NUMBER 13-13-00495-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

DOWN TIME-SOUTH 

TEXAS, LLC, Appellant,

v.

GLEN ROY ELPS, Appellee.

On appeal from the County Court at Law No. 3

of Nueces County, Texas.

MEMORANDUM OPINION 

Before Chief Justice Valdez and Justices Benavides and Longoria

Memorandum Opinion by Justice Longoria

This is an accelerated, interlocutory appeal of an order entered by County Court 

at Law Number Three of Nueces County, Texas denying an application for a temporary 

injunction filed by Down Time – South Texas, LLC (“Down Time”) in its suit against Glen 
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Roy Elps, a former employee and current member of Down Time. See TEX. CIV. PRAC. &

REM. CODE ANN. § 51.014(a)(4) (West 2008). For the reasons set forth below, we affirm 

the trial court’s order.

I. BACKGROUND

In the underlying suit, Down Time is seeking to enforce the provisions of a noncompete agreement. See TEX. BUS. & COM. CODE ANN. § 15.51(a) (West 2011). On 

August 19, 2013, the trial court held a hearing on Down Time’s application for a temporary 

injunction; however, only one exhibit was admitted into evidence. The exhibit consists of 

eighteen pages of regulations applicable to Down Time’s members, including Mr. Elps. 

Regulation 5.4 sets forth the non-compete agreement at issue in this case. 

At the outset of the hearing, Mr. Elps’ attorney objected to Down Time’s request 

for a temporary injunction on the grounds that the non-compete agreement is 

unenforceable as a matter of law because the duration of the agreement is indefinite. 

See TEX. BUS. & COM. CODE ANN. § 15.50(a) (West 2011) (providing that “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”) (emphasis added). In relevant part, the agreement states that 

it will last “[f]or so long as a member shall own an interest in the Company and for a further 

period of three (3) years from and after the date of redemption, sale or other disposition 

of the member’s interest in the Company . . . .” 

At the hearing, Mr. Elps’ attorney told the trial court the following:
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Your Honor, we understand that the temporary injunction requires -- it’s an 

evidentiary hearing obviously. So, you know, if they intend to put on 

evidence and if we get to that, we intend to put on evidence as well. 

But we have some objections both procedural and substantive to . . . the 

temporary injunction, because we think it’s a matter of law. . . . [A]s a matter 

of law, they can’t get a temporary injunction, so even if they put on evidence, 

they wouldn’t be able to solve this problem. . . .

[I]t’s our argument here that the non-compete agreement that’s sought to 

be enforced is indefinite. It will last as long as my client owns his stock, 

which is forever. They even in their pleadings [sic] they acknowledge that 

it’s unclear when that may or may not be. . . .

So we’re faced then with the situation where on its face, the non-competition 

agreement is . . . forever, so it’s unreasonable on its face. The only way to 

possibly enforce it would be to reform it. That can’t be done at this time; 

therefore, there is no need to put on any evidence in order to . . . try to 

reform it. . . . 

[T]hey simply put the cart before the horse, and . . . the reason I’m bringing 

this up and spending time on this is because I think that it would be a waste 

of the Court’s time to hear evidence when it’s just absolutely impossible as 

a matter of law to enforce it, in a temporary injunction hearing. If this is 

going to be done, it’s going to have to be done when we try this case. I 

think that’s what the case law, that’s what the statutes all . . . hold.

Mr. Elps’ attorney also objected to the request for a temporary injunction based on 

the fact that Mr. Elps’ current employer, Dresser-Rand Company, had not been made a 

party to the suit. See Bays v. Wright, 132 S.W.2d 144, 145 (Tex. Civ. App.—Waco 1939, 

no writ) (“All persons in whose favor or against whom there might be a recovery, however 

partial, and all persons who are so interested that their rights or duties might be affected 

by the decree, must be made parties in order that their rights may be adjudicated and 

finally determined, and all parties bound by a single decree.”).

Down Time’s attorney responded that to the extent that the agreement is indefinite 

in duration, the trial court is required to reform the agreement such that it is reasonable 

and enforceable. Down Time’s counsel told the trial court the following:
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I see that the statute clearly anticipates that we’re allowed to do that and 

the Court is allowed to do that. But what the Court can’t do is strike down 

a non-compete, because one party claims that the duration or the 

geographic region are too broad, the Court is required to -- it shall reform it 

to become reasonable. And we’re entitled -- we’re able to put on the 

evidence today to demonstrate that. And furthermore, we need to be able 

to -- we need to put on our evidence, nonetheless, in order to preserve our 

appeal.

Down Time’s attorney also argued that Mr. Elps’ current employer, Dresser-Rand 

Company, is not a necessary party to the suit. 

Mr. Elps’ attorney then conceded that the trial court had the ability to reform the 

agreement, but he argued that the court could not reform the agreement until the final 

hearing. According to Mr. Elps’ counsel, the trial court could not reform the agreement 

on Down Time’s application for a temporary injunction. Again, Mr. Elps’ attorney told the 

trial court that it was unnecessary for the court to hear additional evidence:

[I]t’s true that . . . there’s other aspects that they have to prove in addition 

to probable right of recovery, but they can’t get across the first threshold, 

which is probable right of recovery without changing the agreement, and the 

Court can’t change the agreement at this juncture. It has to wait until the 

end of the case.

The trial judge then recessed the hearing before Down Time could present any 

further evidence:

THE COURT: All right. The Court is going to take a recess on 

this hearing to go ahead and review everything 

that’s been submitted. And when I make my 

decision, I’ll let you know and we’ll go ahead and 

reset the hearing for any evidence that you both 

wish to present. But I agree, I need to make this 

decision first.

[Mr. Elps’ attorney]: Do you want us to hang around here?

THE COURT: No, no. If you’ll just make sure you leave your 

phone numbers with the court manager --
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[Mr. Elps’ attorney]: Okay.

THE COURT: -- then I’ll - - I’ll be able to call you and let you 

know.

[Down Time’s attorney]: All right. In regard, if it goes -- if we’re not going 

to have this hearing, we still need to be able to 

put on our evidence where we can create a bill 

of review.

THE COURT: All right. That’s fine.

[Down Time’s attorney]: Even if we do that, we can set that whenever it’s 

convenient for the Court.

THE COURT: Okay, wonderful. Thank you. Thank you so 

much.

The next day, August 20, 2013, Down Time filed a “brief on temporary injunctive 

relief” in which it asserted, inter alia, that it “has a legal right to present evidence in support 

of its application for temporary injunction, and the Court clearly has authority to determine 

the issues required to support a temporary injunction.” Down Time also argued in relevant 

part as follows:

Down Time is entitled to offer evidence of the goodwill and other business 

interests it seeks to protect, the geographical area which it seeks to protect 

from [Mr.] Elps’ competition, the reasonable duration in which protection is 

needed, and evidence regarding the need for an injunction prohibiting [Mr.] 

Elps from disclosing trade secrets and otherwise violating his fiduciary duty 

to Down Time as a member of the LLC and key person who held the position 

as Vice President of Operations.

Down Time’s brief concluded with the following prayer:

Down Time . . . prays that it be granted the right to a hearing and to present 

its evidence in support of its application for temporary injunctive relief and 

to all other and further relief to which it has or may hereafter show, deem, 

or allege itself entitled to receive.

On September 4, 2013, Down Time’s counsel sent the judge of the trial court a 

letter requesting an evidentiary hearing as follows:
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In this case, Down Time’s Application for Temporary Injunction came on for 

hearing on the morning of August 19, 2013. Before Down Time could 

present evidence to demonstrate its irreparable injury and right to relief, the 

Court recessed the hearing to consider authorities from the parties on 

whether Plaintiff was entitled to present evidence.

Plaintiff continues to suffer injury and is entitled to a hearing on its claim for 

injunctive relief. Accordingly, Plaintiff respectfully (and urgently) asks the 

Court to schedule a hearing so that Plaintiff may present its witnesses, and 

the Court, having heard the evidence, can render an order granting or 

denying Plaintiff’s prayer for injunctive relief. For the Court’s convenience, I 

am enclosing an Order Setting Hearing.

Thereafter, on September 10, 2013, the trial court entered an order denying Down 

Time’s application for a temporary injunction. Although the court stated that it would allow 

the parties to present evidence after it made its decision, the record indicates that after 

the trial court made its decision, Down Time did not make any further attempt to request 

an evidentiary hearing or to make an offer of proof. 

At Down Time’s request, the trial court entered findings of fact and conclusions of 

law. See TEX. R. CIV. P. 296. The court gave six basic reasons for its ruling, which we 

summarize as follows.

First, the trial court concluded that the non-compete agreement is unenforceable 

because its duration is not “definite.” See Marsh USA Inc. v. Cook, 354 S.W.3d 764, 777 

(Tex. 2011) (holding that “[t]he hallmark of enforcement is whether or not the covenant is 

reasonable” and stating that “the statute’s core inquiry is whether the covenant” contains 

reasonable limitations). The trial court found that the time limitation contained in the noncompete agreement was “three (3) years.” However, the trial court also found that the 

limitation “does not go into effect until after the member redeems, sells, or otherwise 

disposes of his interest in Down Time.” In addition, the trial court found that Down Time 

had conceded in its pleadings that “it is unclear when Mr. Elps’ . . . ownership interest will 
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conclude.” The trial court observed that Down Time’s regulations do “not contain any 

provisions that would provide for any acquired sale, redemption, or disposition of an 

interest in Down Time that would provide any limitation of time.” Based on the foregoing, 

the court concluded that the non-compete agreement has an “indefinite limitation of time” 

and therefore “is unenforceable as written.” See Gomez v. Zamora, 814 S.W.2d 114, 118 

(Tex. App.—Corpus Christi 1991, no writ) (“Indefinite descriptions of the area covered by 

a non-competition covenant render them unenforceable as written.”). 

Second, the trial court concluded that reformation is not available to Down Time 

because Down Time has not pled a request for reformation. See id. (“We have previously 

stated that the failure to request reformation in the trial court operates as a waiver of the 

right of reformation.”). 

Third, the trial court noted that Down Time does not seek enforcement of the noncompete agreement as written. According to the trial court, Down Time “has requested 

that [the] . . . court ‘enforce the noncompetition agreement for three years from the date 

on which [Mr.] Elps begins to actually comply . . . with this covenant not to compete.’” The 

trial court ruled that Down Time is not entitled to request relief that is narrower in scope 

than the non-compete agreement without reformation of the covenant. See id. at 119 

(“The fact that the temporary injunction entered by the trial court was geographically 

narrower in scope than the covenant not to compete is irrelevant since appellee failed to 

request reformation of the covenant in the trial court.”). 

Fourth, the trial court concluded that even if Down Time had requested it, 

“[r]eformation is not available in the temporary injunction phase of the case, as Section 

15.51 applies to final trials on the merits and final injunctions, and not temporary 
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injunctions.” See Gray Wireline Serv., Inc. v. Cavanna, 374 S.W.3d 464, 470 (Tex. App.—

Waco 2011, no pet.) (“[W]e agree that reformation pursuant to section 15.51(c) of the 

Business and Commerce Code is a remedy to be granted at a final hearing, whether on 

the merits or by summary judgment, not as interim relief.”); Cardinal Health Staffing 

Network, Inc. v. Bowen, 106 S.W.3d 230, 238–39 (Tex. App.—Houston [1st Dist.] 2003, 

no pet.) (en banc) (“Reformation is generally a final remedy.”).

Fifth, the trial court ruled that even if reformation were available during the 

temporary injunction phase of the case, the non-compete agreement would still be 

unenforceable because the “full extent” of the court’s “discretionary powers” would be to 

remove the limitation of time of “three (3) years,” which would still leave the duration of 

the agreement “indefinite.” 

Sixth, and finally, the trial court concluded that preliminary injunctive relief is not 

available for the additional reason that Mr. Elps’ employer, Dresser-Rand Company, has 

not been made a party to the proceeding. 

II. ISSUES ON APPEAL

Down Time now raises five issues on appeal in which it contends as follows: (1) 

“[t]he trial court erred in denying Down Time’s application for [a] temporary injunction 

based on any theories upon which the court denied the temporary injunction and on any 

theory argued by Mr. Elps”; (2) “[t]he trial court erred in denying the requested temporary 

injunction for any reason related to Chapter 15 of the Texas Business and Commerce 

Code”; (3) “[t]he trial court erred in denying the requested temporary injunction based on 

its conclusion that preliminary injunction relief is not available because Mr. Elps’ new 

employer has not been joined and has a justiciable interest”; (4) “[t]he trial court erred in 
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denying the requested temporary injunction based on its finding that Down Time’s 

Regulations do not contain provisions for ‘acquired redemption, sale, or disposition’ of Mr. 

Elps’ interest in Down Time”; and (5) “[t]he trial court erred in denying Down Time’s 

application for temporary injunction without affording Down Time the opportunity to 

present evidence on any of its several causes of action against Mr. Elps, or on Down 

Time’s probable right of recovery on the merits of each, or on Down Time’s probable 

irreparable injury prior to trial in the absence of a temporary injunction.”

III. ANALYSIS

The question presented in this appeal is whether the trial court erred in denying 

Down Time’s application for a temporary injunction.

A. Applicable Law

“A temporary injunction’s purpose is to preserve the status quo of the litigation’s 

subject matter pending a trial on the merits.” Butnaru v. Ford Motor Co., 84 S.W.3d 198, 

204 (Tex. 2002). “A temporary injunction is an extraordinary remedy and does not issue 

as a matter of right.” Id. “To obtain a temporary injunction, the applicant must plead and 

prove three specific elements: (1) a cause of action against the defendant; (2) a probable 

right to the relief sought; and (3) a probable, imminent, and irreparable injury in the 

interim.” Id. 

B. Standard of Review

“Whether to grant or deny a temporary injunction is within the trial court’s sound 

discretion.” Id. “A reviewing court should reverse an order granting [or denying 

temporary] injunctive relief only if the trial court abused that discretion.” Id. “The 

reviewing court must not substitute its judgment for the trial court’s judgment unless the 
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trial court’s action was so arbitrary that it exceeded the bounds of reasonable discretion.” 

Id. “[T]he trial court’s failure to properly apply the law to the undisputed facts is an abuse 

of discretion for which the judgment of the trial court may be reversed.” Dresser Indus., 

Inc. v. Forscan Corp., 641 S.W.2d 311, 317 (Tex. App.—Houston [14th Dist.] 1982, no 

writ); see also Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (“A trial court has no 

‘discretion’ in determining what the law is or applying the law to the facts. Thus, a clear 

failure by the trial court to analyze or apply the law correctly will constitute an abuse of 

discretion, and may result in appellate reversal by extraordinary writ.”). 

C. Discussion

As set forth above, the trial court’s findings and conclusions indicate that its denial 

of Down Time’s application for a temporary injunction was based on Down Time’s failure 

to establish a probable right to the relief sought. See Butnaru, 84 S.W.3d at 204. Our 

analysis therefore begins with this element. See id. 

Initially, we must address the threshold issue: in a suit to enforce a noncompetition 

agreement, is the defendant’s current employer a necessary party such that the absence 

of Dresser-Rand from the instant suit precluded Down Time from establishing a probable 

right to the relief sought? We begin by noting that in one unpublished opinion, the Fort 

Worth Court of Appeals held that the trial court did not err by failing to require the joinder 

of all necessary parties before issuing a temporary injunction. See Whittier Heights Maint. 

Ass’n v. Colleyville Home Owners’ Rights Ass’n, No. 02–10–00351–CV, 2011 WL 

2185699, at *4 (Tex. App.—Fort Worth June 2, 2011, no pet.) (mem. op.). The Beaumont 

Court of Appeals has taken a similar position. See Winslow v. Duval County Ranch Co., 

519 S.W.2d 217, 226 (Tex. Civ. App.—Beaumont 1975, writ ref’d n.r.e.) (“[W]e were not 
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impressed with defendants’ claim of non-joinder of necessary parties as a condition 

precedent to the issuance of the temporary injunction. In the ordinary case, such joinder 

is not required . . . .”). 

Yet, quite some time ago, the Texas Supreme Court held “that the refusal of a 

temporary injunction when there is an absence of necessary parties, who might readily 

be joined in the suit, cannot be deemed an abuse of discretion.” Scott v. Graham, 292 

S.W.2d 324, 325 (Tex. 1956). Likewise, the San Antonio Court of Appeals has explained 

that “parties [who] have contract rights, which would be affected by such an injunction, . . 

. are necessary parties without whose presence the injunction is unauthorized.” Bourland 

v. City of San Antonio, 347 S.W.2d 660, 661 (Tex. Civ. App.—San Antonio 1961, no writ); 

see also Davis v. Turner, 145 S.W.2d 258, 260 (Tex. Civ. App.—Galveston 1940, no writ) 

(reversing order granting temporary injunction because only four of forty-six officers were 

joined in suit). Finally, the Waco Court of Appeals issued a decision cited by Mr. Elps 

and the trial court in support of the proposition that Dresser-Rand is a necessary party 

whose absence from this suit precluded Down Time from establishing its entitlement to a 

temporary injunction. See Bays, 132 S.W.2d at 144. In Bays, the Waco Court of Appeals 

articulated the “well settled rule that in a suit of this kind to cancel a contract or to restrain 

the enforcement thereof, all parties to such contract are necessary parties to the suit.” Id. 

at 145. The court noted that a suit for temporary injunctive relief is “an equitable suit and 

the primary object of equity is to grant full relief and to adjust in one suit the rights and 

duties of all interested parties that grow out of or are connected with the subject matter of 

the suit.” Id. For this reason, the court held as follows:

All persons in whose favor or against whom there might be a recovery, 

however partial, and all persons who are so interested that their rights or 
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duties might be affected by the decree, must be made parties in order that 

their rights may be adjudicated and finally determined, and all parties bound 

by a single decree.

Id. 

With the foregoing in mind, we return to the pleadings. In its application for 

temporary injunction and original petition, Down Time provides the following description 

of the relief it seeks in this suit:

Down Time seeks a temporary, then permanent, injunction against Mr. Elps 

prohibiting his continued employment by Dresser-Rand, as well as 

employment with any other company that provides machining and 

mechanical services to industrial customers like those in the petrochemical, 

refining or power generation fields. This injunctive relief is requested to 

extend for three years from the date on which Mr. Elps actually begins to 

comply with the covenant not to compete he agreed to in the Purchase 

Option Agreement.

Clearly, Down Time seeks injunctive relief that would affect, and in fact, terminate, 

Dresser-Rand’s employment relationship with Mr. Elps. Although Down Time has not 

named Dresser-Rand as a party to this suit, the relief requested by Down Time, if it were 

granted, would have the direct effect of enjoining both Dresser-Rand and Mr. Elps from 

performing under their existing employment contract. Thus, in our view, Down Time has 

requested relief against both Dresser-Rand and Mr. Elps. Under these circumstances, 

we conclude that the trial court did not abuse its discretion in ruling that Dresser-Rand is 

a necessary party whose absence from the case precluded Down Time from establishing 

its entitlement to the preservation of the status quo pending final judgment. See id. 

Accordingly, we overrule Down Time’s third issue in which it contends that the trial court 

erred in denying its application for a temporary injunction based on the absence of 

Dresser-Rand from the suit. Furthermore, because “the refusal of a temporary injunction 

when there is an absence of necessary parties. . . cannot be deemed an abuse of 
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discretion,” Down Time cannot establish an abuse of discretion in connection with any of 

its other issues. Scott, 292 S.W.2d at 325.

Finally, we note that Down Time cannot establish an abuse of discretion for the 

additional reason that there is no evidence of “a probable, imminent, and irreparable injury 

in the interim,” which is a necessary element for a temporary injunction. Butnaru, 84 

S.W.3d at 204. We reject the assertion made by Down Time in its fifth issue that the trial 

court erred in ruling on its application for a temporary injunction without giving Down Time 

an opportunity to present evidence. As set forth above, the trial judge stated on the record 

that she would allow Down Time to make an offer of proof even after she made her 

decision. However, nothing in the record indicates that Down Time requested to make 

an offer of proof after the judge denied its application for a temporary injunction. Yet, at 

the hearing, Down Time’s attorney acknowledged that “we need to put on our evidence . 

. . in order to preserve our appeal.” See Langley v. Comm'n for Lawyer Discipline, 191 

S.W.3d 913, 915 (Tex. App.—Dallas 2006, no pet.) (“[A]ppellant made no bills of 

exceptions, formal or informal. No offer of proof was made of the excluded evidence in 

any form. The excluded evidence is not in the record. Thus, appellant waived his 

complaint by failing to properly preserve error.”). Given that there is no evidence of an 

irreparable injury, we cannot conclude that Down Time established its entitlement to a 

temporary injunction. See Butnaru, 84 S.W.3d at 204. Accordingly, we overrule Down 

Time’s remaining issues.
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IV. CONCLUSION

We affirm the trial court’s order.

NORA L. LONGORIA

Justice

Delivered and filed the

20th day of March, 2014.