### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-03-00060-CV

Alex Sheshunoff Management Services, L.P./Kenneth

Johnson and Strunk & Associates, L.P., Appellants

v.

Kenneth Johnson and Strunk & Associates, L.P./Alex

Sheshunoff Management Services, L.P., Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT

NO. GN201863, HONORABLE PAUL DAVIS, JUDGE PRESIDING

O P I N I O N

In this summ ary judgment case, we must determine whether a covenant not to

compete agreement entered into a few months after an employee is promoted to a new position is

enforceable as a matter of law. Alex Sheshunoff Management Services, L.P. (“ASM”) appeals from

a summary judgment granted in favor of its former employee, Kenneth Johnson, and Johnson’s new

employer, Strunk & Associates, L.P. (“Strunk”). ASM brought suit against Johnson to enforce the

covenant not to compete, which the district court found on summary judgment to be unenforceable.2

Strunk brings a cross-appeal from a summary judgment granted in favor of ASM, denying Strunk’s

request for attorney’s fees. For the reasons that follow, we affirm the judgment of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

In 1993, Johnson became an employee of ASM, which provides consulting services

to financial institutions. He worked in various capacities over the next few years. At some point in

1996, the director of human resources asked him to sign an employment agreement containing a

covenant not to compete, which he declined to do. On September 1, 1997, Johnson was promoted

to Director of Affiliation, overseeing a program to develop and maintain relationships with financial

institutions. In January 1998, he was again asked to sign an employment agreement containing a

covenant not to compete. This time, after Johnson was told that he had no choice as a member of

senior management, he signed the agree ment, to be effective January 1, 1998. The agreement

contained a covenant not to compete, under which, in return for ASM’s promise to provide training

and access to confidential information, Johnson agreed while employed for ASM and for one year

thereafter not to “solicit or aid any other party in soliciting any affiliation member or previously

identified prospective client or affiliation member.”

In January 2002, ASM began to market a new overdraft protection product to banks.

Contemporaneously, Johnson received a job offer in a telephone call from William Strunk of Strunk

& Associates, which also sells overdraft protection products to banks. Johnson and Strunk

negotiated the terms of the job over several weeks, during which Johnson had access to confidential1 ASM, however, does not allege facts concerning or assert a cause of action for

misappropriation of trade secrets.

3 information about ASM’s new business. 1 On March 6, Johnson gave notice to ASM that he was

leaving the company. On March 23, he told Gabrielle Sheshunoff, the CEO of ASM, that he was

going to work for Strunk. Johnson was then sent home with pay. He resigned from ASM on April

9 and began working for Strunk on April 22.

In late Marc h through May, ASM and Strunk exchanged correspondence about

Johnson’s employment agreement with ASM. ASM sent a letter and copy of the employment

agreement to Strunk on March 27, asking Johnson to honor its terms. On April 9, Johnson’s attorney

replied by letter that “Mr. Johnson has engaged and will engage in no misconduct that would violate

any duties to ASM.” Some time in May, Johnson and William Strunk, the CEO of Strunk, had lunch

with the president

of a bank that was an ASM affiliation member. ASM’s attorney then asked

Johnson’s attorney if Johnson intended to honor the terms of the employment agreement.

On June 4, two days before Johnson was to make a presentation for Strunk to the

California Bankers Association, Johnson’s attorney informed ASM’s attorney that Johnson “would

be contending” that the employment agreement was unen forceable. On June 5, ASM filed suit,

seeking a temporary restraining order (TRO) to preclude Johnson from making the presentation, and

temporary and permanent injunctions to enforce the agreement. The district court signed the TRO

on the same day. Strunk intervened on June 6, seeking a declaratory judgment that the covenant not

to compete was invalid. After a hearing on ASM’s application for temporary injunction, the district4

court issued the temporary injunction on June 17. The district court later set ASM’s application for

permanent injunction for trial on January 13, 2003.

Meanwhile, Strunk and Johnson filed motions for summary judgment on the ground

that the covenant not to compete is unenforceable as a matter of law. The district court granted the

motions, ordering that ASM take nothing by its suit and dissolving the temporary injunction. Strunk

amended its plea in intervention, seeking to recover its attorney’s fees and Johnson’s attorney’s fees

by assignment. ASM then filed a motion for summary judgment on the ground that Strunk was not

entitled to any attorney ’s fees. ASM also sought to exclude evidence of attorney’s fees because

Strunk did not timely designate its attorney’s fees experts. The district court held a hearing on

ASM’s motion on January 8, 2003, orally granting summary judgment in favor of ASM. The next

day, Strunk filed a motion for leave to file a further affidavit concerning Johnson’s attorney’s fees.

On January 10, the district court, in its final judgment, ordered that Strunk and Johnson take nothing

on their request fo r attorney’s fees. On January 30, the district court denied Strunk’s motion for

leave to file a further affidavit.

ASM appeals on the grou nd that the district court erred in granting summary

judgment in favor of Strunk and Johnson concerning the covenant not to compete. Strunk and

Johnson brin g a cross-appeal on the grounds that the district court erred in granting summary

judg ment in favor of ASM concerning Strunk’s request for attorney’s fees and, if the amount of

attorney’s fees is necessary to create a fact issue, the district court further erred in denying Strunk’s

motion to supplement the summary judgment record.5 ANALYSIS

Standard of Review

Because Strunk filed a traditional motio n for summary judgment and Johnson and

ASM filed motions on both traditional and no-evidence grounds, both standards of review are

relevant.

Traditional Motion for Summary Judgment

The standards for review of a traditional summary judgment are well established: the

movant must show that there is no genuine issue of material fact and that it is entitled to judgment

as a matter of law; in deciding whether there is a disputed material fact issue precluding summary

judgment, the court must take evidence favorable to the nonmovant as true; and the court must

indulge every reasonable inference in favor of the nonmovant and resolve any doubts in the

nonmovant’s favor. See Tex. R. Civ. P. 166a(c); Pustejovsky v. Rapid-Am. Corp.

, 35 S.W.3d 643,

645-46 (Tex. 2000); Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-49 (Tex. 1985).

No-Evidence Motion for Summary Judgment

A party seeking a no-evidence summary judgment must assert that no evidence exists

as to one or more of the essential elements of the nonmovant’s claims on which it would have the

burden of proof at trial. H olmstrom v. Lee

, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.).

Once the movant specifies the elements on which there is no evidence, the burden shifts to the

nonmovant to raise a fact issue on the challenged elements . Tex. R. Civ. P. 166a(i). To raise a

genuine issue of material fact, the nonmovant must set forth more than a scintilla of probative6

evidence as to an essential element of the nonmovant’s claim on which the nonmovant would have

the burden of proof at trial. S ee id. ; Merrell Dow Pharms., Inc. v. Hav ner , 953 S.W.2d 706, 711

(Tex. 1997). If the evidence supporting a finding rises to a level that would enable reasonable,

fair-minded person s to differ in their conclusions, then more than a scintilla of evidence exists.

Havner

, 953 S.W.2d at 711. Less than a scintilla of evidence exists when the evidence is “so weak

as to do no more than create a mere surmise or suspicion” of fact, and the legal effect is that there

is no evidence. J

ackson v. Fiesta Mart

, 979 S.W.2d 68, 70 (Tex. App .—Austin 1998, no pet.)

(quoting Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983)). If the nonmovant fails to

present evidence raising a genuine issue of material fact as to the challenged element, the trial court

must grant the motion. Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a

directed verdict granted before trial, to which we apply a legal sufficiency standar d of review.

Jackson , 979 S.W.2d at 70.

The district court did not state the basis for its decision in either of its orders granting

summary judgment. When we review a summary judgment in which the trial court did not state the

basis for its dec i sion in its order, the appealing party must show that it is error to base summary

judgment on any ground asserted in the motion. Star-Telegram, Inc. v. Doe

, 915 S.W.2d 471, 473

(Tex. 1995). We must affirm the summary judgment if any one of the movant’s theories has merit.

Id . Because the propriety of a summary judgment is a question of law, we review the trial court’s

decision de novo

. See Natividad v. Alexsis, Inc. , 875 S.W.2d 695, 699 (Tex. 1994).2 Because Strunk and Johnson raised similar issues in their motions for summary judgment,

for convenience we will refer to these parties collectively as St runk for the purposes of ASM’s

appeal.

7 ASM’s Appeal

In its sole issue, ASM contends that the district court erred in granting summary

judgment in favor of Strunk and Johnson. 2 By granting summary judgment, the district court

declared that the covenant not to compete is unenforceable as a matter of law.

Construing Texas law in the arena of covenants not to compete, we are mindful that

we do not write on a clean slate. A covenant not to compete is a disfavored contract in restraint of

trade and is unenforceable unless it meets certain statutory requirement s. See Tex. Bus. & Com.

Code Ann. §§ 15.05, .50 (West 2002); Miller Paper Co. v. Roberts Paper Co.

, 901 S.W.2d 593, 599

(Te x. App.—Amarillo 1995, no writ) (citing T ravel Masters, Inc. v. Star Tours, Inc.

, 827 S.W.2d

830, 832 (Tex. 1991)). The enforceability of a covenant not to compete is a question of law. L ight

v. Centel Cellular Co. of Tex. , 883 S.W.2d 642, 644 (Tex. 1994).

The parties agree that the prima ry purpose of the employment agreement was to

obligate Johnson to render personal services. When a covenant not to compete is part of such a

contract, the employer has the burden to prove that the covenant not to compete meets the statutory

criteria. See Tex. Bus. & Com. Code Ann. § 15.51(b) (West 2002).

The version of section 15.50 of the business and commerce code in effect at the time

the parties entered into the agreement provided:

[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 contains3 Before statutory criteria for the enforceability of covenants not to compete were set forth

in 1989, at least one court had allowed continued employme n t to be sufficient consideration to

support an employment agreement. S ee Currie v. International Telecharge, Inc.

, 722 S.W.2d 471,

474-75 (Tex. App.—Dallas 1986, no writ) (in appeal of temporary injunction proceeding, court held

that trial court did not abuse its discretion in finding agreement supported by consideration of

continued employment).

8 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.

Act of May 29, 1993, 73d Leg., R.S., ch. 965, § 1, 1993 Tex. Gen. Laws 4201, 4201 (amended 1999

& 2001) (current version at Tex. Bus. & Com. Code Ann. § 15.50(a) (West 2002)). The “otherwise

enforceable agreement” must, like any contract, be supported by consideration. “Consideration is

a present exchange bargain ed for in return for a promise. It consists of either a benefit to the

promisor or a detriment to the promisee.” R oark v. Stallworth Oil & Gas, Inc.

, 813 S.W.2d 492, 496

(Tex. 1991) (internal citations omitted).

We must first determine then whether the parties entered into an otherwise

enforceable agreement by exchanging binding promises. The parties agree that they entered into an

at-will employment agreement. Standing alone, an at-will employment relationship does not

constitute an oth e rwise enforceable agreement because it is “illusory,” meaning not binding on either

the employee or the employer. See Light

, 883 S.W.2d at 645; Martin v. Credit Prot. Ass’n

, 793

S.W.2d 667, 669 (Tex. 1990). The agreement may be enforceable, though, if the contract contains

independent consideration that is not dependent upon the illusor y promise of continued employment.

Light , 883 S.W.2d at 645. 39 ASM and Johnson ent ered into the employment agreement in January 1998, four

months after Johnson was promoted to the Director of Affiliation position. The agreement provided,

in pertinent part:

5. PROTECTION OF EMPLOYER’S CONFIDENTIAL INFORMATION

(a) To assist Employee in the performance of his/her duties, Employer agrees

to provide to Employee, special training regar ding Employer’s business

methods and access to ce rtain confidential and proprietary information

. . . .

* * *

(c) Employee agrees to keep the Confi dential Information, and all

documentation, access and information thereto, strictly confidential.

* * *

(d) The terms and conditions of this Paragraph 5 shall survive the termination

of Employee’s employment with Employer.

The covenant not to compete contained within the employment agreement provided, in pertinent

part:

(a) In consideration of the traini ng and access to Confidential Information

provided by Employ er, and so as to enforce Employee’s agreement

regarding such Confidential Information contained in paragraph 5 above,

Employee agrees that while employed by Employer, and for a period of

one (1) year following termination of Employee’s employment for any

reason, Employee will not

* * *

(ii) solicit or aid any other party in soliciting a ny affiliation member or

previously identified prospective client or affiliation member . . . .10 In the agreement, Johnson made a number of non-illusory promises to ASM, which

included:

1. To give at least two weeks’ notice before terminating his employment;

2. To return all confidential information on termination of employment;

3. For one year after his termination, not to solicit or aid anyone else in soliciting

any ASM affiliation member or prospective ASM client or affiliation member;

and

4. Upon termination, to keep the confidentiality of ASM confidential information,

including proposals, employee lists, customer lists, marketing strategies, and

financial information.

ASM also made the non-illusory promise to give Johnson at least two weeks’ notice if it terminated

the employment agreement for any reason other than Johnson’s misconduct.

At the heart of the parties’ dispute i s whether ASM’s promise to provide special

tr aining and access to confidential information was illusory. Under section 15.50, the relevant

inquiry is whether ASM’s promise was binding at the time that the agreement was made. S ee Tex.

Bus. & Com. Code § 15.50(a); CRC-Evans Pipeline Int’l, Inc. v. Myers

, 927 S.W.2d 259, 263 (Tex.

App.—Houston [1st Dist.] 1996, no writ); see also Light

, 883 S.W.2d at 644-45. ASM urges that

because the confidential databases to which Johnson had access changed daily, the information that

Johnson received after signing the agreement was different than before he signed the agreement, thus

constituting valid consideration. ASM further argues that its promise to give Johnson at least two

weeks’ notice before termination would give Johnson the right to receive confidential information11

duri ng the notice period. Strunk counters that Johnson already had access to confidential

information by virtue of his promotion to Direct or of Affiliation—he received nothing new at the

time of signing the agreement and the type or quality of the confidential information that he received

subsequent to entering into the agreement did not change. Furthermore, Strunk argues, ASM was

not bound by its promise to provide confidential information because it could have fired Johnson at

any time after the parties signed the agreement and because Johnson only had a right to confidential

information to “assist in

. . . the performance of his . . . duties,” which was entirely in ASM’s

discretion.

Gabrielle S heshunoff, the CEO of ASM, testified that when Johnson became Director

of Affiliation in September 1997, he had access to certain confidential information and training that

he did not have access to before his promotion:

[ATTORNEY]: If I understand your testimony correctly , these classes of

confidential information and specialized training that Ken

John son was given by ASM as a result of his position as

director of Affiliation, he began receiving those classes of

information and training in September of 1997?

MS. SHESHUNOFF: When he became director of Affiliation.

[ATTORNEY]: Is that a yes answer to my question?

MS. SHESHUNOFF: If September is the actual date that he became director of

Affiliation, that is correct.

When asked about what Johnson received after signing the agreement, she testi fied about the

o v erdraft protection product, being developed in late 2001 and early 2002, and also described

training that Johnson received:12

[ATTORNEY]: Can you ident i fy for me any classes of information or

specialized training that wou ld have been given to Ken

Johnson after January of 1998–which cla sses he had not

already been provided prior to that?

MS. SHESHUNOFF: I th ink I answered that before when I said he had gone off

to Disn ey and he’d gone to various trade shows. Prior to

that he might not have been sent to.

Under section 15. 50, the time relevant to this determination “is the m oment the

agreement is made ; the issue is whether, ‘at the time the agreement is made, ’ there exists other

mutually binding promise s to which the covenant not to compete is ancillary or part and parcel.”

Myers

, 927 S.W.2d at 263; see Light

, 883 S.W.2d at 644-45. The fact that ASM gave new

confidential information and training to Johnson some time after entering in to the agreement will

not suffice; we must evaluate the considerat ion given at the time the agreement was made. S ee

Olander v. Compass Bank

, 172 F. Sup p. 2d 846, 854 (S.D. Tex. 2001). When we evaluate the

agreement at the time it was made, ASM’s provi sion of confidential information and training to

Johnson before signing the agreement will not support its promises in the agreement. R oark

, 813

S.W.2d at 496 (“Consideration is a present exchange barg ained for in return for a promise.”)

(emphasis added); see also Jordan Leibman & Richard Nathan, T he Enforceability of

Post-employment Noncompetition Agreements Formed After At-will Employment Has Commenced:

the “Afterthought” Agreement

, 60 S. Cal. L. Rev. 1465, 1528-29 (1987) (“If anything in the classical

law of contracts is clear, it is that past consideration is not good consideration. Any exchange has

to be contemporaneous by definition, b ecause the promise and the consideration for that promise

must serve as reciprocal conventional inducements.”).13 ASM relies heavily on footnote 14 in Light for sup port of its proposition that its

promise to give Johnson access to confidential information and training in the future was sufficient

consideration to constitute an otherwise enforceable agreement. Footnote 14 states in pertinent part:

“if an employer g ives an employee confidential and proprietary information or trade secrets in

exchange for the employee’s promise not to disclose them, and the parties enter into a covenant not

to compete, the covenant is anci llary to an otherwise enforceable agreement.” L ight

, 883 S.W.2d

at 647 n.14 (emphasis added). Under L ight

, a promise to give confiden tial information is not

sufficient. The employer must actually give the confidential information in return for the employee’s

promise not to disclose it.

ASM cites two other cases for further support that a promise to provide information

is sufficient. The facts of these cases are distinguishable from the facts of the instant case. In C urtis

v. Ziff Energy Group, Ltd.

, the empl oyee entered into the employment contract upon entering

employment, not a few months after acceptin g a promotion. 12 S.W.3d 114, 116 (Tex.

App.—Houston [14th Dist.] 1999, no pet.). The court found that the employer’s promise to provide

confidential information in return for the employee’s promise of nondisclosure was non-illusory and

sufficient consideration, and nothing in the opinion shows that Curtis challenged this point. Id. at

118. He instead challenged the geographic restrictions of the covenant not to compete. I d. at 119.

Likewise, the court in Ireland v. Franklin upheld a covenant not to compete premised on the

employer sharing “listed trade secrets” in the contract with the employee at the time she entered into

the agreement. 950 S.W.2d 155, 158 (Tex. App.—San Antonio 1997, no writ).14 Here, the record contains no evidence of new confidential informatio n or training that

Johnson received at the time he entered into the employment agreement, months after accepting the

new position. Nor does it show any change in the type or quality of information and training that

Johnson received immediately after signing the agreement. Were we to hold that any daily change

in the confidential customer database was sufficient new consideration to support the employment

agreement, we would do nothing for future litigants to illuminate the already murky question of what

constitutes sufficient consideration in an employment contract. ASM’s promise to give Johnson

access to training and confidential information in the future was illusory because ASM could have

fired Johnson immediately after he signed the agreement and escaped its obligation to perform.

ASM’s argument—that Johnson, if terminated, could enforce his right to confidential information

during the requisite notice period before termination—is without merit. It is difficult to believe that

ASM would have given Johnson access to new confidential information in the interim, in light of

the fact that Johnson’s access to confidential information was conditioned on assisting him in the

performance of his duties and Johnson was sent home with pay after ASM learned that he was

leaving the company to work for Strunk. There is simply no support in the record for this bald

assertion.

Thus, ASM’s acceptan ce of Johnson’s promise to maintain confidentiality by later

providing confidential i nformation created a unilateral contract but not an otherwise enforceable

agreement at the time the agreement was made. S ee Light

, 883 S.W.2d at 645 n.6; Anderson Chem.

Co. v. Green

, 66 S.W.3d 434, 438 (Tex. App.—Amarillo 2001, no pet.). Given that Johnson already

had access to confidential information and training before entering into the agreement, and that there15

is no evidence that ASM provided anything new at the time of signing, the only non-illusory promise

that causes this to be an otherwise enforceable agreement at the time the agreement was made is

ASM’s promise to give Johnson notice before termination for anything other than misconduct.

Having determined that an otherwise enforceable agreement exists, we must now

determine whether the covenant not t o compete is “ancillary to or a part of” that agreement at the

time the agreement is made. Tex. Bus. & Com. Code Ann. § 15.50(a); L ight

, 883 S.W.2d at 646-47.

To meet this requirement:

(1) the consideration given by the employer in the otherwise enforceable agreement

must give rise to the employer’s interest in restraining the employee from

competing; and

(2) the covenant must be designed to enforce the employee’s consideration or return

promise in the otherwise enforceable agreement.

Light

, 883 S.W.2d at 647. ASM’s non-illusory promise to give at least two weeks’ notice before

terminating Johnson does not give rise to its interest in restraining Johnson from competing. S ee id.

at 647 n.15 (holding that promise to give notice does not give rise to em ployer’s interest in

restraining employee from comp eting); S trickland v. Medtronic, Inc.

, 97 S.W.3d 835, 839 (Tex.

App.—Dallas 2003, pet. filed) (same); Donahue v. Bowles, Troy, Donahue, Johnson, Inc. , 949

S.W.2d 746, 752 (Tex. App.—Dallas 1997, writ denied) (same). We thus conclude that the covenant

not to compete is not ancill ary to or part of an otherwise enforceable agreement. Because ASM

failed to carry its burden to prove that the covenant not to compete meets the statutory criteria, see

Tex. Bus. & Com. Code Ann. § 15.51(b), we overrule ASM’s issue and uphold the district court’s

grant of summary judgment in favor of Strunk and Johnson.16

Strunk’s Cross-Appeal

Stru nk brings a cross-appeal by two issues, primarily contending that the district court

erred in granting summary judgment in favor of ASM concerning Strunk’s request for attorney’s fees

for both itself and Johnson, by assignment. Strunk further contends in a secondary issue that if the

amount of Johnson’s attorney’s fees is needed to create a fact issue, the district court further erred

in denying Strunk’s motion to supplement the summary judgment record with evidence of attorney’s

fees.

Strunk, as intervenor in ASM’s suit against Johnson, requested its own fees in a

declaratory judgment action, by which a court may award attorney’s fees as are equitable and just.

Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 1997). ASM argues that Strunk is not entitled

to attorney’s fees because it improperly seeks no relief independent of ASM’s cause of action. We

agree. ASM contended in its petition that Johnson had violated the covenant not to compete and

sought temporary and permanent injunctions enforcing its terms. Strunk sought declaratory relief

that Johnson had not violated the covenant not to compete and that the covenant not to compete was

invalid. “The Declaratory Judgments Act is ‘not available to settle disputes already pending before

a court.’” BHP Petroleum Co. v. Millard , 800 S.W.2d 838, 841 (Tex. 1990) (quoting Heritage Life

Ins. Co. v. Heritage Group Holding Corp. , 751 S.W.2d 229, 235 (Tex. App.—Dallas 1988, writ

denied)). Because the issues Strunk sought to have declared were pending before the trial court in

ASM’s causes of action, Strunk’s request for attorney’s fees by way of a declaratory judgment action

was inappropriate.17 Strunk also sought Johnson’s attorney’s fees, under section 15.51 of the business and

commerce code. Tex. Bus. & Com. Code Ann. § 15.51(c) (West 2002). Under this provision, a

court may award costs to a n employee who has entered into a covenant not to compete if the

following conditions are satisfied:

(a) the employer knew that the limitations in the agreement were unreasonable at

the time of execution;

(b) the limitations were unreasonable; and

(c) the employer sought to enforce the agreement to a greater extent than necessary.

See id. Strunk argues that because ASM knew that Johnson did not sign the employment agreement

until after becoming the Director of Affiliation, “it is reasonable to infer that ASM has always known

that its after-the-fact non-compete was unreasonable in all r espects.” But Strunk directs us to no

evidence of knowledge on ASM’s part that any limitations were unreasonabl e at the time that the

parties entered into the agreement, and we find none. Because Strunk presented no evidence of an

element to recover attorney’s fees on behalf of Johnson under section 15.51 of the business and

commerce code an d because Strunk’s request for attorney’s fees for itself by way of a declaratory

judgment action was inappropriate, we overrule Strunk ’s first issue and affirm the district court’s

grant of summary judgment in favor of ASM.

In its second issue, Strunk contends that the dis trict court abused its discretion in

denying Strunk’s motion for leave to file a further affidavit concer ning Johnson’s attorney’s fees.

The district court’s docket shee t shows that the trial judge granted summary judgment in favor of

ASM at the January 8, 2003 hearing on the motion. On January 9, Strunk filed its motion for leave18

to supplement the summary judgment record. On January 10, the district court, in its final judgment,

ordered that Strunk and Johnson take nothing on their request for attorney’s fees. Then, on January

30, the district court denied Strunk’s motion for leave to file a further affidavit, stating in a letter to

the parties that the “ruling on the motion for summary judgment was announced by the Court at the

conclusion of the hearing that occurred on January 8, 2003.”

Rule 166a(c) states that, except on leave of court, the nonmovant may file affidavits

not later than seven days before the day of the summary judgment hearing. Tex. R. Civ. P. 166a(c).

It is entirely within the trial court’s discretion to allow late filing of opposing proof. B ell v. Moores

,

832 S.W.2d 749, 755 (Tex. App.—Houston [14 th Dist.] 1992, writ denied). It is not an abuse of

discretion for the trial court to refuse to consider untimely affidavits opposing a motion for summary

judgment. S ee Karen Corp. v. Burlington N. & Santa Fe Ry. Co.

, 10 7 S.W.3d 118, 124 (Tex.

App.—Fort Worth 2003, pet. denied); Sullivan v. Bickel & Brewer

, 943 S.W.2d 477, 486 (Tex.

App.—Dallas 1995, writ denied); B ell

, 832 S.W.2d at 755. We hold that Strunk has failed to

establish that the district court abused its discretion in denying Strunk’s late request to supplement

the summary judgment record. We overrule Strunk’s second issue.

CONCLUSION

In ASM’s e mployment agreement with Johnson, entered into four months after

Johnson was promoted to a new position, ASM made a promise to give Johnson special training and

access to confidential information to assist him in the performance of his duties. Because Johnson

already had access to special training and confidential information by virtue of his promotion and

because ASM could escape its obligation to perform by firing Johnson immediately after he entered19

into the agreement, ASM’s promise was illusory. ASM’s only non-illusory promise, independent

of continued employment, was to give Johnson notice of termination. Because this promise does

not give rise to ASM’s interest in restraining Johnson from competing, L ight

, 883 S.W.2d at 647

n.15, the covenant not to compete in the employment agreement is not “ancillary to or part of an

otherwise enforceable agreement” and is therefore unenforceable, Tex. Bus. & Com. Code Ann.

§ 15.50(a). ASM therefore failed to carry its burden to prove that the covenant not to compete in its

personal services employment agreement with Johnson met the statutory criteria of section 15.50(a)

of the business and commerce code. Accordingly, we overrule ASM’s issue and affirm the district

court’s grant of summary judgment in favor of Strunk that the covenant not t o compete is

unenforceable as a matter of law.

In Strunk’s cross-appeal, because Strunk presented no evidence of an element to

recover attorney’s fees on behalf of Johnson under section 15.51 of the business and commerce code

and because Strunk’s request for attorney’s fees for itself by way of a declaratory judgment action

was inappropriate, we affirm the grant of summary judgment in favor of ASM on Strunk’s request

for attorney’s fees on behalf of itself and Johnson.

Jan P. Patterson, Justice

Before Chief Justice Law, Justices B. A. Smith and Patterson

Affirmed

Filed: October 2, 2003