NO. 07-06-0204-CV IN THE COUR

T OF APPEALS FOR THE SEVEN TH DISTRICT OF TEXAS

AT AMARILLO PANEL D SEPTEMBER 18, 2006

______________________________

PAMELA SMITH, Appellant
v. LIVINGSTON HEAR ING AID CEN TER, INC., Appellee

_________________________________ FROM THE CO UNTY COURT AT LAW NO. THREE OF LUBBOC K COUNTY;

NO. 2006-598,743; HON. PAUL A LANEHART, PRESIDING

_______________________________ Memorandum Opinion

_______________________________ Before QUINN, C.J., and REAVIS an d CAMPBELL, JJ. Pamela Smith (Smith)

appeals from a tempor ary inj unction entered i n favor of Living ston Hearing Aid Center, I nc. (Liv ingston). Via three is sues, she contends that the trial court abused i ts discreti on in 1) enter ing the decree becaus e the underly ing covenant not to compete w

as unen forceab le and 2) deny ing h er attorney ’s fees . We affirm.

Background After becoming an empl oyee with Livingston, Smith executed a contract containing the followin g covenant

.2

In further consi deration of the sum as set forth i n the attached Schedu le of Terms, during the period c ommencing on the Effecti ve Date and en ding thr ee (3) y ears after the termination of Employee’s employment with Employer

for any reas on, Employeeshall not ‘compete directly or indirectly w ith the b usiness of the Emplo yer’ except as Employer shall otherwise consent in wri ting or

except in furtherance ofEmployee’s duties hereunder. ‘Compete directly

or indirec

tly w ith the busines s of the Employer’ sha ll be deemed to include . . . engagi ng or hav ing a materi al interest, directly or indi rect ly, as owner, employee, officer, dir ector, partner, sales represen tative, stockholder, capital investor, le ssor, renderer of cons ultation serv ices or advic e, eit her alon e or in a ssoc iati on w ith othe rs, in t he op erat ion of a n y asp ectof any type of business or enterprise com petitive with the business or operation of the Empl oyer or an y of its affiliates, including, but not limite d to the hearing aid business, within t he geo grap hic area as s et forth in the attached Schedule of Terms. The Schedule of Terms a lluded to speci fied that Smith was to be compensated $3000 and tha t the g eogra phic b oundar ies me ntioned w ere “[a]ll counties in which Living ston Hearing Aid Center, I nc., o pera tes, inclu ding, but n ot lim ited to: L ubb ock Co unty, Texas, and co ntigu ous areas[,] Ec tor County , Texas, and co ntiguous ar eas[,] Potter County, Texas[,] Randall County, Tex as [and] Curr

y County , New M exico[.]” Smith worked for Living ston dispensin g hearing aids for a shor t while. However, she left its employ

and began working for a nother entity involved in similar

business. Li vingston discover ed this and sued to enforce the covenant. The relief s ought consisted of, among other things, a temporary

injunction. The latter was granted, and the trial court temporarily enjoi ned her

from engaging or

having a material interest, as owner, employee, of ficer, director, partner, sales representative, renderer of con sultation services or advice, in the testing of hearing, or in the sale or service of hearing aids o r hear ing devices, within the city of Lubbock and a dist ance of se venty- five (75) miles from the city of Lubbock, and wi thin Scurry County, Tex

as. From that order , Smith appealed.3

Issue One Smith initiall y contends t hat the trial court abused i ts discreti on in granti ng the preli minaryrelief because t he underlyi ng covenant not to compete was “clea rl y unenforce able.” In effort to expl ain why it was unenforceable, she pos its that it ha d t o “meetcertain stat ut o ry req uirements” ex pressed in §15. 50 of the Texas Busi ness and Commerce Code. It did not, she continued , because 1) “there is no ‘otherwise enforcea ble agreement’ to which the covenant . . . is incl uded,” 2) “the covenant . . . is not ‘ancill ary to’ th e agreement,” and 3) “no cons ideration w as given ‘at the time’ the agreement wa s made.” Given the tenor of her arguments, one readily sees that

Smith asks usto resolve, via an appeal f ro m an order gr anting a tempor

ary inj unction, the ult imate questio n of whether the covenant is enforceable und er §15.50. Yet, that is not something we can do via the procedure inv

olved for the merits of the case ar e not implicate d when one peti tions for a temporary injunction. Reach Group L.L.C. v. Angelina Gr oup , 173 S.W.3d 834, 837 (Tex. App.–Houston [14 th Dist.] 2005, n o pet.) (stat ing that at a temporary i njunction hearing the ultimate mer its of the case ar e not at issue); Tom James of Dallas, Inc. v. Cobb , 109 S.W .3d 8 77, 8 82-8 3 (Te x. App.–Dallas 2003, no pet.) ( stating that “any appeal of an order granting or denying a temporaryinjunction ba sed on a coven ant not to compete does not present for appe llate review the ultimate question of whether the covenant is enforceab le under

section 15.50 of the business and commer ce code”); accord Loye v. Travelhos t, Inc., 1 56 S.W.3d 615, 620 (Tex. App.–Dall as 2004, no pet.) (declining to add ress, via an appeal from an order g ranting a temporary i njunction, the v alidity of the covenant

notto compete). In other words, at a temp orary injunction hearing, the trial court is to ass ess whether the applicant has a proba ble right to the relief sought and fa ce s a probable risk of im minent and irr eparable injur

y if preli minary re lief is not g ranted. Tom4

James of Dallas, Inc. v. Cobb , 109 S.W.3d at 882. The trial court is not to resolve the ultimate merits of the cont roversy
. Reach Gr o up L.L.C. v. Angelina Group, 173 S.W.3d at837; TomJames

of Dallas, Inc. v. Cobb , 109 S.W.3d at 882. So, if the tria l court cannot
use the interim proce dure to resolve the merits of the unde rlying claim, neither can the review ing court. Tom Jam es of Dallas , Inc. v. Cobb, 109 S.W.3d at 882-83. In sum, by arg uing that the covenant at bar fails to comport w ith §15.50 of the Business and Commerce Code, Smith posits a content io n which we cannot permissibly
reso lve via an appeal from an orde r granti ng a temporary injunction. Tom James of Dallas, Inc. v. Cobb, supra ; Reach Group L.L.C. v. Angelina Group, supra . Its resolution must awaitthe entry of a final judgment on themerits. Loye v. Travelhost, Inc. , 156 S.W.3d at 620. Consequently , her first i ssue is overruled. Issue Two Throu gh her second is sue, Smith addresses the scope of relief g ranted by the tri al court. That is, she pos es the questi on of “whether the limitati ons to time, g eograph i cal area, and scope of activity [contained in the covenant] are reasonabl e and do not impose
a greater restraint than is necessary to protect the goodw ill or othe r business i nterest of the employer.”As po sed, the a rgum ent a gain p rese nts u s wi th th e task of assessi ng the validity of the covenant and the merits of the s uit. And, for the same reasons expressed under issue one, that task is not one that we can permissi bly assume. Again, all must remember that in granting a temp ora ry inj unction, the trial court simplyattempts to maintain th e status quo until the cause can be tried on its merits. Butnaru v. Ford Motor C o. , 84 S.W.3d 198, 204 (Tex. 2002). Left for another day is the matter of whe ther t he cla ims underlyi ng the suit have merit. So, in granting a temporary1 Evi denc e app ear s of rec ord i ndi cat in g t hatScur ry County li es wi th in 90 mi le s of Lubb ock. 5 injunction, the trial courtat bar was not declarin g that the cov enant at issue w

as valid. It simply so ught to maintai n the status q uo. Y et, we do note th at the relief or dered was n ot that expr essed in the con trac t between Smith and Liv ingston. Thr ough the latter , Smith pu rported to refrain from
co mpeting in “[a]ll counties in w hich Livi ngston Hear ing Aid C enter, Inc., op erates , includin g, but not limited to: Lubbo ck County, Texas, and contiguous area s[,] Ecto r Coun ty, Texas, and cont iguou s are as[, ] Pot ter Co unty, Texas[,] Randall County, Texas [and] Curry Coun ty, New

Mexico[ .]” Moreover, the tria l court enjoi ned her from competing “withi n the city of Lubbock and a dista nce of seventy-five (75) mil es from the city of Lubboc k, and within Scurry

County, Tex

as.” We take judicial not ice of the fact that a 7 5-mil e radius around the City

of Lubbock may encompass counties t hat are not “contiguou s” wit h that city. Nonetheles s, evidence appears of record suggesting that the area within which Living ston marketed its services compri sed “about 90 miles” around Lu bbock. Furthermore, Smith testified t hat she treated pat ients who resided w ithin 75 miles f rom Lubbock. So, one could r easonably deduce that the company operated within that90-mile range as rep resented by Living ston. 1 Additionall y, the statu s quo exi stent between the parties before Smith allegedly breached the covenantencompassed the r equirement that she not compete wi thin the territor y wher ein Livi ngston operated. There being evidence thatsuch territory equated to a 90-mile perimeter around Lubbo ck, we rejec t her contentio n thatthe trial court somehow abused its dis cretion to her detri ment by simpl y restr aining her from competing w ithin a 75-mil e radius. See In re Sanders , 159 S.W.3d 797, 80 0 (Tex

. Ap p.–Amari llo 2005, no pet.) ( holding that a trial cour t abuses its d iscretion w hen its6

decision fails to comport wit h co ntrolling guidelines or principles or lacks evidentiary support). Issue Three The third issue raised by Smith involves her recovery of attorney’s fees. Furthermore, it is founded upon t he proposition that the coven ant, or aspects of

it, was , or were, invalid or otherw ise unenforceable. Because we hav e not so held , the issue is premature and, ther

efore, overruled. We feel confiden t in the trial court’s understanding of the interlocu tory natur e of the relief granted and the need to addr ess the ultimate merits of the d ispute via a timely trial. With this in mind, we affirm t he order gr anting the tempor

ary inj unction.

Brian Quinn Chief Justice