In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-19-00405-CV 

________________________

ROBERT L. MALCOM, APPELLANT 

 

V. 

 

COBRA ACQUISITIONS, LLC, APPELLEE 

 

 

On Appeal from the 242nd District Court 

Hale County, Texas 

Trial Court No. B42941-1909; Honorable Kregg Hukill, Presiding 

 

April 30, 2020 

 

MEMORANDUM OPINION 

 

Before PIRTLE, PARKER, and DOSS, JJ. 

 

 

Appellant, Robert L. Malcom, sold his business to Appellee, Cobra Acquisitions, 

LLC, and the parties entered into two agreements containing restrictive covenants. Cobra 

accused Malcom of violating the restrictive covenants and filed suit for breach of contract. 

In the interim, the trial court granted a temporary injunction against Malcom for violating 
2

certain non-competition provisions. By six issues, Malcom challenges the temporary 

injunction. The Table of Contents of Malcom’s brief lists six issues as follows:

1. Whether the trial court abused its discretion in granting an application for 

temporary injunction when there was no showing of probable injury.

2. Whether the trial court abused its discretion in granting an application for a 

temporary injunction when there was no showing of a lack of an adequate 

remedy at law.

3. Whether the trial court abused its discretion in granting an application for 

temporary injunction when there was no showing of a likelihood of success 

on the merits.

4. Whether the trial court abused its discretion in admitting the affidavit of Cory 

Mahan, over the objection of [Malcom].

5. Whether the trial court abused its discretion by failing to reform 

unreasonable terms of the covenant not to compete pursuant to Sec. 15.51

of the Texas Business and Commerce Code.

6. Whether dissolution of the temporary injunction is necessary as injunctive 

relief is governed by principles of equity, which require a balancing of the 

equities.

The issues presented in the body of Malcom’s brief, which do not comport with the issues 

presented above, provide as follows:1

I. STANDARDS OF REVIEW

II. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE 

TEMPORARY INJUNCTION ABSENT SUFFICIENT EVIDENCE OF A 

PROBABLE RIGHT OF RECOVERY.

III. THE TRIAL COURT ABUSED ITS DISCRETION IN GRANTING THE 

TEMPORARY INJUNCTION ABSENT SUFFICIENT EVIDENCE OF 

IRREPARABLE INJURY AND LACK OF ADEQUATE LEGAL REMEDY.

1 There is no issue four in the body of the brief dedicated to Malcom’s complaint regarding 

admission of Cory Mahan’s affidavit. Instead, under issue II, Malcom commingles his argument that 

Mahan’s affidavit is conclusory and then presumes the trial court improperly considered it with his argument 

on a probable right of recovery.
3

V. THE NON-COMPETITION AGREEMENT AND THE RESULTING 

TEMPORARY INJUNCTION ARE BOTH UNENFORCEABLE 

BECAUSE THEY ARE VAGUE AND OVERLY BROAD AND NOT 

SPECIFIC IN THEIR TERMS.

VI. DISSOLUTION OF THE TEMPORARY INJUNCTION IS NECESSARY 

AS INJUNCTIVE RELIEF IS GOVERNED BY PRINCIPLES OF 

EQUITY, WHICH REQUIRE A BALANCING OF THE EQUITIES.

For the reasons that follow, we affirm the trial court’s Temporary Injunction.

BACKGROUND

Prior to the events at issue in this controversy, Malcom worked at Xcel Energy and 

was also a spiritual director at a halfway house for men. In 2012, he decided to leave his 

position at Xcel in order to establish Higher Power Electrical, LLC, a limited liability 

corporation, launched to train the residents of the halfway house in a trade that would

help them find gainful employment. The enterprise grew into a power distribution network

that was in the business of building, maintaining, and repairing transmission and 

distribution lines and substations for investor-owned utilities (IOU).2Its territories included

Texas, New Mexico, Oklahoma, and other southern states. Five years after its inception, 

the business employed ten to twelve crews. 

In 2017, Keith Ellison,3then President of Cobra approached Malcom about 

purchasing Higher Power for $4,000,000.

4

 After negotiations, Malcom agreed to sell his 

business to Cobra and, because of the good will that Malcom had developed, Cobra 

2

IOUs are publicly traded companies unlike cooperatives.

3 Ellison was eventually indicted for corruption for unfairly soliciting federal government contracts 

in Puerto Rico during the hurricane recovery effort.

4 During his testimony Malcom insisted the sales price was $5,000,000 but section 2.02(a) of the 

Purchase Agreement recites the purchase price as $4,000,000 minus the escrow amount of $750,000.
4

agreed to keep him as president for a three-year transition period. On April 21, 2017, 

Malcom and Cobra signed a Purchase Agreement containing the details of the sale. That 

same date, the parties entered into an Employment Agreement whereby Cobra employed 

Malcom as president for the transition period. Malcom’s annual base salary was set at 

$200,000 plus potential bonuses.

Pursuant to the terms of the Purchase Agreement, Malcom was prohibited from 

working for competitors in Texas, New Mexico, and Oklahoma. He was also prohibited 

from soliciting Higher Power’s customers and employees until two years following his 

termination from employment (known as the “restricted period” in the Employment 

Agreement).

The relevant provisions of the Purchase Agreement are as follows:

Section 5.02 Non-competition; Non-solicitation

(a) During the Restricted Period . . . Seller shall not . . . engage in or assist 

others in engaging in the Company Business or any division or business 

segment of any Company Business . . . or intentionally interfere in any 

material respect with the business relationships (whether formed prior 

to or after the date of this Agreement) between the Company or its 

Affiliates and customers or suppliers of the Company or its Affiliates or 

cause, induce or encourage any material actual or prospective client, 

customer, supplier or licensor of the Company or its Affiliates (including 

any existing or former client or customer of the Company or its Affiliates 

during the Restricted Period), or any other Person who has a material 

business relationship with the Company or its Affiliates, to terminate or 

modify any such actual or prospective relationship.

(b) During the Restricted Period, Seller shall not, and shall not permit any 

of his respective Affiliates to, directly hire or solicit any employee of the 

Company or encourage any such employee to leave such employment 

or hire any such employee who has left such employment.
5

(c) During the Restricted Period, Seller shall not, and shall not permit any 

of his respective Affiliates to, directly solicit or entice, or attempt to solicit 

or entice, any clients or customers of the Company or potential clients 

or customers of the Company for purposes of diverting their business or 

services from the Company.

(d) Seller acknowledges that a breach or threatened breach of this Section 

5.02 would give rise to irreparable harm to Buyer, for which monetary 

damages would not be an adequate remedy, and hereby agrees that in 

the event of a breach or a threatened breach by Seller of any such 

obligations, Buyer shall, in addition to any and all other rights and 

remedies that may be available to it in respect of such breach, be entitled 

to equitable relief, including a temporary restraining order, an injunction, 

specific performance and any other relief . . . .

(e) Seller acknowledges that the restrictions contained in this Section 5.02 

are reasonable and necessary to protect the legitimate interests of Buyer 

and constitute a material inducement to Buyer to enter into this 

Agreement and consummate the transactions contemplated by this 

Agreement. . . .

The Purchase Agreement also included several disclosure schedules. Disclosure 

Schedule 3.09(a) provided in part as follows:

Material Contracts

(i) Contracts with Material Customers and Material Suppliers

Material Customers

1. Xcel Energy

2. AEP

3. Lea County

The Employment Agreement contained language similar to the restrictions in the 

Purchase Agreement including the following provision:

6. Restrictive Covenants

(c) In light of Employee’s access to Confidential Information and position of 

trust and confidence with the Company, Employee hereby agrees that, 

during his employment and for a period of two (2) years following such 
6

termination (the “Restricted Period”), Employee shall not, and shall not 

permit any of his Affiliates to, directly or indirectly, in the Territory (defined 

below): engage in or assist others in engaging in the business of any 

Restricted Business (defined below) or any division or business segment of 

any Restricted Business, have an interest in any Restricted Business or any 

division or business segment of any Restricted Business in any capacity, 

including as a partner, shareholder, member, employee, principal, agent, 

trustee or consultant, or intentionally interfere in any material respect with 

the business relationships (whether formed prior to or after the date of this 

Agreement) between the Company or its Affiliates and customers or 

suppliers of the Company or its Affiliates or cause, induce or encourage any 

material actual or prospective client, customer, supplier or licensor of the 

Company or its Affiliates and any Person that becomes a client or customer 

of the Company or its Affiliates during the Restricted Period), or any other 

Person who has a material business relationship with the Company or its 

Affiliates, to terminate or modify any such relationship. For purposes of this 

Agreement:

(i) “Affiliates” of a Person means any other person that directly or indirectly, 

through one or more intermediaries, controls, is controlled by, or is under 

common control with, such Person. The term “control” (including the terms 

“controlled by” and “under common control with”) means the possession, 

directly or indirectly, of the power to direct or cause direction of the 

management and policies of a Person, whether through the ownership of 

voting securities, by contract or otherwise.

(ii) “Person” means an individual, corporation, partnership, joint venture, 

limited liability company, governmental authority, unincorporated 

organization, trust, association or other entity.

(iii) “Restricted Business” means the business of servicing investor-owned 

utilities, including providing services to the oil and gas industry.

(iv) “Territory” means the State of Texas, the State of New Mexico and the 

State of Oklahoma.

Malcom did not complete his three-year employment transition period after the sale 

of Higher Power. Instead, on October 13, 2018, he resigned as president and was

succeeded by Cory Mahan. After resigning, Malcom performed a “low voltage job” for his 

father-in-law and, in February 2019, still in the time frame of the restricted period of two 

years following his resignation, Malcom was recruited by Max Wolford to work for BHI 

Energy, a direct competitor of Higher Power that engaged in servicing IOUs. Malcom 
7

advised BHI that he remained under restrictive covenants until October 2020, and the 

decision was made to hire him as vice president of operations for territories east of the 

Mississippi River to avoid the territories of Texas, New Mexico, and Oklahoma. Wolford 

served as vice president of operations west of the Mississippi River which included Texas, 

New Mexico, and Oklahoma.

Higher Power interpreted Malcom’s duties at BHI as a breach of the restrictive 

covenants in the Purchase Agreement and Employment Agreement. Specifically, Higher 

Power alleged that Malcom hired at least six crews away from Higher Power and caused

two of Higher Power’s customers (Otero County Electric Cooperative, Inc. and Lea 

County Electric Cooperative, Inc.) to transfer their businesses to BHI.

On September 16, 2019, Cobra filed suit against Malcom seeking declaratory 

relief, including a temporary injunction against Malcom for violating certain provisions of 

the Purchase Agreement and the Employment Agreement. The cause of action alleged 

in the underlying suit is a breach of contract claim. By its pleading, verified by Mahan, 

Cobra alleged that Malcom engaged in a “competing business” and caused employees 

of Higher Power to terminate or modify their employment. That same day, the trial court 

issued a temporary restraining order. 

One month later, the trial court held a hearing to determine whether to grant a 

temporary injunction. After the hearing, the trial court granted a temporary injunction 

enjoining Malcom from (1) engaging in company business in Texas, New Mexico, and 

Oklahoma, including work for Otero and Lea County as they were former clients of Higher 

Power, (2) soliciting and hiring Higher Power’s current or former employees, and (3) 
8

soliciting, contacting, enticing, or attempting to solicit or entice Higher Power’s clients or

customers in Texas, New Mexico, and Oklahoma. Following the trial court’s ruling, 

Malcom requested findings of fact and conclusions of law, but none were filed. Pursuant 

to section 51.014(a)(4) of the Texas Civil Practice and Remedies Code, Malcom filed this 

interlocutory appeal.5 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(4) (West Supp. 

2019).

STANDARD OF REVIEW

The decision to grant or deny a temporary injunction is within the sound discretion 

of the trial court. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). Therefore, we 

review a trial court’s order granting a temporary injunction for clear abuse of discretion. 

Henry v. Cox, 520 S.W.3d 28, 33 (Tex. 2017). In that process, we limit the scope of our 

review to the validity of the order, without reviewing or deciding the underlying merits, and 

we will not disturb the order unless it is “so arbitrary that it exceed[s] the bounds of 

reasonable discretion.” Id. at 33-34 (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 

204 (Tex. 2002) (op. on reh’g)). No abuse of discretion exists if some evidence

reasonably supports the trial court’s ruling. Henry, 520 S.W.3d at 34; Butnaru, 84 S.W.3d 

at 211. Further, the trial court does not abuse its discretion when it makes a decision 

based on conflicting evidence. Loye v. Travelhost, Inc., 156 S.W.3d 615, 619 (Tex. 

App.—Dallas 2004, no pet.). In our review, we draw all legitimate inferences from the 

evidence in the light most favorable to the decision and review any legal determinations 

de novo. Id. We do not resolve factual disputes, Bright Land & Cattle, LLC v. PG-M Int’l,

LLC, No. 07-16-00336-CV, 2017 Tex. App. LEXIS 2083, at *6 (Tex. App.—Amarillo March 

5 Trial on the merits was scheduled for December 18, 2019, but was vacated pending this appeal.
9

9, 2017, no pet.) (mem. op.), and where, as here, no findings of fact or conclusions of law 

are filed, 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.” Davis v. Huey, 571 S.W.2d 

859, 862 (Tex. 1978); Tom James of Dallas, Inc. v. Cobb, 109 S.W.3d 877, 884 (Tex. 

App.—Dallas 2003, no pet.).

In a temporary injunction hearing the trial court, as factfinder, judges the credibility

of the witnesses and assigns what weight it chooses to their testimony. S. Plains SNO, 

Inc. v. Eskimo Hut Worldwide, Ltd., No. 07-19-00003-CV, 2019 Tex. App. LEXIS 3015, at 

*13 (Tex. App.—Amarillo April 12, 2019, no pet.) (mem. op.) (citations omitted). 

Accordingly, we are bound to view the evidence in the light most favorable to the trial 

court's decision. Bright Land & Cattle, 2017 Tex. App. LEXIS 2083, at *6.

APPLICABLE LAW

A temporary injunction is an extraordinary remedy granted to preserve the status 

quo pending a trial on the merits. Butnaru, 84 S.W.3d at 204. An applicant seeking relief 

must plead and prove the three specific elements: (1) a cause of action against the 

defendant, (2) a probable right to the relief sought on that cause of action, and (3) a 

probable, imminent, and irreparable injury in the interim if the injunction is not granted. 

Id.

A probable right of recovery is proven by alleging the existence of a right and 

presenting evidence tending to illustrate that the right is being denied. Friona Indep. Sch. 

Dist. v. King, 15 S.W.3d 653, 657 (Tex. App.—Amarillo 2000, no pet.). The movant for 

a temporary injunction is not required to prove ultimate success on its cause of action. 
10

Bright Land & Cattle, LLC, 2017 Tex. App. LEXIS 2083, at *5. A movant “must show only 

a likelihood of success on the merits.” DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 

686 (Tex. 1990). The movant’s burden is met simply by alleging a cause of action and 

presenting evidence tending to sustain it. Bright Land & Cattle, LLC, 2017 Tex. App. 

LEXIS 2083, at *5.

The movant for a temporary injunction must establish that it is threatened with an 

actual irreparable injury if the injunction is not granted. See, e.g., Marketshare Telecom,

L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 925 (Tex. App.—Dallas 2006, no pet.)

(citing Markel v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex. App.—San Antonio 1996, no 

pet.)). “An injury is irreparable if the injured party cannot be adequately compensated in 

damages or if the damages cannot be measured by any certain pecuniary 

standard.” Butnaru, 84 S.W.3d at 204. “[A] legal remedy is inadequate if, among other 

things, damages are difficult to calculate or their award may come too late.” SHA, LLC v. 

Northwest Tex. Healthcare Sys., No. 07-13-00320-CV, 2014 Tex. App. LEXIS 38, at *3 

(Tex. App.—Amarillo Jan. 3, 2014, no pet.) (mem. op.).

However, when a temporary injunction is sought to enforce a restrictive covenant, 

the party seeking the injunction is not required to prove irreparable injury for which there 

is no adequate remedy at law. See Letkeman v. Reyes, 299 S.W.3d 482, 486 (Tex. 

App.—Amarillo 2009, no pet.) (citing Jim Rutherford Investments, Inc. v. Terrarmar Beach 

Community Ass’n, 25 S.W.3d 845, 849 (Tex. App.—Houston [14th Dist.] 2000, pet. 

denied)). See also Munson v. Milton, 948 S.W.2d 813, 815 (Tex. App.—San Antonio 

1997, pet. denied). Instead, all that is required is proof that the defendant intends to 

commit an act that would breach the restrictive covenant. Letkeman, 299 S.W.3d at 486.
11

CORY MAHAN’S AFFIDAVIT

Before addressing the issues related to the Temporary Injunction, we address the 

issue of Mahan’s affidavit in support of Cobra’s pleading. Rule 682 of the Texas Rules of 

Civil Procedure requires a sworn petition for injunction to be verified by affidavit. TEX. R. 

CIV. P. 682. As noted in footnote one, supra, Malcom did not specifically dedicate an 

issue to the affidavit. Instead, he commingled the argument with other another issue. 

Following closing arguments at the hearing, the parties debated whether the 

affidavit constituted sufficient evidence to support issuance of a temporary injunction. 

Malcom made a hearsay objection and asked that the affidavit be excluded. The trial 

court noted Malcom’s objection and announced the following:

I’ll make some reference in my ruling to whether or not I considered [the 

affidavit] or whether or not I sustained your objection.

The temporary injunction is silent on whether the trial court ruled on the hearsay objection 

or whether it considered the affidavit. Malcom concedes “the Court failed to do so.” But 

in this court, he argues that the affidavit is conclusory and then suggests “it is presumable 

that the Court did in fact, consider this affidavit as evidence, and such was an abuse of 

discretion.”

First, Appellant’s hearsay objection in the trial court does not comport with his 

argument on appeal that the affidavit is conclusory. The differing theories result in waiver 

of the issue. See Jem Int’l, Inc. v. Warner Props., L.P., No. 07-17-00042-CV, 2018 Tex. 

App. LEXIS 7764, at *9 (Tex. App.—Amarillo Sept. 24, 2018, no pet.) (mem. op.) (citing 

Knapp v. Wilson N. Jones Mem’l Hosp., 283 S.W.3d 163, 170 (Tex. App.—Dallas 2009, 

no pet.)). Second, there is nothing in the record to indicate the trial court ruled on 
12

Malcom’s hearsay objection, even implicitly. See TEX. R. APP. P. 33.1(a)(2). See also In 

re R.A.W., 07-13-00316-CV, 2015 Tex. App. LEXIS 3039, at *12 (Tex. App.—Amarillo 

March 27, 2015, no pet.) (mem. op.). Without obtaining a ruling, Malcom has again 

forfeited his complaint. 

PRESERVATION OF ERROR ON SPECIFICITY OF THE TEMPORARY INJUNCTION

One of Malcom’s complaints is that the Temporary Injunction fails to comply with 

the requirements of Rule 683 of the Texas Rules of Civil Procedure. Cobra responds that 

Malcom failed to preserve his complaint by not first raising it in the trial court. While we 

agree with Cobra that Malcom failed to preserve the issue, the path to that conclusion is 

not without controversy. 

Rule 683 provides in pertinent part that an order granting an injunction “shall set 

forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable 

detail and not by reference to the complaint or other documents, the act or acts sought to 

be restrained . . . .” TEX. R. CIV. P. 683. In the underlying case, the Temporary Injunction 

recites the trial court’s findings as follows:

1. Plaintiff and Defendant (the “Parties”) entered into an agreement for the 

purchase by Plaintiff of Higher Power Electrical, LLC (the “Company”), 

from Defendant dated April 21, 2017 (the Purchase Agreement);

2. Defendant worked as President of the Company following 

consummation of the transaction contemplated in the Purchase 

Agreement until his resignation on October 13, 2018;

3. Defendant went to work for BHI Energy in approximately February 2019;

4. BHI Energy is engaged, inter alia, in the Company Business as defined 

by the Purchase Agreement, including in the Territory (Texas, New 

Mexico and Oklahoma) as defined by the Purchase Agreement;
13

5. AEP is an investor owned utility (IOU) as defined in the Purchase 

Agreement operating in the Territory as defined by the Purchase 

Agreement;

6. Defendant engaged in the Company Business or assisted BHI in 

engaging in the Company Business in the Territory (Texas) when he 

reviewed documents and participated in email communications

regarding BHI Energy work or proposed work for AEP in Texas;

7. Oklahoma Gas & Electric (OG&E) is an IOU as defined in the Purchase 

Agreement operating in the Territory as defined by the Purchase 

Agreement;

8. Defendant engaged in the Company Business or assisted BHI in 

engaging in the Company Business in the Territory (Oklahoma) when 

he participated in a meeting with OG&E officials and participated in email 

communications regarding BHI Energy work or proposed work for OG&E 

in Oklahoma;

9. Otero and Lea County Cooperatives, although not IOUs, are entities who 

are clients or customers of the Company.

10.To the extent the Purchase Agreement might be construed to prohibit 

Defendant from employment in the Company Business outside of the 

Territory, it [sic] overly broad.

11.There is evidence that Defendant engaged in other conduct that violated 

the terms of the Purchase Agreement; and

12.There exists a probable right of recovery by Plaintiff and a probable 

injury to Plaintiff.

As relevant here, the trial court then described the acts sought to be restrained as 

(1) engaging in the company business in Texas, New Mexico, and Oklahoma including 

work for Otero and Lea County Cooperatives which were clients of Higher Power, (2) 

soliciting, hiring, or encouraging any person employed by Higher Power, and (3) soliciting, 

contacting, enticing, or attempting to solicit or entice any clients or customers of Higher 

Power in Texas, New Mexico, or Oklahoma to divert their businesses from Higher Power. 
14

Malcom contends the Temporary Injunction is unenforceable and should be 

dissolved because the provisions are not specific and detailed. Specifically, Malcom 

complains the trial court failed to issue a finding on the absence of an adequate legal 

remedy or the existence of an irreparable injury which cannot be adequately 

compensated in damages and that the “only indicia of any probable injury . . . is the 

conclusory statement appearing in finding number [12].” 

A temporary injunction that fails to comply with the mandatory requirements of Rule 

683 is void. See Interfirst Bank San Felipe N.A. v. Paz Construction Co., 715 S.W.2d 

640, 641 (Tex. 1986). Courts of appeals are split on whether a party can waive the right 

to complain of the failure of a temporary injunction to comply with Rule 683. See Tex. 

Tech Univ. Health Scis. Ctr. v. Rao, 105 S.W.3d 763, 768 (Tex. App.—Amarillo 2003, pet. 

dism’d).

Relying on Paz Construction, most appellate courts have held that a complaint of 

a trial court’s failure to comply with Rule 683 is not waived on appeal. See Indep. Capital 

Mgmt. L.L.C. v. Collins, 261 S.W.3d 792, 795 n.1 (Tex. App.—Dallas 2008, no pet.); EOG 

Res., Inc. v. Gutierrez, 75 S.W.3d 50, 52-53 (Tex. App.—San Antonio 2002, no pet.) Big 

D Properties, Inc. v. Foster, 2 S.W.3d 21, 23 (Tex. App.—Fort Worth 1999, no pet.); 360 

Degree Communications Co. v. Grundman, 937 S.W.2d 574, 575 (Tex. App.—Texarkana 

1996, no writ).

But the Third Court of Appeals and this court, expressing a minority view, have 

applied the principles of procedural default and have found that failure to make a trial 

objection to the form of the injunction waives the party’s right to complain on appeal. See 
15

Taylor House Authority v. Shorts, 549 S.W.3d 865, 880 (Tex. App.—Austin 2018, no pet.); 

Emerson v. Fires Out, Inc., 735 S.W.2d 492, 493-94 (Tex. App.—Austin 1987, no writ); 

Rao, 105 S.W.3d at 768. See also Hoist Liftruck Mfg. v. Carruth-Doggett, Inc., 485 

S.W.3d 120, 127 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing Rao, 105 S.W.3d 

at 768 and explaining why error preservation rules “should apply with double force in 

expedited proceedings”).

In Rao, the trial court made a finding that “Rao tendered evidence of imminent 

harm, irreparable injury and an inadequate legal remedy.” 105 S.W.3d at 767. Texas 

Tech complained that the finding was conclusory and did not meet the requirements of 

specificity required by Rule 683. Id. Notwithstanding the conclusory nature of the trial 

court’s findings, this court found that Texas Tech’s complaint regarding Rule 683 had not 

been preserved. In addition, we reviewed the complaint and found the trial court’s stated 

reasons in the temporary injunction were sufficient to comply with Rule 683. See id. at 

768. See also Pinebrook Props., Ltd. v. Brookhaven Lake Prop. Owners Ass’n, 77 

S.W.3d 487, 504-05 (Tex. App.—Texarkana 2002, pet. denied) (finding a recitation of the 

reasons that an injunction issued because the defendants had no adequate remedy at 

law, the rights involved were unique and irreplaceable, and money damages would not 

be a sufficient remedy were sufficient to meet the requirements of Rule 683).

Adhering to our precedent in Rao, we find that Malcom did not preserve his 

complaint that the Temporary Injunction was not specific enough. However, even if he 

had preserved the issue, his complaint that finding number 12 is conclusory for failing to 

include a finding on the absence of an adequate legal remedy or the existence of an 

irreparable injury is groundless. In its finding, the trial court recited that “a probable injury” 
16

exists. Such a finding subsumes that the injury is irreparable and that there is an absence 

of an adequate legal remedy. See Butnaru, 84 S.W.3d at 204. Similar findings have 

been found sufficient to meet the specificity requirements of Rule 683. See Rao, 105 

S.W.3d at 767 (citing Pinebrook Props., Ltd., 77 S.W.3d at 504-05). Appellant’s complaint 

regarding Rule 683 is overruled.

TRIAL COURT’S FAILURE TO REFORM UNREASONABLE TERMS OF COVENANT OR 

DISSOLVE THE TEMPORARY INJUNCTION UNDER EQUITABLE PRINCIPLES

One of Malcom’s issues is abuse of discretion by the trial court in failing to reform 

unreasonable terms of the non-competition covenant pursuant to section 15.51 of the 

Texas Covenant Not to Compete Act. See TEX. BUS. & COM. CODE ANN. § 15.50 - .52

(West 2011). Section 15.51, however, “applies only when the issue of enforceability of 

the covenant is finally determined and reformation is made as part of the final remedy.” 

See Primary Health Physicians, P.A. v. Wallace Sarver, D.O., 390 S.W.3d 662, 665 (Tex. 

App.—Dallas 2012, no pet.). An appeal from a ruling on a temporary injunction based on 

a non-competition covenant does not present for appellate review the definitive question 

of whether the covenant is enforceable under the Act. Insgroup, Inc. v. Langley, No. 14-

18-01071-CV, 2020 Tex. App. LEXIS 2685, at *20 (Tex. App.—Houston [14th Dist.] April 

7, 2020, no pet. h.) (mem. op.). Additionally, at this stage, we do not consider arguments 

aimed at the merits of the underlying breach of contract claim. See Comed Med. Sys.,

Co. v. AADCO Imaging, LLC, No. 03-14-00593-CV, 2015 Tex. App. LEXIS 1762, at 

*11 (Tex. App.—Austin Feb. 25, 2015, no pet.) (mem. op.) (noting that “consistent with 

the purposes of a temporary injunction, an appeal of such an order does not present the 

merits of the underlying case for review . . . .”). 
17

In another issue, Malcom contends that equitable principles require dissolution of 

the Temporary Injunction because he is a mere individual challenging a corporate entity 

and the non-competition covenant is “facially unconscionable and overly broad.” Again, 

Malcom invokes the Covenant Not to Compete Act. As previously noted, the Act does 

not apply until the enforceability of the covenant is finally determined. See Insgroup, Inc., 

2020 Tex. App. LEXIS 2685, at *20.

Ultimately, the only question before us in this interlocutory appeal is whether the 

trial court abused its discretion in issuing the Temporary Injunction. We will 

simultaneously consider Malcom’s remaining issues challenging the trial court’s 

discretion in issuing the Temporary Injunction.

ANALYSIS

In his quest for dissolution of the Temporary Injunction, Malcom does not contest 

the first element—whether Cobra met its burden to plead and prove a cause of action 

against him. Nevertheless, we note that Cobra pleaded a breach of contract claim and 

presented evidence in support of its claim. As previously noted, when a temporary 

injunction is sought to enforce a restrictive covenant, the party seeking the injunction need 

only show that the defendant intends to commit an act that would breach the restrictive 

covenant. See Letkeman, 299 S.W.3d at 486.

The second and third elements that must be pleaded and proved are a probable 

right to recovery, i.e., a likelihood of success in the underlying suit, and a probable and 

irreparable injury which includes the absence of an adequate legal remedy. Through 
18

testimony and numerous emails and exhibits, to be discussed herein, Cobra has satisfied 

its burden.

At the hearing on Cobra’s petition for injunctive relief, testimony was presented by 

Mark Guess, its chief of operations officer, Max Wolford, a vice president at BHI, and 

Malcom. Mahan, Malcom’s successor at Higher Power, disregarded a subpoena to 

appear and testify. Guess had only been employed by BHI since May 2018.

It is undisputed that BHI is a direct competitor of Higher Power. Guess testified he 

had reviewed the Purchase Agreement and was aware of the restrictive covenants 

agreed to by Malcom to not compete and to not solicit Higher Power’s clients or 

employees. The Employment Agreement prohibited Malcom or any of his “affiliates”—a 

person under his control—from engaging or assisting others in engaging in “restricted 

business”—the business of servicing investor-owned utilities, including providing services 

to the oil and gas industry—in the territories of Texas, New Mexico, and Oklahoma. 

Two of Higher Power’s former clients included Otero and Lea County, both 

cooperatives and not IOUs. Guess testified that Higher Power lost those clients to BHI 

because of Malcom. During cross-examination, however, he was asked whether the 

decline in the price of Higher Power’s stock as well as lost clients and contracts could 

have been attributable to the scandal involving its former president and his indictment for 

corruption during the hurricane recovery efforts in Puerto Rico. Guess answered that he 

was not familiar with what drives the stock market and added that he did not know the 

particulars of the corruption allegation.
19

The two agreements involved in the sale of Higher Power prohibited Malcom from 

directly hiring or soliciting any Higher Power employees during the two-year restricted 

period. On April 18, 2019, Malcom emailed Wolford and others recommending salaries 

for three employees of Higher Power once they became employees of BHI. Malcom also 

suggested hiring one of the employees as a journeyman instead of as a foreman. Tommy 

Strickland, general foreman for Higher Power, was one of the employees discussed in 

the email. Malcom made a recommendation on his salary at BHI in the position of 

foreman. 

The evidence showed that Strickland worked for Higher Power until May 3, 2019.

However, before leaving his position, he was part of an email chain dated April 26th and 

27th, in which he engaged with the operations manager of Otero. Otero’s operations 

manager asked Strickland to reschedule a meeting “to show up on the 8th” (presumably 

in May after Strickland went to work for BHI) “to get together on a price from BHI Energy 

before we can get started.” Strickland then emailed Wolford at BHI advising him that 

Otero’s operations manager wanted a price list. Wolford responded, “I’ll get with [Malcom] 

to put things together.” Malcom then emailed Wolford and Strickland asking Strickland to 

“get me the underground unit spreadsheet.”

In another email chain, BHI’s vice president of finance asked for confirmation of 

rates for new jobs. Some of the jobs listed included Lea County, Oklahoma Gas and 

Electric, and Texas New Mexico Power. Lea County was listed in Schedule 3.09(a) of 

the Purchase Agreement as a “material customer” of Higher Power that was unavailable 

to Malcom. The other two companies were located in the territory in which Malcom was 

prohibited from engaging in company business. The prohibition notwithstanding, Malcom 
20

responded to the email that “the rates are good except for these” and pointed some of 

them out. As the email chain continued, Malcom eventually expressed his approval for 

the new job numbers. 

In another email chain, Malcom was actively involved with another former client of 

Higher Power listed in Schedule 3.09(a) of the Purchase Agreement—West Texas AEP. 

Other email chains introduced into evidence showed that Malcom participated in 

discussions and scheduled meetings to discuss crews for Texas New Mexico Power and 

Oklahoma Gas and Electric, companies in the restricted territories.

Wolford testified he was hired by BHI on April 15, 2019, as operations manager for 

territories west of the Mississippi. He testified that Malcom was not involved in work in 

the restricted territories and instead was in charge of operations east of the Mississippi. 

Wolford also testified that BHI did not solicit Higher Power’s clients. According to Wolford, 

Otero’s operations manager was dissatisfied with Higher Power and reached out to him 

to make a change. He also testified that he was the one who offered Strickland and his 

crews positions at BHI. According to Wolford, it was common in the industry for crews to 

follow their superintendents or foremen and that Malcom had not been involved in 

soliciting Higher Power’s employees. 

Regarding the numerous emails, Wolford claimed that it was very common to send 

them to a “wide list of people” who may not be involved with the subject of the email. He 

denied any knowledge of why Strickland and Malcom might have been communicating 

by emails concerning price lists.
21

During cross-examination, Wolford testified he was not an “affiliate” of Malcom’s 

and that Malcom had no control over him or over operations in Texas, New Mexico, or 

Oklahoma. They were equals at BHI—he managed the territory west of the Mississippi 

and Malcom managed operations east of the Mississippi.

Malcom testified he did not hire Strickland or any crews from Higher Power. He 

claimed that Wolford hired Strickland and echoed Wolford’s testimony that crews follow 

their foremen. He claimed he was simply included in many email chains as a part of the 

company practices; however, he was not involved in any company business in the 

restricted territories. He was adamant that his role with BHI in servicing clients in the 

restricted territory was purely administrative. He denied being involved in any 

negotiations that would violate the restrictive covenants and claimed that his participation 

in emails involving pricing was “post pricing” after agreements had already been reached.

When questioned about certain emails involving Strickland and other Higher Power 

employees, he explained that he sent those emails for Wolford because Wolford did not 

yet have his company computer. He also explained that he was involved in many emails 

with other businesses because his opinion was often sought given his experience and 

reputation in the business. He denied approaching any of Higher Power’s clients and 

speculated that Strickland probably influenced Otero into leaving Higher Power and 

becoming a client of BHI.

Malcom testified he left Higher Power before the three-year transition period 

expired because he was dissatisfied with the company. He had been notified by a coworker of a sexual harassment claim against Cobra’s then-president and he was 
22

frustrated by the operations in Puerto Rico. He also heard that Mahan was going to 

replace him as president and he would be moved to sales.

The trial court was confronted with conflicting testimony. However, the numerous 

emails either sent or received by Malcom, on their face, appear to directly violate some 

of the restrictive covenants to which he had agreed. For the most part, Malcom was not 

a passive recipient of the email chains. The emails showed that Malcom had more than 

a passive involvement with hiring decisions concerning former Higher Power employees. 

They also showed that job numbers depended on his approval and that he was involved 

in meetings with companies in the restricted territories. Contrary to his testimony, the 

emails showed his participation to be more than solely in an administrative capacity. 

There is evidence that Malcom intended to commit acts in breach of the restrictive 

covenants to which he had agreed. Viewing the evidence in the light most favorable to 

the trial court’s ruling and deferring to the trial court’s role as fact finder, we find no abuse 

of discretion in the issuance of the Temporary Injunction. Malcom’s remaining issues are 

overruled.

CONCLUSION

Having overruled or otherwise disposed of all of Malcom’s issues, the trial court’s 

Temporary Injunction is affirmed.

Patrick A. Pirtle

 Justice