1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-18-00217-CV

_______________________

TENS RX, INC., Appellant

V.

RANDI M. HANIS, Appellee

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Cause No. 16-11-13495-CV

MEMORANDUM OPINION

Appellant TENS Rx, Inc. (TENS) appeals the trial court’s order granting 

Appellee Randi M. Hanis (Hanis) summary judgment in its suit against Hanis for 

breach of contract and tortious interference with prospective relations. In granting 

the take-nothing summary judgment in favor of Hanis, the trial court found the 

covenant not to compete unenforceable. In one appellate issue, TENS argues the trial 

court erred in granting summary judgment in favor of Hanis because the covenant 
2

not to compete is enforceable and meets the requirements of the Covenants Not to 

Compete Act (CNCA). See Tex. Bus. & Com. Code Ann. § 15.50-.52. We affirm 

the trial court’s judgment.

Background

On November 21, 2016, TENS filed suit against Hanis. According to TENS’s 

First Amended Original Petition, in 2013 Hanis obtained employment with TENS 

and executed an employment contract with the company.1 The employment contract 

contained the following non-competition clause:

6.07 Covenant – Restriction of Competition. During the one year period 

following Employee’s termination of the employment relationship 

Employee agrees that he shall not compete, either directly or indirectly, 

either as an employee, employer, consultant, agent, principal, partner, 

stockholder, corporate officer, director, or in any other individual or 

representative capacity, engage or participate in any business that is in 

 1 The employment agreement states that

. . . Employer is engaged and has been engaged for many years in the 

business of providing a wide range of electro-therapy products and 

services to the general public, and in particular, goods and devices such 

as TENS, Muscle Stim, Interferential, Microcurrent, and High-Volt 

Pulsed Galvanic therapies for home use by the patients of medical 

practitioners, including but not limited [to] those patients of medical 

doctors, clinics, chiropractors, and other individuals and entities 

engaged in the practice of medicine, chiropractic science, physical 

therapy and other practitioners of the healing arts in similar fields of 

practice (hereinafter referred to as “Employer’s Customers”). The 

patients and other individuals and entities which actually purchase the 

Employer’s goods and services by and through the relationship of the 

Employer with the Employer’s Customers, are hereby referred to as the 

“Ultimate Customers”. 
3

competition in any manner whatsoever with the business of Employer 

in any state or geographical territory in which Employer is conducting, 

has conducted or anticipates conducting its business, nor shall 

Employee solicit for employment or encourage current employees of 

Employer to terminate their employment with Employer. Employee 

represents to Employer that the enforcement of the restriction against 

non-competition would not be unduly burdensome to Employee and 

that in order to induce Employer to employ the Employee and provide 

the Employee with training and disclose highly confidential 

information is sufficient consideration given by the Employer to 

Employee for the covenant not to compete and that this covenant is 

necessary to protect Employer’s interests which the Employee agrees 

are worthy of protection. Employee further represents and 

acknowledges that Employee is willing and able to compete in other 

geographical areas not prohibited by the non-compete covenant. In the 

event that a court of competent jurisdiction determines that the noncompete covenant does not meet the requirements of §15.50 of the 

Texas Business & Commerce Code (“TBCC”), then Employer and 

Employee agree that Employer is deemed to have requested 

reformation by such court pursuant to §15.51(c) of the TBCC. 

Employee agrees that a breach or violation of the covenant not to 

compete by Employee shall entitle Employer, as a matter of right, to an 

injunction issued by any court of competent jurisdiction, restraining any 

further or continued breach or violation of this covenant. Such right to 

an injunction shall be cumulative and in addition to, and not in lieu of, 

any other remedies to which Employer may show itself justly entitled. 

Further, during any period in which Employee is in breach of this 

covenant not to compete, the time period of this covenant shall be 

extended for an amount of time that Employee is in breach hereof.

The representations and covenants contained in this Paragraph 6.07 on 

the part of Employee will be construed as ancillary to and independent 

of any other provision of this Agreement, and the existence of any claim 

or cause of action of Employee against Employer or any officer, 

director, or shareholder of Employer, whether predicated on this 

Agreement or otherwise, shall not constitute a defense to the 

enforcement by Employer of the covenants of Employee contained in 

this paragraph. In addition, the provisions of this paragraph shall 
4

continue to be binding upon Employee in accordance with its terms, 

notwithstanding the termination of Employee’s employment.

The parties to this Agreement agree that the limitations contained in 

this paragraph with respect to geographic area, duration, and scope of 

activity are reasonable. However, if any court shall determine that the 

geographic area, duration, or scope of activity of any restriction 

contained in this paragraph is unenforceable, it is the intention of the 

parties that such restrictive covenant set forth herein shall not thereby 

be terminated but shall be deemed amended to the extent required to 

render it valid and enforceable. 

The amended petition further alleges that Hanis terminated her employment 

with TENS on October 3, 2016, and immediately sought employment with, and 

continues to be employed by, a direct competitor of TENS in violation of the 

employment contract. In its amended petition, TENS asserted causes of action for 

breach of contract and tortious interference with prospective relations. TENS also 

pleaded specific performance and requested that the trial court order Hanis to 

immediately cease competition with TENS. 

Hanis filed an answer and a traditional motion for summary judgment. In her 

motion for summary judgment, Hanis stated that she has worked in portable durable 

medical equipment sales since 2002, and she argued that the non-competition 

agreement is unenforceable because it does not have a reasonable limitation as to 

geographic area and does not have a reasonable limitation on the scope of activity to 

be restrained. 
5

Hanis argued that Paragraph 6.07’s overly broad prohibition of competition

“in any state or geographical territory in which Employer is conducting, has 

conducted or anticipates conducting its business[]” is based only on the activities of 

TENS and bears no relation to her activities. Hanis also argued that this restriction 

is not limited to a defined territory or even a geographic area in which TENS did 

business while Hanis was employed with TENS. 

As to Paragraph 6.07’s restriction on scope of activity, Hanis argued it 

amounts to an unenforceable industry-wide prohibition. According to Hanis, 

Paragraph 6.07’s language that she “agrees that [s]he shall not compete, either 

directly or indirectly, either as an employee, employer, consultant, agent, principal, 

partner, stockholder, corporate officer, director, or in any other individual or 

representative capacity, engage or participate in any business that is in competition 

in any manner whatsoever with the business of Employer” is based on TENS’s

activities not Hanis’s, restricts her ability to contact TENS’s customers whether she 

has worked with them or not, and prohibits her from selling goods or providing 

services to ultimate customers TENS would not, did not, or could not service. Hanis 

attached her affidavit to the motion and averred that when presented with the 

employment contract, she had serious reservations about signing the contract 

because it included a non-competition agreement, but she was informed by a TENS 
6

employee that the non-competition portion of the contract was a mere formality, not 

material to the contract, and would not be enforced. According to Hanis’s affidavit, 

she signed the agreement based on these assurances. Hanis averred that she 

terminated her employment with TENS on October 3, 2016, and she went to work 

with Analgesic Health Care in Florida, with whom she had previously been 

employed. 

TENS filed a response to the motion for summary judgment and argued that 

by executing the agreement, Hanis agreed with the language of Paragraph 6.07 that 

states the covenant not to compete is not unduly burdensome, the geographic 

restrictions were reasonable, and acknowledges that TENS conducted sales on a 

nationwide basis with a significant amount of business in Texas and Florida. 

According to TENS, “[i]t is disingenuous for Hanis to now assert the contrary.” 

TENS argued in the alternative that if the trial court found the terms of the covenant

not to compete unreasonable, that the trial court should not grant summary judgment 

but instead reform the covenant not to compete to the extent necessary pursuant to 

section 15.51(c) of the Texas Business and Commerce Code and in accordance with 

the terms of the employment contract Hanis signed. 

After submission, the trial court issued a written order granting summary 

judgment in favor of Hanis. The trial court found that the “non-competition 
7

agreement is not reasonable in geographic scope or scope of activity to be restrained 

and is therefore unenforceable.” TENS filed a motion for new trial and motion for 

reconsideration, which the trial court denied. TENS appealed. 

Issue on Appeal

In its sole issue on appeal, TENS argues that the trial court erred in granting 

summary judgment in favor of Hanis by finding the covenant not to compete was 

not reasonable in geographic scope or scope of activity to be restrained and was 

therefore unenforceable. TENS asserts that the terms of the covenant not to compete 

are reasonable, the covenant states that the terms are reasonable, and that Hanis 

“admits” the “fact” that the terms are reasonable by executing the agreement. 

Furthermore, TENS maintains that if the trial court believed the covenant not to 

compete was unreasonable, it should have reformed the covenant not to compete 

instead of finding it unenforceable. 

Standard of Review and Applicable Law

In a traditional motion for summary judgment, the movant has the burden of 

showing, with competent proof, that no genuine issue of material fact exists, and that 

it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a; Nixon v. Mr. 

Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When a defendant is the movant 

for summary judgment, it has the burden to conclusively negate at least one essential 
8

element of the plaintiff’s cause of action, or conclusively establish each element of 

an affirmative defense. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 

472, 476-77 (Tex. 1995); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 

1984). If the moving party produces evidence entitling it to summary judgment, the 

burden shifts to the non-movant to raise a material fact issue sufficient to defeat 

summary judgment. Centerpoint Builders GP, LLC v. Trussway Ltd., 436 S.W.3d 

882, 885 (Tex. App.—Beaumont 2014), aff’d, 496 S.W.3d 33, 36 (Tex. 2016). In 

deciding whether a disputed material fact issue exists precluding summary 

judgment, we resolve every reasonable inference in favor of the non-movant and 

take all evidence favorable to it as true. See Nixon, 690 S.W.2d at 548-49;

Centerpoint Builders, 436 S.W.3d at 885.

The enforceability of a covenant not to compete is a question of law. Light v. 

Centel Cellular Co., 883 S.W.2d 642, 644 (Tex. 1994); Sadler Clinic Ass’n, P.A. v. 

Hart, 403 S.W.3d 891, 895 (Tex. App.—Beaumont 2013, pet. denied). “The 

hallmark of enforcement is whether or not the covenant is reasonable.” Marsh USA 

Inc. v. Cook, 354 S.W.3d 764, 777 (Tex. 2011).

[A] covenant not to compete is enforceable if it is ancillary to or part of 

an otherwise enforceable agreement at the time the agreement is made 

to the extent that it contains limitations as to time, geographical area, 

and scope of activity to be restrained that are reasonable and do not 

impose a greater restraint than is necessary to protect the goodwill or 

other business interest of the promisee. 
9

Tex. Bus. & Com. Code Ann. § 15.50(a).

Because the covenant not to compete signed by Hanis relates to a provision 

of personal services, TENS has the burden of proving that its terms comply with the 

CNCA. See id. § 15.51(b) (“If the primary purpose of the agreement to which the 

covenant is ancillary is to obligate the promisor to render personal services, for a 

term or at will, the promisee has the burden of establishing that the covenant meets 

the criteria specified by Section 15.50 of this code.”); Dickerson v. Acadian Cypress 

& Hardwoods, Inc., No. 09-13-00299-CV, 2014 Tex. App. LEXIS 3889, at *21

(Tex. App.—Beaumont Apr. 10, 2014, no pet.) (mem. op.) (construing an 

employment agreement by a sales employee as a personal services contract). 

Geographic Limits and Scope of Activity

On appeal, TENS cites no authority to support the reasonableness of the 

restrictions challenged in Hanis’s motion for summary judgment. Instead, TENS 

merely states that Hanis “admits” that they are reasonable because she signed the 

covenant stating that the restrictions were reasonable. In the trial court and now on 

appeal Hanis argues Paragraph 6.07’s prohibition of her working “in any state or 

geographical territory in which Employer is conducting, has conducted or anticipates 

conducting its business[]” is overly broad and based only on the activities of TENS, 
10

bears no relation to her activities, and is not limited to a defined territory or even a 

geographic area TENS did business in while Hanis was employed with TENS. 

In determining the reasonableness of a covenant not to compete, we consider 

whether the covenant contains limitations that are reasonable as to geographical area 

and do not “impose a greater restraint than is necessary to protect the goodwill or 

other business interest of the promisee.” Marsh, 354 S.W.3d at 777. A restraint is 

unnecessary if it is broader than necessary to protect the legitimate interests of the 

employer. DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 682-84 (Tex. 1990). 

Whether a covenant is a reasonable restraint on trade is a question of law for the 

court. Emmons v. Stewart Glass & Mirror, Inc., No. 09-95-119-CV, 1996 Tex. App.

LEXIS 2892, at *7 (Tex. App.—Beaumont Jan. 25, 1996, no writ); John R. Ray & 

Sons, Inc. v. Stroman, 923 S.W.2d 80, 85 (Tex. App.—Houston [14th Dist.] 1996, 

writ denied); see also Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 386-88 

(Tex. 1991). The Texas Supreme Court has held that an industry-wide exclusion is 

unreasonable. Haass, 818 S.W.2d at 386-88. 

The territory in which the employee worked for an employer is generally 

considered to be the benchmark of a reasonable geographical restriction. Butler v. 

Arrow Mirror & Glass, Inc., 51 S.W.3d 787, 793 (Tex. App.—Houston [1st Dist.] 

2001, no pet.); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 660 (Tex. App.—Dallas 
11

1992, no writ). “Noncompete covenants with broad geographical scopes have been 

held unenforceable, particularly when no evidence establishes that the employee 

actually worked in all areas covered by the covenant.” Zep Mfg. Co., 824 S.W.2d at 

661. Here, there is no definite territory stated and no evidence that Hanis worked in 

all areas covered by the covenant. It is also unreasonable to impose a condition upon 

Hanis that would require her to know where TENS “anticipates doing its business.” 

See Cobb v. Caye Publ’g Grp., Inc., 322 S.W.3d 780, 785 (Tex. App.—Fort Worth 

2010, no pet.) (“The parties have not cited, and we have not found, a case in which 

a geographical limitation including areas where an employer does not currently 

operate but has targeted for future potential expansion, standing alone, is 

reasonable.”). We conclude the geographic restriction in the covenant not to compete 

here is significantly broader than the geographic scope of Hanis’s employment with 

TENS. The covenant is broader than is reasonably necessary to protect the interests 

of TENS. See Marsh, 354 S.W.3d at 777; see also Zep Mfg. Co., 824 S.W.2d at 661. 

As to the restriction on the scope of activity, Hanis argues that the language 

in Paragraph 6.07 that “[s]he shall not compete, either directly or indirectly, either 

as an employee, employer, consultant, agent, principal, partner, stockholder, 

corporate officer, director, or in any other individual or representative capacity, 

engage or participate in any business that is in competition in any manner whatsoever 
12

with the business of Employer” is based on TENS’s activities not Hanis’s, restricts 

her ability to contact TENS’s customers whether she has worked with them or not, 

and prohibits her from selling goods or providing services to ultimate customers 

TENS would not, did not, or could not service. Hanis argues this provision amounts 

to an unenforceable industry-wide prohibition.

The law is well settled that “[i]n the case of covenants applied to a personal 

services occupation, such as that of a salesman, a restraint on client solicitation is 

overbroad and unreasonable when it extends to clients with whom the employee had 

no dealings during his [or her] employment.” Stroman, 923 S.W.2d at 85 (citing 

Haass, 818 S.W.2d at 386-88; Daytona Grp. of Tex., Inc. v. Smith, 800 S.W.2d 285, 

288 (Tex. App.—Corpus Christi 1990, writ denied)). We conclude that the scope of 

activity contained in the non-competition provision is unreasonable in that it 

prohibits Hanis from soliciting clients that she had no dealings with when employed 

by TENS. See id. Furthermore, the overly-broad language prohibits Hanis from 

directly or indirectly competing, engaging, or participating in any business that is in 

competition in any manner with TENS’s business. Because this restriction is not 

limited to the type of work Hanis performed for TENS, it also unreasonably limits 

the scope of activity to be restrained. See id.
13

TENS also contends that the trial court erred in not reforming the covenant 

not to compete to the extent necessary. The CNCA provides in pertinent part:

If the covenant is found to be ancillary to or part of an otherwise 

enforceable agreement but contains limitations as to time, geographical 

area, or scope of activity to be restrained that are not reasonable and 

impose a greater restraint than is necessary to protect the goodwill or 

other business interest of the promisee, the court shall reform the 

covenant to the extent necessary to cause the limitations contained in 

the covenant as to time, geographical area, and scope of activity to be 

restrained to be reasonable and to impose a restraint that is not greater 

than necessary to protect the goodwill or other business interest of the 

promisee and enforce the covenant as reformed[.]

Tex. Bus. & Com. Code Ann. § 15.51(c). Assuming without deciding that the 

covenant is ancillary to or part of an otherwise enforceable agreement, we conclude 

that the exercise of reformation in this case would be futile as the covenant not to 

compete expired by its own terms on October 3, 2017, one year from the date of 

termination of Hanis’s employment. See Stroman, 923 S.W.2d at 85 (explaining 

covenant expired so “any reformation of that provision by the trial court would have 

been an exercise in futility.”). Because the covenant not to compete is unenforceable 

as written, TENS is precluded from recovering damages on its claims. See Tex. Bus. 

& Com. Code Ann. 15.51(c) (stating court must reform unreasonable covenant and 

enforce it as reformed “except that the court may not award the promisee damages 

for a breach of the covenant before its reformation and the relief granted to the 

promisee shall be limited to injunctive relief[]”); see also Haass, 818 S.W.2d at 388 
14

(“Since [plaintiff] obtained no reformation of the covenant before [defendant’s] 

actions for which it sought damages, the act would prohibit [plaintiff] from obtaining 

damages.”). 

In summary, the trial court did not err in granting summary judgment on the 

basis that the covenant not to compete was unenforceable because it was 

unreasonable in its geographic restriction and scope of activity to be restrained. And, 

the trial court did not err in not reforming the covenant because the term of the 

covenant had already expired and any reformation by the trial court would have been 

an exercise in futility.

We overrule Appellant’s issue on appeal and affirm the trial court’s judgment.

AFFIRMED.

_________________________

 LEANNE JOHNSON

 Justice

Submitted on October 25, 2019

Opinion Delivered December 5, 2019

Before McKeithen, C.J., Horton and Johnson, JJ.