frey v. DeCordova Bend Estate Owners’ Ass’n, 647 

S.W.2d 246, 248 (Tex. 1983)—is distinguishable because that case involved a 

situation where no injury had occurred. Here, Morrison already has been injured 

because Anthony and Hilburn (1) violated the non-competition provision in the 

Agreements by working for National before the TRO was issued and by resuming 

their employment there, see supra at 1-3, 15; 5RR, Exs. 1-2, and (2) violated the 

non-solicitation provision in the Agreements, causing Morrison to lose half of its 
21

East Texas workforce, see supra at 16-17. Moreover, Anthony and Hilburn (who 

received confidential information from Morrison) currently are working for 

National in the same geographic region, thereby causing the constant and imminent

threat to Morrison that its confidential information will be disclosed. See 3RR 

127:5-12 (Hornsby testifying that the Former Managers “have an enormous 

amount of information related to [Morrison’s] strategy” and that the potential harm 

caused by disclosure could not “be easily or clearly remedied with payment of 

money”). This type of threat is sufficient to demonstrate imminent harm. See, 

e.g., Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552 (Tex. App.—Dallas 

1993, no writ) (“Rugen is in possession of IBS’s confidential information and is in 

a position to use it. Under these circumstances, it is probable that Rugen will use 

the information for her benefit and to the detriment of IBS. At times, an injunction 

is the only effective relief an employer has when a former employee possesses 

confidential information.”).

The evidence shows that the trial court’s finding that Morrison had an 

adequate remedy of law was based on the misleading testimony of Anthony and 

Hilburn that they were not working for National and would not work for National 

until this litigation was resolved. There now is no dispute that Anthony and 

Hilburn are working for National, that their solicitation of other Morrison 

employees caused Morrison injury, and that Morrison faces the constant threat that
22

its confidential information will be used to its detriment. To the extent the trial 

court concluded that Morrison had not presented evidence of irreparable and 

imminent injury, it abused its discretion.7

III. This Court Should Order the Trial Court to Reform the Agreements on 

Remand.

A. This Court Has Jurisdiction to Consider This Issue and Order 

Reformation.

Anthony and Hilburn—again, hoping to avoid the merits of Morrison’s 

arguments—attempt to convince this Court that it lacks jurisdiction to consider 

whether reformation is appropriate at the temporary injunction stage. Anthony and 

Hilburn’s arguments are based on a handful of cases

8

that are at odds with more 

persuasive decisions from both state and federal courts in Texas. These more 

persuasive cases stand for the proposition that reformation can be ordered at the 

temporary injunction stage.

 

7 Nothing suggests that the trial court found that the equities favor Anthony and Hilburn and, to 

the extent it did, it abused its discretion. Given the evidence outlined in Morrison’s brief and 

reply brief, the equities favor Morrison and support the issuance of a temporary injunction here. 

Anthony and Hilburn’s arguments to the contrary are based on assertions that are contradicted by 

the record. For example, Anthony and Hilburn argue that there never received any confidential 

information, see Resp. Br. at 41, but that is not true, see supra at 20-21. Similarly, Anthony and 

Hilburn focus on the geographic scope of the Agreements as written, see Resp. Br. at 42, but 

ignore that Morrison is only seeking to enforce the Agreements in the limited geographic area 

where Anthony and Hilburn worked, see supra at 14-15. In sum, Anthony and Hilburn’s 

“equitable” arguments should be rejected. To the extent the trial court denied the temporary 

injunction on this basis, it abused its discretion.

8

See, e.g., McNeilus Companies, Inc. v. Sams, 971 S.W.2d 507 (Tex. App.—Dallas 1997, no 

pet.); Sadler Clinic Ass’n, P.A. v. Hart, No. 09-09-00452-CV, 2010 WL 114241, at *3 (Tex. 

App.—Beaumont Jan. 14, 2010, no pet.).
23

As outlined in Morrison’s brief, several Texas courts have held that 

“reformation is not only a final remedy” and should—in certain circumstances—be 

ordered at an interlocutory stage.9 Liss, 2014 WL 1257278, at *10; see also, e.g., 

Poole v. U.S. Money Reserve, Inc., No. 09-08-137-CV, 2008 WL 4735602, at *9 

(Tex. App.—Beaumont 2008, no pet.) (holding that a temporary injunction was 

overbroad and remanding to the trial court to determine reasonable reformation); 

Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 294 (Tex. App.—Beaumont 

2004, no pet.) (suggesting that reformation at the temporary injunction stage was 

appropriate, but remanding for additional fact-finding). And federal courts in 

Texas have followed suit in reliance on these state court cases. See TransPerfect 

Translations, Inc. v. Leslie, 594 F. Supp. 2d 742, 756 (S.D. Tex. 2009) (reforming 

agreement at temporary injunction stage and noting that (1) under section 15.51, 

“[t]he court need not wait for the parties to request [reformation],” and (2) “[s]ome 

Texas appeals courts have suggested . . . that reformation is appropriate at the 

temporary injunction stage); CDX Holdings, Inc. v. Heddon, No. 12-CV-126, 2012 

 

9 Anthony and Hilburn assert that Morrison only cited two cases for this proposition in its brief. 

Resp. Br. at 47-48. In fact, Morrison cited half a dozen cases, which stand for the proposition 

that reformation is not only a final remedy. See Appellants’ Br. at 42-43 & n.15. And, in 

addition to those cases, some Texas courts have reformed agreements at the temporary injunction 

stage without commenting on the propriety of such reformation. See, e.g., Cobb v. Caye Publ’g 

Grp., Inc., 322 S.W.3d 780, 782 (Tex. App.—Fort Worth 2010, no pet.); Webb v. Hartman 

Newspapers, Inc., 793 S.W.2d 302, 305 (Tex. App.—Houston [14th Dist.] 1990, no writ).
24

WL 11019355, at *11 (N.D. Tex. Mar. 2, 2012) (“Some Texas court[s] have 

suggested that reformation may be appropriate at the temporary injunction stage.”).

An approach which permits courts to reform overbroad non-competition 

agreements at the temporary injunction stage also is supported by the text of the 

statute, which provides: “If the covenant is found to be ancillary to or part of an 

otherwise enforceable agreement but contains [overbroad] limitations . . . the court 

shall reform the covenant to the extent necessary to cause the limitations . . . to be 

reasonable . . . .” TEX. BUS. & COMM. CODE § 15.51(c) (emphasis added). Here, 

because the trial court already has noted that the Agreements are enforceable but 

contain overbroad geographic restrictions, see App. 2 at 1, the statute requires the 

court to reform the Agreements. The statute includes no language suggesting that 

reformation should (or must) wait until trial or final judgment, and this Court

should not read any such requirements into the statute’s plain language. Put 

simply, since the trial court has found that the two conditions precedent exist

(enforceability and overbreadth), the statute requires reformation at this stage of 

the proceedings.

For these reasons, this Court has jurisdiction to consider whether the trial 

court abused its discretion by not reforming the Agreements at the temporary 

injunction stage.
25

B. Morrison Is Entitled to Reformation at this Stage of the 

Proceedings.

In addition to the statutory argument outlined above, see supra at 23, 

Morrison is entitled to reformation at this stage because—without that remedy—

Morrison will be unable to recover damages against Anthony and Hilburn for their 

ongoing breaches of the non-competition covenant in the Agreements between 

now and when the Agreements ultimately are reformed. That is especially true 

because where, as here, the overbroad geographic provision has been identified and 

is not disputed, there is no need for further discovery or litigation before 

reformation. See TransPerfect Translations, Inc., 594 F. Supp. 2d at 756 (stating, 

at the temporary injunction phase, that “the Court will . . . reform the contract as 

necessary based on the current evidence, noting that any reformation or permanent 

injunction to be entered may differ from this temporary reformation . . . .”). 

This Court should order the trial court to reform the Agreements at this stage 

of the proceedings so Morrison is not prevented from recovering certain damages

going forward.

10

 The trial court denied Morrison the relief of a temporary 

injunction and the possibility of recovering certain of its damages going forward 

 

10 Anthony and Hilburn take issue with the fact that the proposed temporary injunction covers 

two counties where they claim they had no responsibilities. See Resp. Br. at 49. On remand, the 

trial will have the opportunity to conduct fact-finding to ensure that the reformation is 

reasonable. See, e.g., Poole, 2008 WL 4735602, at *9 (holding that a temporary injunction was 

overly broad and remanding to the trial court to determine reasonable reformations); Wright, 137 

S.W.3d at 298-99 (suggesting that reformation at the temporary injunction stage was appropriate, 

but remanding for additional fact-finding). These types of fact-based disputes cannot serve as a 

basis for refusing to reform the Agreements at this stage of the proceedings.
26

because the Agreements were not reformed. Such an outcome does not accomplish 

substantial justice and constitutes error and an abuse of discretion.

CONCLUSION AND PRAYER

For these reasons, this Court should reverse the trial court’s Order Denying 

Temporary Injunction and remand the action with instructions that the trial court 

(1) grant Morrison’s requested temporary injunction, and (2) reform the 

Agreements at this stage of the proceedings. Morrison also prays for all such

further relief to which it is justly entitled.

Michael E. Starr

State Bar No. 19078400

COGHLAN CROWSON LLP

1127 Judson Road

Suite 211

Longview, Texas 75606

903.758.5543

mstarr@ccfww.com

 Respectfully submitted,

/s/ Vanessa Griffith

Vanessa Griffith

State Bar No. 00790469

Thomas S. Leatherbury

State Bar No. 12095275

Stephen S. Gilstrap

State Bar No. 24078563

VINSON & ELKINS LLP

2001 Ross Avenue

Suite 3700

Dallas, Texas 75201-2975

214.220.7713

214.999.7713 (facsimile)

vgriffith@velaw.com

tleatherbury@velaw.com

sgilstrap@velaw.com

Attorneys for Appellants Morrison Supply Company, LLC 

and Patriot Supply Holdings, Inc.
27

CERTIFICATE OF COMPLIANCE

The undersigned hereby certifies that this Appellants’ Reply Brief complies 

with the applicable word count limitations in the Texas Rules of Appellate 

Procedure. This Reply Brief contains 6,525 words, excluding the parts exempted 

by Tex. R. App. P. 9.4(i)(1). In making this certification, the undersigned has 

relied on the word-count function in Microsoft Word, which was used to prepare 

this Reply Brief.

/s/ Vanessa Griffith

Vanessa Griffith

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellants’ 

Reply Brief has been served upon the following counsel of record via electronic 

filing on August 13, 2015:

Keith Dollahite

State Bar No. 05958550

M. Keith Dollahite, P.C.

5457 Donnybrook Avenue

Tyler, Texas 75703

903.581.2110

keith@mkdlaw.us

Trey Yarbrough

State Bar No. 22133500

Dallas W. Tharpe

State Bar No. 24052036

YARBROUGH WILCOX, PLLC

100 East Ferguson, Suite 1015

Tyler, Texas 75702

903.595.3111

trey@yw-lawfirm.com

dallas@yw-lawfirm.com

/s/ Vanessa Griffith

Vanessa Griffith

US 3680840