In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-20-00225-CV

___________________________

On Appeal from the 67th District Court

Tarrant County, Texas

Trial Court No. 067-316824-20

Before Sudderth, C.J.; Bassel and Wallach, JJ.

Memorandum Opinion by Justice Bassel

STEVEN HERNANDEZ, FRANCISCO AZUERO, AND FAMILY HERITAGE 

LIFE INSURANCE COMPANY OF AMERICA, Appellants

V.

COMBINED INSURANCE COMPANY OF AMERICA, Appellee
2

MEMORANDUM OPINION

I. Introduction

This is an interlocutory appeal in which Appellants Steven Hernandez, Francisco

Azuero, and Family Heritage Life Insurance Company of America1 challenge a 

temporary-injunction order entered at the request of Appellee Combined Insurance 

Company of America.

Individual Appellants are former district sales managers of Combined who 

terminated their employment with Combined and became affiliated with Family 

Heritage. Combined sued Appellants alleging various causes of action based on the 

claim that Individual Appellants had violated covenants in their employment 

agreements. Combined sought a temporary injunction to restrain Appellants from 

soliciting Combined’s employees and policyholders and from using its confidential 

information. After a lengthy hearing, the trial court entered an order granting a 

temporary injunction (hereinafter the injunction order). Individual Appellants and 

Family Heritage perfected an appeal and filed separate briefs.

In nine issues, Individual Appellants launch a multifront attack on the injunction

order. Individual Appellants’ challenges to the injunction order fall into two categories. 

The first category asserts that the trial court abused its discretion because the record 

1

Throughout the opinion, we use the term Individual Appellants to refer to 

Hernandez and Azuero collectively and the term Appellants to refer to all three 

Appellants—Hernandez, Azuero, and Heritage.
3

does not support Combined’s right to injunctive relief. Relying on the generous 

standard of review that applies to temporary-injunction appeals, we conclude that the 

trial court did not abuse its discretion. Specifically, the trial court acted within its 

discretion to find that Combined had a probable right to recovery based on preliminary 

determinations that the covenants were reasonable, that Individual Appellants had 

committed acts in violation of the covenants, and that Combined would likely 

experience an imminent and irreparable injury if the temporary injunction were not 

entered.

The second category of challenges involves the form of the injunction order and 

Individual Appellants’ claims that the order does not describe its restraints in reasonable 

detail, restrains lawful activity, and grants relief beyond that requested by Combined. 

Because we sustain many of these challenges, we remand this case to the trial court to 

address the deficiencies that we identify in the order.

Family Heritage raises two issues. We hold that the trial court abused its 

discretion by restraining Family Heritage because the evidence does not support a 

finding that Family Heritage interfered with Combined’s contractual relations with 

Individual Appellants and that Family Heritage is not vicariously liable for Individual 

Appellants’ acts. Because Family Heritage should not have been enjoined, we vacate 

the portion of the injunction order restraining Family Heritage, dissolve the temporary 

injunction as to Family Heritage, and do not reach its second issue that challenges the 

form of the injunction order.
4

II. Factual and Procedural Background

A. Factual background

Individual Appellants started as sales agents at Combined and rose through the 

ranks to become district managers who supervised scores of agents on their respective 

sales teams. Their teams sold supplemental insurance policies and operated in

Combined’s Division 48 that marketed policies to a Spanish-speaking demographic.

When Individual Appellants began working at Combined, they signed 

employment agreements, and the covenants contained in those contracts underlie

Combined’s claims against them. The covenants contained in Individual Appellants’ 

respective contracts are identical. In paragraph (19)(a) of the agreements, Individual 

Appellants affirmed that, for a period of two years after termination of the agreements, 

they would not

(i) solicit or attempt to solicit on behalf of another insurer, any insurance 

of the kind or character sold by the Company (including but not limited 

to, accident & health, Medicare Supplement[,] and life insurance) to any 

of the Company’s policyholders in the Sales Territory covered by this

Agreement, or (ii) induce, or attempt to induce, any of the Company’s

policyholders to cancel, lapse, or fail to renew their polic[i]es with the

Company in said Sales Territory.

The agreements also provided that, for two years after the termination of the 

agreements, Individual Appellants would not

in any way directly or indirectly induce or attempt to induce any of the 

Combined Companies’ directors, officers, sales representatives, agents[,]

or other employees working in the state(s) in which the Employee’s Sales 

Territory is located[] to terminate their employment with the Combined 

Companies[] or to sell insurance for any other company.
5

The covenant defined “Sales Territory” as that territory or territories in which 

Individual Appellants had been assigned to work. Though there was controversy at 

trial about the extent of the respective sales territories, in general terms, Hernandez’s

territory encompassed counties in the Dallas–Fort Worth metropolitan area, and 

Azuero’s territory encompassed an area around Miami, Florida.

The agreements also noted that Individual Appellants would come into 

possession of confidential information. In the agreements, Individual Appellants

promised not to disclose that information.

Combined presented evidence that Hernandez had been given or had access to 

a wide range of confidential information about Combined’s operations in his roles as a

sales agent and later as a district manager. Combined also presented evidence that 

Azuero had access to information about all the Combined policyholders in Florida

where his sales territory was located. Hernandez acknowledged that he had received 

some confidential information, but he disputed both the type of information that he

had received and whether he had ever actually accessed the information that Combined

claimed that he could access. Combined acknowledged that it did not have direct 

evidence that Hernandez had retained confidential information when he had left 

Combined but claimed that he had unusually high usage of the information in the 

months before his departure.
6

Apparently, the impetus for Individual Appellants’ departure from Combined

came in late 2019. Azuero left Combined first, resigning in January 2020. Within a 

week of Azuero’s resignation, he became affiliated with the other Appellant in this 

matter, Family Heritage. Hernandez left approximately one month later, in February 

2020, and testified that his concerns about staying with Combined arose because its 

policies created a high turnover of agents and because other changes jeopardized his 

income.

One of Combined’s claims focused on whether Individual Appellants had 

violated the covenants in their employment agreements by actions that occurred

(1) after Azuero had become affiliated with Family Heritage and (2) at a February 18, 

2020 meeting where Hernandez announced to his Combined sales team that he was 

resigning. Individual Appellants gave innocent explanations about what had occurred, 

while Combined portrayed the events as raising an inference that Individual Appellants

had induced Combined’s sales agents to leave Combined and to become affiliated with 

Family Heritage.

For example, Hernandez acknowledged that, before the February 18 meeting, he 

flew to Miami to meet with Azuero and another former agent of Combined who had 

moved to Family Heritage—Reineldo Urgelles. Hernandez acknowledged that the 

purpose of this meeting was for him to obtain more information about Family Heritage.

Combined argued that the Miami meeting was apparently a session to prepare 

for Hernandez’s efforts to induce his sales team to follow him to Family Heritage. For 
7

example, Combined highlighted that after the Miami meeting, Azuero sent Hernandez 

a document to be given to Combined agents before they signed a contract to become

affiliated with Family Heritage. The document stated that “they were never contacted

or persuaded by [Family Heritage’s] Regional Director, Francisco Azuero, to quit their

employment at Combined” and that they had made their employment decisions 

“voluntarily and without any coercion.” Hernandez testified that the document was

prepared out of fear of possible “sanctions” from Combined and that its purpose was 

to document that Combined’s agents had not been solicited by Individual Appellants 

to join Family Heritage.

The differing portrayals of events and motives carried forward as the parties 

described the events leading to and occurring at the February 18 meeting when 

Hernandez announced his resignation from Combined. As background, Hernandez 

called weekly meetings of his Combined sales team to discuss sales goals and to 

welcome new team members. But the February 18 meeting was apparently the first one 

that was not held at Combined’s offices. One person who attended testified that she 

had understood that it would be a standard marketing meeting; instead, Hernandez

announced his resignation from Combined but did not say that he was moving to 

Family Heritage. Another attendee testified that Hernandez stated during the meeting 

that he was moving to Family Heritage.

Also, Azuero and Urgelles appeared at the meeting. Individual Appellants 

explained Azuero and Urgelles’s presence as coincidental, claiming that they had come
8

to Texas to discuss another line of insurance that they and Hernandez sold, and said 

that the meeting was not held at Combined’s office because they met at the location of 

the broker for the other line of insurance. Though there was a photo of Azuero and 

Urgelles at the front of the room where the meeting with Hernandez’s team occurred, 

Hernandez testified that during the meeting, he and Azuero did nothing to induce his

sales team to join Family Heritage. Azuero claimed that he did not know who the 

attendees at the meeting worked for and could not remember whether he had

mentioned Family Heritage while at the meeting. Yet Hernandez acknowledged, after 

his deposition testimony was read back to him, that he had told the attendees that 

Azuero and Urgelles had come to answer questions arising out of Hernandez’s 

resignation.

There were other divergences in the testimony about what had occurred at the 

February 18 meeting. Individual Appellants’ description of the sequence of events at 

the meeting was that Hernandez announced his resignation, and then he, Azuero, and 

Urgelles left the meeting. They went back to Hernandez’s cubicle to discuss the other 

line of insurance. According to Individual Appellants, several members of Hernandez’s 

sales team came of their own accord to the cubicle and asked questions about 

Hernandez’s plans. Individual Appellants stated that they merely answered the 

questions from those who wanted to know more about Family Heritage or had 

concerns.
9

But two members of Hernandez’s sales team who remained with Combined after 

his departure and who had attended the meeting portrayed what had occurred 

differently. They testified that, during the meeting, Hernandez and Azuero spoke of 

both the problems that Combined was experiencing and the advantages that Family 

Heritage offered its representatives. And Hernandez acknowledged that, at the 

meeting, he had discussed the benefits of working for Family Heritage.

What several of Hernandez’s team members did after the meeting was not 

controverted. A number of the attendees signed the form that Azuero had sent 

Hernandez that stated they were not contacted by or persuaded to seek employment 

from Family Heritage. Of the twenty-five to thirty members of Hernandez’s sales team 

who attended the meeting, eighteen signed the form. Ten to thirteen of those who 

signed the form subsequently became affiliated with Family Heritage.

Further, Hernandez did not tell Combined of his resignation until after the 

February 18 meeting. When a representative of Combined met with Hernandez to 

discuss his resignation, he did not disclose that he planned to become affiliated with 

Family Heritage. But Hernandez signed a marketing agreement with Family Heritage

the day after his resignation.

After Hernandez’s departure from Combined, Individual Appellants 

communicated about conducting interviews of Combined’s agents, and the text 

messages about those interviews, according to Combined, included a picture of 

Hernandez and the agents. Combined offered testimony that, after the interviews, the 
10

agents ended their affiliation with Combined and became affiliated with Family 

Heritage. Combined acknowledged that it did not know if these agents had reached 

out about joining Family Heritage. Hernandez testified that those who were 

interviewed had already submitted applications to become affiliated with Family 

Heritage before they were interviewed. But of the sixty agents who were listed as 

former agents of Combined and later became affiliated with Hernandez at Family 

Heritage, thirty-six had been on Hernandez’s team at Combined.

As with the divergent portrayals of whether agents of Combined were induced 

by affiliates of Family Heritage to leave, the same divergence occurred with the parties’ 

portrayals of whether Individual Appellants had solicited Combined’s policyholders. 

Other than one policyholder whose actions were highly disputed, Combined offered no 

evidence that policyholders to whom Hernandez had sold a Combined policy had 

cancelled that policy, and there was strong disagreement about the actions of the one

former Combined policyholder who had purchased a policy from Family Heritage. 

Instead, Combined offered proof that hundreds of Combined policyholders had called 

in to cancel policies that had been sold to them by former members of Hernandez’s 

Combined sales team who had moved to Family Heritage. Combined acknowledged

that it did not know if any of those policyholders had moved to Family Heritage. 

However, Combined’s representative testified that the fact that the policyholders had

called in to cancel indicated that they had a replacement policy. Also, Combined 

introduced text messages in which Azuero had sent Hernandez a form for policyholders 
11

to disclaim that they had been solicited to cancel a policy with Combined. Hernandez

had responded to Azuero when he received the document, “You think that’ll work?”

Family Heritage disclaimed any responsibility for Individual Appellants’ actions

primarily because the representative agreement that they had signed with Family 

Heritage stated that they were independent contractors. Family Heritage also 

contended that it did not exercise control over how its representatives did business or 

how its representatives recruited members for their sales teams. In response, Combined 

argued that though the marketing agreements characterized Family Heritage’s 

representatives as independent contractors, they also contained provisions by which 

Family Heritage exerted control over how the representatives conducted business such

that the representatives were actually its agents rather than independent contractors.

Family Heritage also disclaimed knowledge of the covenants contained in 

Individual Appellants’ employment agreements with Combined and of the events of 

the February 18 meeting, and it claimed that it had learned of the agreements and events 

when it was copied on a cease-and-desist letter sent by Combined. After receiving the 

letter, Family Heritage claimed that it had undertaken an investigation of the letter’s 

allegations that Individual Appellants had engaged in acts that solicited or induced 

Combined’s agents and policyholders. Family Heritage claimed that the investigation

concluded that the February 18 meeting was for the purposes that Individual Appellants 

had described though Combined challenged its results. Family Heritage did put in place 

a hold on the acceptance of new nominations of former Combined agents as its 
12

representatives. But no matter what the result of Family Heritage’s investigation or the 

actions that it had taken, Combined argued that Family Heritage had turned a blind eye 

to Individual Appellants’ misdeeds and was improperly benefitting from their misdeeds 

by profiting from the acts of the agents allegedly lured from Combined to Family 

Heritage.

B. Procedural background

Combined sued Hernandez and Family Heritage, alleging tortious interference 

and conspiracy and requesting a constructive trust. Combined also asserted breach-ofcontract and breach-of-fiduciary-duty claims against only Hernandez. The trial court 

entered a temporary restraining order that Combined sought in the original petition.

Combined later amended its petition to add Azuero as a party alleging claims 

against him for tortious interference and conspiracy and requesting a constructive trust. 

But the amended petition did not seek a temporary restraining order against Azuero. 

Rather, the amended petition requested a temporary injunction against all Appellants.

The trial court conducted a two-day hearing on Zoom on Combined’s request 

for a temporary injunction. The trial court entered an injunction order, which the court

subsequently amended. The injunction order included a number of findings that we 

will reference as we address the parties’ arguments. Based on the findings, the 

injunction order imposed the following restraints:

IT IS, THEREFORE, ORDERED that [Appellants] be enjoined, directly 

or indirectly, whether alone or in concert with others, including any 
13

partner, agent, servant, employee, employer, independent contractor, 

and/or representative . . . from[]

a. Inducing or attempting to induce any of Combined’s directors, 

officers, sales representatives, agents[,] or other employees who worked in 

Texas or Florida to terminate their employments with Combined;

b. Inducing or attempting to induce any of Combined’s directors, 

officers, sales representatives, agents[,] or other employees who worked in 

Texas or Florida to sell supplemental life, accident[,] and health insurance 

products for any other company;

c. Soliciting or attempting to solicit on behalf of another insurer, 

any insurance of the kind or character sold by Combined (including but 

not limited to accident & health, Medicare Supplement[,] and life 

insurance) or inducing or attempting to induce any of Combined’s 

policyholders within [Individual Appellants’] sales territories to cancel, 

lapse[,] or fail to renew their policies with Combined;

d. Divulging, disclosing[,] or using Combined’s confidential 

information as it is defined in the Combined standard employment 

agreement, including the identities, skills, talents, knowledge, experience, 

compensation, and preferences of any Combined Division 48 employees 

in Texas or Florida;

e. Destroying, hiding, deleting, or altering any document or 

electronically stored information relevant, or which could lead to the 

discovery of relevant information, to the subject matter of this lawsuit.

Appellants then perfected this appeal. Individual Appellants and Family 

Heritage filed separate briefs challenging the injunction order.

III. Standards Governing Temporary Injunctions and Standard of Review

“A temporary injunction is an extraordinary remedy and does not issue as a 

matter of right.” Abbott v. Anti-Defamation League Austin, Sw., & Texoma Regions, 610

S.W.3d 911, 916 (Tex. 2020) (quoting Walling v. Metcalfe, 863 S.W.2d 56, 57 (Tex. 1993)). 
14

Such an injunction functions “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) (op. on reh’g) (citing Walling, 863 S.W.2d at 57). “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.

The trial court exercises its sound discretion in deciding whether to issue a 

temporary injunction, and we may reverse that decision only if we conclude that the 

trial court abused its discretion because its actions were “so arbitrary that [they] 

exceeded the bounds of reasonable discretion.” Id. Our abuse-of-discretion review 

requires that we “view the evidence in the light most favorable to the trial court’s order

[and that we indulge] every reasonable inference in its favor.” IAC, Ltd. v. Bell Helicopter 

Textron, Inc., 160 S.W.3d 191, 196 (Tex. App.—Fort Worth 2005, no pet.). Thus, if the 

trial court must resolve a conflict in the evidence, its resolution of a fact issue is one to 

which we must defer. Wright v. Sport Supply Grp., Inc., 137 S.W.3d 289, 292 (Tex. App.—

Beaumont 2004, no pet.). However, we review the trial court’s application of the law 

to established facts and the resolution of pure legal questions de novo. Jelinis, LLC v. 

Hiran, 557 S.W.3d 159, 165 (Tex. App.—Houston [14th Dist.] 2018, pet. denied), cert. 

denied, 140 S. Ct. 244 (2019); Tom James of Dall., Inc. v. Cobb, 109 S.W.3d 877, 883 (Tex. 

App.—Dallas 2003, no pet.). Also, “[w]hen the trial court embeds findings of fact and 

conclusions of law in its order denying a temporary injunction, the findings and 
15

conclusions may be helpful in determining whether the trial court exercised its 

discretion in a principled fashion[;] however, they are not binding on this court.” 

Communicon, Ltd. v. Guy Brown Fire & Safety, Inc., No. 02-17-00330-CV, 2018 WL 

1414837, at *6 (Tex. App.—Fort Worth Mar. 22, 2018, no pet.) (mem. op.).

Because the temporary injunction only preserves the status quo pending final 

trial, the trial court’s determination regarding whether to issue the temporary injunction 

does not resolve the ultimate merits of the suit. Brooks v. Expo Chem. Co., 576 S.W.2d 

369, 370 (Tex. 1979). The assumption is that the evidence may well change between 

the preliminary temporary-injunction stage of the proceeding and a final trial on the 

merits. Burgess v. Denton Cty., 359 S.W.3d 351, 359 n.35 (Tex. App.—Fort Worth 2012, 

no pet.) (citing Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978)). Thus, the probabilityof-success requirement does not require an applicant to show that it will prevail at final 

trial. Kim v. Oh, No. 05-19-00947-CV, 2020 WL 2315854, at *2 (Tex. App.—Dallas 

May 11, 2020, no pet.) (mem. op.). The requirement goes no further than necessitating 

that “the applicant [] present enough evidence to raise a bona fide issue as to its right to 

ultimate relief.” Id.
16

IV. Analysis

A. The trial court did not abuse its discretion when it made a 

preliminary determination that the covenants at issue were 

reasonable in their restraints and that Combined had a probable 

right to recovery.

In their sixth issue, Individual Appellants assert that the trial court abused its 

discretion by issuing the injunction order because the covenants that Combined sought 

to enforce were unreasonable in their restraints and, for this reason, Combined could 

not establish a reasonable likelihood of success on its claims that would support a

probable right to recovery. We turn to this issue first because its resolution would 

accord Individual Appellants the greatest relief in that sustaining the argument would 

undermine the entire basis of Combined’s right to an injunction. Individual Appellants’ 

primary challenge is that the covenants unreasonably restrict which employees and 

policyholders Individual Appellants could deal with after they left Combined’s 

employment. We reject this contention. We review the reasonableness question from 

the perspective of whether the trial court had evidence to support its finding that

Combined had a probable right to relief and not from the perspective of a final decision 

on the merits that the covenants were reasonable. Applying this standard, we conclude 

that the trial court did not abuse its discretion when it made a finding that the covenants 

were reasonable as part of its probable-right-to-relief determination. We also reject 

Individual Appellants’ subsidiary arguments that appear to be predicated on narrow 

evidentiary challenges that we reject or deal with in other sections of this opinion.
17

1. In reviewing the issuance of a temporary injunction dealing

with a covenant not to compete, the trial court makes a 

preliminary determination regarding whether the covenant is 

reasonable.

In addressing the arguments about the reasonableness of the covenants, we first 

set forth the limited scope of our review. The preliminary question of reasonableness 

requires application of the standards of enforceability for covenants found in Section 

15.50 of the Business and Commerce Code:

[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.

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

As we noted when describing the standard of review, the ultimate merits of a suit 

are not before the trial court when deciding whether to issue a temporary injunction. 

Thus, when we review the propriety of a temporary injunction, we do not resolve the 

ultimate question of whether a covenant is legally enforceable under the provisions of

Texas Business and Commerce Code Section 15.50, which governs those covenants.

See Henry F. Coffeen III Mgmt., Inc. v. Musgrave, No. 02-16-00070-CV, 2016 WL 6277375, 

at *2 (Tex. App.—Fort Worth Oct. 27, 2016, no pet.) (mem. op.).

Rather, in the context of a temporary injunction involving a noncompete 

covenant, we review the enforceability issue “only to the extent necessary to determine 

whether the requirements for a temporary injunction have been met.” Tranter, Inc. v. 
18

Liss, No. 02-13-00167-CV, 2014 WL 1257278, at *3 (Tex. App.—Fort Worth Mar. 27, 

2014, no pet.) (mem. op.); see also Vaughn v. Intrepid Directional Drilling Specialists, Ltd., 288 

S.W.3d 931, 938 (Tex. App.—Eastland 2009, no pet.) (“[B]y granting a temporary 

injunction, a trial court does not declare that a covenant not to compete is valid.”);

EMSL Analytical, Inc. v. Younker, 154 S.W.3d 693, 695 (Tex. App.—Houston [14th Dist.] 

2004, no pet.) (stating that an appeal of an order granting or denying a temporary 

injunction based on a noncompete covenant does not present for appellate review the 

ultimate question of whether the covenant is enforceable under the Covenant Not to 

Compete Act); Tom James of Dallas, 109 S.W.3d at 882–83.

For a noncompete covenant to be enforceable under Section 15.50 of the Texas 

Business and Commerce Code, it must be, among other things, reasonable. Tex. Bus. 

& Com. Code Ann. § 15.50(a). Though neither we nor the trial court pass on the 

ultimate enforceability of the covenant, we must still ensure that the covenant is at least 

arguably reasonable under the applicable provisions of the Business and Commerce 

Code in order to decide whether the injunction applicant has shown a likelihood of 

success on the merits of its claims.2 The Fourteenth Court of Appeals has explained 

why even though the trial court may not reach the ultimate question of whether the 

2

In addition to reasonableness, enforceability under Section 15.50 also requires a 

noncompete covenant to be “ancillary to or part of an otherwise enforceable agreement 

at the time the agreement is made.” Tex. Bus. & Com. Code Ann. § 15.50(a). Individual 

Appellants do not argue that the covenants fail because they are not ancillary to an 

enforceable agreement.
19

covenant is reasonable and thus enforceable, it must still make a preliminary assessment 

of the covenant’s compliance with the governing statute when deciding whether to issue 

a temporary injunction:

[J]ust because [S]ection 15.50 does not control the analysis in interlocutory 

orders does not mean it plays no role in that analysis. . . . [T]o be entitled 

to a temporary injunction, an applicant must establish, among other 

things, a probability of ultimate success on the merits. This requirement 

protects opposing parties from the inherent interference of temporary 

injunctions when it appears unlikely that the applicant ultimately will 

prevail in the lawsuit. As appellants recognize, [S]ection 15.50(b) will play 

a pivotal and possibly dispositional role in the final outcome of appellants’

cause of action for breach of the noncompete covenant. Accordingly, in 

order to properly assess appellants’ likelihood of success on the merits, 

the trial court was required to consider the potential application of 

[S]ection 15.50(b) under the circumstances presented.

LasikPlus of Tex., P.C. v. Mattioli, 418 S.W.3d 210, 216 (Tex. App.—Houston [14th Dist.] 

2013, no pet.) (citations omitted).

Also, although Section 15.50 does not define what constitutes a covenant not to 

compete, the statute applies to the covenants at issue. As noted by the Dallas Court of 

Appeals, “[T]he supreme court holds that a covenant restricting former employees from 

soliciting their ‘former employers’ customers and employees’ is a restraint of trade subject 

to § 15.50.” See Smith v. Nerium Int’l, LLC, No. 05-18-00617-CV, 2019 WL 3543583, at 

*4 (Tex. App.—Dallas Aug. 5, 2019, no pet.) (mem. op.) (citing Marsh USA Inc. v. Cook, 

354 S.W.3d 764, 768 (Tex. 2011) (op. on reh’g), and Exxon Mobil Corp. v. Drennan, 452 

S.W.3d 319, 327 (Tex. 2014)).
20

In this appeal, Combined challenges whether Section 15.50 governs 

nonsolicitation covenants and describes the Smith v. Nerium decision quoted in the 

preceding paragraph as dicta. We disagree. The following rationale from the Corpus 

Christi–Edinburg Court of Appeals explains that nonsolicitation agreements

are subject to the same analysis as covenants not to compete. See Miller 

Paper Co. v. Roberts Paper Co., 901 S.W.2d 593, 600 (Tex. App.—Amarillo 

1995, no writ) (stating that “other than the moniker assigned it, nothing 

truly differentiates the [nonsolicitation] promise at bar from a covenant 

not to compete”). The purpose and effect of a non[]solicitation agreement 

parallel those inherent in a non[]compete covenant. Id. at 599. Both 

contain geographic and durational parameters, and both effectively restrict 

competition. Id. at 599–600; see Tex. Bus. & Com. Code Ann. § 15.[50](a). 

A non[]solicitation agreement is sufficiently analogous to a covenant not 

to compete such that the provisions of the Act must apply fully to such 

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

Shoreline Gas, Inc. v. McGaughey, No. 13-07-364-CV, 2008 WL 1747624, at *10 (Tex. 

App.—Corpus Christi–Edinburg Apr. 17, 2008, no pet.) (mem. op.). We find this 

rationale persuasive and hold that Section 15.50 governs the noncompete agreements 

in this case.

2. The trial court did not abuse its discretion by making a

preliminary finding that the covenants reasonably restrained 

Individual Appellants from inducing Combined’s agents to 

terminate their employment or to sell competing insurance.

Individual Appellants initially challenge the restrictions found in paragraph 

(19)(b) of their contracts that prohibit them from inducing or attempting to induce 

“Combined Companies’ directors, officers, sales representatives, agents[,] or other 

employees working in the state(s) in which the Employee’s Sales Territory is located” 
21

to terminate their employment with Combined or to sell competing insurance. 

Individual Appellants argue that the restraints in this paragraph are unreasonable 

because they encompass employees of Combined whom they have never met or whom

they are unaware are employed by Combined or employees who went to work for 

Combined after Individual Appellants’ departures.

The trial court did not abuse its discretion by rejecting Individual Appellants’

challenge to the scope of this restriction when deciding whether it would issue a 

temporary injunction. To support this conclusion, we rely on a recent decision from 

the Dallas Court of Appeals that dealt with and rejected a challenge similar to the one 

raised by Individual Appellants: Smith v. Nerium Int’l, LLC. See 2019 WL 3543583, at 

*5–6.

Smith dealt with a covenant restricting high-ranking members of Nerium’s sales

force from soliciting and recruiting other members of the force to join companies that 

engaged in the same type of marketing as Nerium. Id. at *1. Our sister court held that

the covenant protected a legitimate business interest of the company because it 

protected the goodwill that the company had developed through its sales force and

because there was also evidence that the former salespersons had access to confidential 

information, such as the sales performance of those who were downstream of them in 

the sales-force hierarchy. Id. Smith specifically addressed the question of whether the 

covenant was so overbroad and unreasonable that the trial court abused its discretion

by issuing a temporary injunction based on it. Id. at *6–8. The salespersons challenging
22

the reasonableness of the nonsolicitation covenant in Smith relied on the same case that

Individual Appellants cite as support for their argument—our opinion in Ally Financial, 

Inc. v. Gutierrez, No. 02-13-00108-CV, 2014 WL 261038 (Tex. App.—Fort Worth 

Jan. 23, 2014, no pet.) (mem. op.). See id. at *7. In Ally, we concluded that a covenant 

that prevented a member of a company’s IT department from soliciting any of its 

employees for two years after leaving the company was unreasonable. 2014 WL 261038, 

at *2–4. The covenant was unreasonable because it went beyond what was necessary 

to protect the company’s goodwill and other business interests. Id. at *8.

The Dallas court in Smith concluded that Ally did not support the argument that 

Nerium’s covenant was unreasonable, even though Nerium’s covenant prohibited the 

solicitation of employees who the salespersons did not know or who had joined the 

company after the salespersons had ended their affiliation with the company. 2019 WL 

3543583, at *7–8. Smith concluded that the covenant protected the company’s interests 

because the former salespersons “had access to the Nerium back office and could 

thereby learn which [sales force members] in their downlines were the most successful 

and the most desirable to recruit even if appellants did not personally know the [sales

force members].” Id. at *8. Also, because of their positions at Nerium, the salespersons 

had a cachet that gave them enhanced credibility. Id. The covenant was reasonable to 

prevent the salespersons from recruiting other members of the sales force who worked 

at the company when they did. Id. Further, the company had a legitimate interest in 
23

preventing the departed salesperson from recruiting members of the sales force who

had joined the company after their departures. See id. As Smith explained,

The trial court could also reasonably conclude that Nerium has a 

legitimate interest in restraining appellants from recruiting [sales 

personnel] who joined after appellants [had] cut their ties with Nerium. 

Because these new [members of the sales force] would acquire Nerium’s

confidential information and make use of its goodwill as soon as they 

joined the company, the trial court could reasonably decide that Nerium

has a legitimate interest in restraining appellants from recruiting them.

Id.

3

3

Smith also noted federal authority that concluded that a broad-ranging covenant, 

such as the one in this case, was reasonable. 2019 WL 3543583, at *7. Smith cited to 

Everett Fin., Inc. v. Primary Residential Mortg., Inc., No. 3:14-CV-1028-D, 2016 WL 7378937

(N.D. Tex. Dec. 20, 2016) (mem. op. & order). The court in Everett discussed why it 

had concluded that a broad-ranging nonsolicitation covenant, imposed by a company 

known as Supreme, was reasonable as follows:

The Branch Managers reply that a restraint on soliciting all Supreme 

employees is still too broad to be reasonable; that a reasonable covenant 

would be limited to only those employees with whom the Branch 

Managers had contact at Supreme, leaving the Branch Managers free to 

solicit other Supreme employees; that employee solicitation covenants are 

governed by the same reasonableness standard as client solicitation 

covenants, see Marsh, 354 S.W.3d at 768; and that client solicitation 

covenants must be limited to clients with whom the employees had 

personal contact, see Peat Marwick Main & Co. v. Haass, 818 S.W.2d 381, 

388 (Tex. 1991). The Branch Managers therefore maintain that a restraint 

against soliciting all Supreme employees, including those with whom they 

never had contact, is unreasonable.

The Branch Managers have not identified an authority holding that 

it is unreasonable to restrain solicitation of all current employees at a 

company of Supreme’s size. And it is not clear that the Supreme Court 

of Texas would extend its reasonableness analysis of client solicitation 

covenants to operate identically with respect to employee solicitation 

covenants. For example, although the Branch Managers rely on Haass, in 

that case the client solicitation restriction at issue would have required the 
24

We reject Individual Appellants’ application of Ally to this appeal for reasons

similar to those cited by Smith for rejecting Ally’s application to its facts. Combined’s 

corporate representative testified that as soon as Hernandez signed his employment 

agreement, he was given confidential information dealing with “market strategy product 

information, business information, strategic information, [and] how we go to business.” 

Hernandez’s access to confidential information on customers and employees increased 

as he was promoted. The corporate representative described the information that 

Hernandez had access to as a district manager as follows:

Q. (BY [COMBINED’S ATTORNEY]) . . . [W]hat sort of information

was provided to Mr. Hernandez by Combined when he was a district 

manager?

A. Certainly, as generally stated as a district manager, he would 

have [a] tremendous amount of confidential information, specifically 

around our customer’s demographic information, names, addresses, types 

of coverages, dates of birth, in some cases, Social Security numbers, 

[which] we protect very, very highly at Combined Insurance.

departing partner to “in effect, take a prospective client’s accounting 

history” to determine if the client had been served by his previous 

firm. . . . 818 S.W.2d at 387 (internal quotation marks omitted). By 

contrast, in this case, the restriction only applies to soliciting current

Supreme employees. This court has previously held that an employee 

non[]solicitation covenant extending to all current employees is a 

reasonable protection of the employer’s interest in maintaining its 

employees. Merritt Hawkins[ Assocs., LLC v. Gresham], 79 F. Supp. 3d [625,]

639–40 [(N.D. Tex. 2015) (order)] (upholding covenant against soliciting 

all employees). The court therefore holds that the Non[]Solicitation 

Agreement is not invalid for lack of a geographical or similar limitation.

Id. at *8.
25

And he would also have had access to fellow employee[s’]

information at the entire division, agents, where they worked, their names, 

their addresses, phone numbers, all of the contact information, types of

insurance that we sold.

I believe he would have seen that for [] every single agent as a 

manager at Division 48, along with the customers -- customers would have 

been a little more restrictive of what we would have seen for [the] [S]tate 

of Texas.

Q. The information that Mr. Hernandez had access to related to 

the agents within Division 48. Would that information include their sales 

records?

A. For all agents in the [S]tate of Texas, he could have, yes.

Q. And that would include information about how much they sold 

and what their commission was?

A. Yes. He would have seen the premium that they sold and the 

commission could be figured out, yes.

Q. And would he be able to determine from that information 

which agents were the best performers or the highest producers at 

Combined?

A. Certainly. There was also information around that . . . [that] we 

sent. As a district manager, [he would have had access to] all of the emails that come up from our corporate office or our regional offices[,] 

[including] how [much] producers [are] producing. So if he wanted to get 

that, he could receive that on an immediate basis.

But . . . in a sales organization, it’s [a] very competitive . . .

environment[;] it’s about winning. So we push a lot about performance.

Also, Hernandez had contact with sales managers outside his team through 

Combined’s national and regional meetings. Because of his status, he also had the 

opportunity to meet “all the top producers and [the] most successful people within the 
26

organization.” The last event that Hernandez attended before departing from 

Combined gave him access to the company’s 400 top “elite [managers] and agents.”

As in Smith, Hernandez had access to sales and production information for all 

the agents in Texas. He also had the opportunity to develop contacts with the top 

producers in the company.4

 Apparently, Hernandez’s sales generated through his sales 

team also gave him a special status within the company. At this preliminary stage of 

the proceeding, we conclude that the trial court acted within its discretion to find that 

Combined met the threshold of raising a bona fide issue that the noncompete covenant 

was reasonable to protect Combined from Individual Appellants’ use of the knowledge 

that they had acquired while with Combined. Therefore, the trial court did not abuse 

its discretion by restraining Individual Appellants from “induc[ing] or attempt[ing] to 

induce any of the Combined Companies’ directors, officers, sales representatives, 

agents[,] or other employees working in the state(s) in which [their] Sales Territory is 

located” to terminate their employment with Combined or to sell insurance for another 

company.

4

The evidence about what access Azuero had to confidential information is more 

limited. Combined’s corporate representative described Azuero as having the same 

access to policyholder information as Hernandez did. Azuero also had been a 

Combined district manager and presumably had similar access to the same information 

that Hernandez did in that role. Further, Azuero makes no argument that even if the 

injunction were proper as to Hernandez, it is improper as to him because the proof of 

Hernandez’s access to confidential information was stronger.
27

3. The trial court did not abuse its discretion by making a 

preliminary finding that the covenants reasonably restrained 

Individual Appellants from soliciting Combined’s 

policyholders to purchase insurance from a competitor.

Individual Appellants also challenge paragraph (19)(a) of their contracts that 

restricts them from soliciting Combined’s policyholders—as opposed to Combined’s 

agents—in Individual Appellants’ former sales territories to purchase insurance 

competitive to that sold by Combined or to induce those policyholders to cancel their 

policies. Individual Appellants’ argument is that the nonsolicitation covenant is 

unreasonable because it restricts them from soliciting customers with whom they never 

had any dealings.

Again, a covenant restricting the solicitation of a former employer’s clients may 

be reasonable when it is necessary to protect an employer from the disclosure of 

confidential information. The Dallas Court of Appeals recently explained the 

application of this principle as follows:

Covenants not to compete prohibiting solicitation of clients with whom a 

former salesman had no dealings are unreasonable and unenforceable.

Haass, 818 S.W.2d at 386–88. . . . In Haass, the Texas Supreme Court held 

[that] a restriction that prevented an employee from soliciting any of the 

employer’s customers worldwide, including those with whom he had no 

dealings during his employment, was unreasonable because it was not 

reasonably necessary to protect the employer’s business interest of 

preventing the employee from taking his clients with him to a competitor. 

Id. at 387–88. However, when an employer seeks to protect its 

confidential business information in addition to its customer relations, 

broad non[]solicitation restrictions are reasonable. See Accruent, LLC v. 

Short, No. 1:17-CV-858-RP, 2018 WL 297614, at *6 (W.D. Tex. Jan. 4, 

2018) [(order)] (applying Texas law). In Short, the court held [that] a 

provision preventing an employee from soliciting customers with whom 
28

he had no personal involvement was reasonable because the employer’s 

business interests included not only the employee’s client base but also the 

employee’s knowledge of proprietary information, which he might use to 

help a competitor. Id. And in M-I LLC v. Stelly, the court held [that] a 

similar restraint was reasonable because the employer’s business interests 

involved not only preserving its client base but also maintaining sensitive 

business information provided to an upper management employee. 733 

F. Supp. 2d 759, 798–800 (S.D. Tex. 2010) [(mem. & order)] (applying 

Texas law).

Gehrke v. Merritt Hawkins & Assocs., LLC, No. 05-18-01160-CV, 2020 WL 400175, at 

*4 (Tex. App.—Dallas Jan. 23, 2020, pet. denied) (mem. op.).

Again, at this preliminary stage of the proceedings, the ultimate question of the 

enforceability of the covenant prohibiting the solicitation of policyholders was not 

before the trial court and is not before us. But at this preliminary stage, Individual 

Appellants’ access to confidential information about Combined’s customers meets the 

threshold of raising a bona fide issue regarding whether Combined may be able to 

enforce the covenant, and the trial court did not abuse its discretion by finding that 

Combined had a probable right of recovery to enforce the covenant.

4. The subsidiary arguments that Individual Appellants raise do

not show an abuse of discretion by the trial court.

Individual Appellants next argue that the covenants are unreasonable because 

there is no evidence that they had access to company-wide confidential information or 

accessed information for policyholders whom they or the agents on their teams did not 

sell to. Individual Appellants also claim that they had no contact with non-English 

speaking agents or policyholders. The testimony from Combined’s corporate 
29

representative, quoted above, shows that Individual Appellants had broader access to 

information than they acknowledge in their argument. And their claim that they did 

not access the information that was available to them is not an attack on the 

reasonableness of the covenant but an attack on the evidentiary support for the 

injunction. We will deal with that issue shortly.

Individual Appellants also purport to challenge the reasonableness of the 

geographical reach of the covenants. Again, the covenant restricts them from soliciting 

customers in their “sales territory.” Individual Appellants’ attack is not that such a 

provision is unreasonable based on the confidential information provided to them or 

the need to protect the goodwill of Combined but that there was a controversy at trial 

about what constituted their sales territories, and the injunction should have clarified 

whose definition of “sales territory” it had adopted. This argument is an attack on the 

form of the injunction and is not a legal argument about the reasonableness of the 

covenant. We will address the question about the form of the injunction in a later 

portion of this opinion.

Next, in a single paragraph, Individual Appellants attack the reasonableness of 

the covenant’s provision that restricts them from soliciting agents in the entirety of the 

states in which their sales territories were located. They argue again that the covenant 

is unreasonable because it includes employees that they had never met in areas that they 

had never visited. Once again, the testimony from Combined’s corporate 

representative that we have quoted above indicates that Individual Appellants had 
30

access to confidential information about agents throughout the states in their territories. 

At this preliminary point in the proceeding, the trial court did not abuse its discretion 

by restricting Individual Appellants from soliciting agents based on the argument they 

had never met or dealt with those agents.

We overrule Individual Appellants’ sixth issue.

B. The trial court did not abuse its discretion by finding that Individual

Appellants had solicited Combined’s policyholders and agents.

In their seventh issue, Individual Appellants launch attacks on the following 

findings in the injunction order:

13. Combined has established a probable right of relief that [Individual 

Appellants] have solicited Combined’s policy[]holders within their 

territories as there was an unusually large amount of cancellations of 

policies written by [Individual Appellants] and their teams following their 

resignations.

14. Combined has established a probable right of relief that

[Individual Appellants] have breached their confidentiality restrictions by, 

among other things, using or disclosing Combined agents’ contact 

information and soliciting the best[-]performing agent[s] on their teams.

[Emphasis added.]

Individual Appellants contend that they did not violate their covenants because the 

definitions of the words used in the covenants—“inducing” and “soliciting”—mean 

more than simply answering questions brought to them by agents and policyholders 

about taking actions that they were already contemplating. The crux of the argument 

is that Individual Appellants did not persuade anyone to leave Combined but merely 

responded to inquiries by those who had decided on their own to inquire about making 
31

a change. In essence, Individual Appellants argue that the trial court made unreasonable 

inferences from the evidence that it had heard. We agree that the evidence of 

solicitation and inducement offered at the injunction hearing was hardly overwhelming. 

But again, we apply a standard that requires us to view the evidence in the light most 

favorable to the trial court’s order and to indulge every reasonable inference in its favor. 

See IAC, 160 S.W.3d at 196. Applying that standard, we reject Individual Appellants’ 

evidentiary attacks for the reasons set forth below.

1. The trial court did not abuse its discretion by making a 

preliminary finding that Individual Appellants solicited 

Combined policyholders.

Individual Appellants first contend that there is no evidence to support an 

inference that they solicited any Combined policyholders. We agree with Individual 

Appellants that the definitions of the words “inducing” and “soliciting” embrace more 

than merely answering questions brought by others. Indeed, a recent opinion by our 

court defines “solicit” to require behavior more motivational than answering questions. 

See Nguyen v. ABLe Commc’ns, Inc., No. 02-19-00069-CV, 2020 WL 2071757, at *12 (Tex. 

App.—Fort Worth Apr. 30, 2020, no pet.) (mem. op.) (quoting Eurecat US, Inc. v. 

Marklund, 527 S.W.3d 367, 381 (Tex. App.—Houston [14th Dist.] 2017, no pet.), and 

recognizing that, “[i]n the context of employer–employee relations, the commonly 

understood meaning of ‘solicit’ is ‘to “make petition to[,]” . . . ; “to approach with a 

request or a plea[,]” . . . ; “to move to action”; . . . [or] “to endeavor to obtain by asking 

or pleading.”’”). And inducement requires more than purely passive involvement. 
32

Inducement, Black’s Law Dictionary (11th ed. 2019) (“The act or process of enticing or 

persuading another person to take a certain course of action.”).

Individual Appellants highlight that Combined offered no testimony from any

policyholders stating that they had been solicited. Individual Appellants also dispute 

that any inference can be drawn from Combined’s evidence that, in the months 

following their departure, there were hundreds of cancellations by policyholders who 

had been sold Combined policies by former Combined agents who were now working 

on Hernandez’s team at Family Heritage. Individual Appellants try to downplay the 

effect of this testimony with two arguments.

First, they claim that the testimony regarding mass policy cancellations has no 

purpose because it failed to tie the cancellations to policies held by Individual 

Appellants’ clients rather than to policies held by the members of their teams. In their 

words, “[i]t would defy logic for [Individual] Appellants to unlawfully solicit their team 

members’ clients—but none of their own.” However, Combined’s representative 

testified that the agents whose policyholders had cancelled were now working under 

Hernandez at Family Heritage.

5 Also, Combined’s representative testified that, as a 

5

When asked which policyholders he was asking the court to enjoin Hernandez 

from soliciting, Combined’s representative testified as follows:

We have a high level of unusual cancellation[s,] [and] we’re in the process 

of doing some discovery with those customers. But we need to determine 

why a large number of hundreds of customers of agents that are now 

working under Mr. Hernandez have left us.
33

manager, Hernandez “did not have a lot of personal sales.” Thus, the simple fact that 

it was not Hernandez’s personal clients who were cancelling does not undermine an 

inference at this preliminary stage of the proceeding that he was orchestrating the 

cancellations through his team members who were previously Combined agents and 

who were now with Family Heritage.

Second, Individual Appellants attack the trial court’s ability to draw an inference 

from Combined’s representative’s testimony because it did not sufficiently explain why 

the level of cancellations was unusual or rebut the possibility that the cancellations were 

the result of policyholders being unable to pay premiums in hard economic times. This 

argument criticizes the trial court for not drawing the inferences that Individual 

Appellants advocated. But disagreement with the inferences does not mean that they 

are unreasonable. Further, the challenged inferences are not so unsupported by the 

evidence as Individual Appellants claim them to be.

Combined did quantify that there were hundreds of cancellations and that this 

was an unusual amount for the period of time involved. Combined’s representative 

also testified that when policyholders called to cancel, that usually meant that they had

a replacement policy—a fact that allowed the trial court to infer that the cancellations 

were for reasons other than the fact that the policyholders could no longer afford their

policies.

Individual Appellants also simply ignore conduct on their part that suggests 

preparation to solicit Combined’s policyholders, lending support to the trial court’s 
34

inference. Azuero sent Hernandez a draft document for each policyholder to sign 

saying that the decision to cancel the policy was the policyholder’s own choice and that 

the policyholder had not been told to cancel the policy. When Azuero sent Hernandez 

the draft of this document, Hernandez had asked, “You think that’ll work?” At this 

preliminary stage of the proceeding, the document, taken together with Individual 

Appellants’ conduct in handling the document, is at least some evidence of Individual 

Appellants’ preparation to solicit Combined’s policyholders and attempt to cover the 

tracks of that effort.

2. The trial court did not abuse its discretion by making a 

preliminary finding that Individual Appellants had solicited 

Combined agents.

Individual Appellants take a similar approach in attacking the evidence that they

had induced employees to leave as they take in attacking the evidence of solicitation of

Combined’s policyholders. That is, Individual Appellants claim that there is no direct 

evidence that they induced any agent to leave Combined, and they testified that they 

had not done so. Again, their view of the evidence is an effort to ignore reasonable 

inferences drawn from the evidence and the broad discretion that the trial court holds 

in drawing those inferences when dealing with the request for a temporary injunction.

Individual Appellants first attack what inferences can reasonably be drawn from 

the events of the February 18 meeting. Individual Appellants offer their innocent 
35

explanations for the presence of Family Heritage agents at the meeting and for what 

was discussed during and after the meeting.6

Perhaps it was a happy coincidence that Azuero and another Family Heritage

agent, Urgelles, were at the meeting. The evidence, however, allowed the trial court to 

infer that their presence was part of an effort to present Hernandez’s team members

with reasons why they should follow him to Family Heritage at the instant he disclosed 

his resignation from Combined.

There was evidence of laying the groundwork for such a plan. A week prior to 

the February 18 meeting, Hernandez flew to Miami to meet with both Azuero and 

Urgelles to discuss joining Family Heritage. The day of the meeting, Azuero sent 

Hernandez a document for the Combined agents to sign disclaiming that they had been 

solicited by Azuero or Urgelles. Hernandez acknowledged that Azuero had advised 

6

Individual Appellants couch their argument as follows:

The trial court found that [] Individual Appellants [had] solicited 

Combined’s agents to come work for Family Heritage during the 

February 18, 2020 meeting. The uncontroverted evidence shows 

otherwise. Combined’s own witnesses testified that[] (1) Family Heritage 

was not mentioned during the meeting; (2) Hernandez did not introduce 

Azuero or Urgelles during the meeting; (3) nobody told Combined’s 

agents to stop working for Combined; (4) nobody gave out any 

information on how to join Family Heritage, and not a single agent 

indicated that they planned to join Family Heritage; and (5) no one offered 

Combined’s agents a job with Family Heritage or even invited them to 

apply with Family Heritage. [Record references omitted.]
36

him to have Combined’s agents sign the statement before they were given contracts to

become affiliated with Family Heritage.

With this groundwork in place, Azuero and Urgelles flew to the Dallas–Fort 

Worth area to be present at the very meeting where Hernandez announced his 

resignation. Hernandez claims that he ended the meeting and then met with Urgelles 

and Azuero to discuss other matters and that, during that time, they were approached 

by agents who had attended the meeting and had questions about Family Heritage. No 

one disputes the result that ten to thirteen of the agents involved in the allegedly 

impromptu post-meeting discussion resigned from Combined and went to work with 

Family Heritage.

Also, agents who had attended the meeting countered Individual Appellants’ 

portrayal of what had occurred. An agent who was at the meeting noted the unusual

circumstances of the meeting. Prior meetings that Hernandez had called with his team 

had occurred at Combined’s offices. The February 18 meeting was called by Hernandez 

at a location other than Combined’s offices. When Hernandez announced the meeting 

to his team, it appeared to be for the same purpose as prior meetings—namely, to 

welcome new team members and discuss goals. But at the February 18 meeting, 

Hernandez resigned. And Azuero and Urgelles arrived and gave a presentation at the 

moment the meeting ended. In fact, one Combined agent who testified at the hearing 

stated that she thought that it was unethical that Azuero and Urgelles had arrived at the 

meeting precisely when Hernandez announced his resignation. When Azuero and
37

Urgelles appeared, they mentioned Family Heritage and discussed how people who had 

coverage with Family Heritage could save money. Apparently, Azuero also mentioned 

that he had just left Combined. The Combined agent who offered this testimony did 

not hear a discussion of the benefits of working at Family Heritage; but she left the 

meeting before everyone else, and she stated that she later learned that agents had 

switched their employment.

Another agent present at the meeting testified as to what had occurred as follows:

[O]nce [Hernandez] presented or announced that he was resigning, he 

mentioned, [“]If you want to know where I’m going, I’m going to this 

company, which is Family Heritage.[”]

And following that, he started presenting the benefits that -- or 

advantages that may -- that opportunity may present to us. And at the 

same time, he started talking about all the things that were wrong with 

Combined, and then he presented the proposal for us to consider whether 

or not we wanted to follow him.

. . . .

Once he announced his reassignment and mentioned . . . where he 

was going, he proceeded to present certain individuals and introduce them 

to us from the Family Heritage company.

Later, the witness testified that “[Hernandez said] [t]hat he had been traveling to 

Miami several times to meet with some former Combined agents, which were those 

individuals present there, and that he very much liked their product and their 

compensation package and that he [would be going to] work for them.” The witness 

acknowledged that Hernandez did not try to convince him to leave Combined. Also,
38

the witness did not hear Hernandez try to convince anyone else to leave Combined, but 

the witness left the meeting while others remained.

The evidence cataloged above casts doubt on Individual Appellants’ innocent 

portrayal of the February 18 meeting. They avoid the evidence that it was a preplanned 

effort to gather Hernandez’s sales team, let them know of his resignation, and have

Urgelles and Azuero there to discuss the advantages of working for Family Heritage. 

The document that agents signed to show that they had not been solicited does not 

insulate Individual Appellants from the inferences that can be drawn from these 

suspicious circumstances. Indeed, the fact that the document was prepared ahead of 

the meeting is at least some evidence that (1) Individual Appellants had planned to 

invite Hernandez’s sales team to join Family Heritage, and (2) the document stating that

the agents were not solicited was a subterfuge. And, again, the result of what occurred 

is not challenged—some of Combined’s agents who had been on Hernandez’s sales 

team did leave to join Family Heritage.

Individual Appellants try to blunt the effect of the evidence by pointing us to the 

definition of “solicit” in Nguyen that requires a move to action. See 2020 WL 2071757, 

at *12. But it was within the trial court’s discretion to find that the strategy of the 

February 18 meeting was to move the members of Hernandez’s sales team to the action 

of joining Family Heritage. The person who led their group gathered them together 

without fully disclosing his purpose, he announced his resignation, and he explained 

that his resignation was prompted by the problems that he saw at Combined, he 
39

presented Family Heritage as having advantages over Combined, and then he suggested 

that the agents consider whether they should do the same—i.e., resign and join Family 

Heritage. As subtle as they perhaps were, the efforts could be understood as designed 

to convince the agents to move and were much more than passively answering 

questions.

And, apparently, the efforts continued after the February 18 meeting as text 

messages indicated that Azuero was conducting interviews of Combined’s agents in the 

weeks that followed. Combined’s corporate representative testified that, after February,

another agent had “called our director, our current director, and told him that he had 

been recruited -- solicited by [Hernandez]. He was now going to work for Family 

Heritage.” This agent had apparently not been part of Hernandez’s team at Combined.

There was other testimony about the results of Individual Appellants’ efforts as 

well. Fifty percent of Hernandez’s new team at Family Heritage was comprised of 

former Combined agents, to the tune of thirty-three people. Hernandez benefitted 

from the agents that he recruited to join him at Family Heritage because he received a 

percentage of their sales commissions.

We have outlined the evidence before the trial court that supports an inference 

that Individual Appellants prepared and implemented a plan to induce agents of 

Combined to move to Family Heritage. Their preplanning began by preparing 

documents to disclaim that they had solicited agents; the document preparation

arguably suggests that they were planning to cover their tracks. Their behavior at the 
40

February 18 meeting and the portrayal by Combined’s witnesses of what occurred at

that meeting are sufficient for the trial court to doubt Individual Appellants’ claim that 

they only passively answered questions raised by team members. And the trial court 

also drew inferences of inducement from Individual Appellants’ post-meeting 

interviews, especially when a Combined agent who had left to join Family Heritage

reported that he had been solicited. Under the standards by which we review the trial 

court’s actions, we conclude that the trial court did not abuse its discretion by finding

that Individual Appellants had induced or had attempted to induce Combined’s 

employees to terminate their employment or to sell insurance for another company.

We overrule Individual Appellants’ seventh issue.

C. The trial court did not abuse its discretion by finding that Individual

Appellants had breached the contractual restriction on their use of 

Combined’s confidential information.

In their eighth issue, Individual Appellants challenge the trial court’s finding that

“Combined has established a probable right of relief that [Individual Appellants] have 

breached their confidentiality restrictions by, among other things, using or disclosing 

Combined[’s] agents’ contact information and soliciting the best[-]performing agent[s]

on their teams.” Again, the attack is based on a disagreement with the inferences that 

the trial court drew from the evidence or arguments that we have already rejected. We 

will briefly address these in turn.

• Individual Appellants contend that there is no evidence that they solicited agents. 

We have considered and rejected that argument.
41

• Individual Appellants argue that there is no evidence to support the 

characterization of the recruited agents as being the “best performing.” It is true 

that Combined’s representative did not use the term “best performers” when 

describing agents who had formerly worked for Hernandez at Combined but 

who now work under him at Family Heritage. But when the corporate 

representative listed the agents who had followed Hernandez, the representative 

described several of the agents as having been “very successful.” Individual 

Appellants’ argument is thus an attack on semantics and not on whether an 

inference could be drawn that Hernandez was using information he had acquired 

while at Combined to determine which agents to recruit for his team at Family 

Heritage.

• Individual Appellants also rely on the testimony that they had not kept the iPads 

issued to them by Combined and that Combined’s representative offered no 

direct evidence that Hernandez had downloaded information from the device 

before resigning from Combined. This argument ignores the full extent of the 

testimony in the very portion of the record they cite. Specifically, Combined’s 

representative testified that Hernandez had an unusually high level of access to 

information that dealt with the performance of agents before his departure:

I don’t have any direct insight into as far as I didn’t sit next to Mr. 

Hernandez as he might have taken that information.
42

What I do have is usage reports from our database that Mr. 

Hernandez utilize[d] some of our data information [in] unusually 

high [amounts] in January and December or more than he did 

before.

So looking at, you know, agents[’] information and bonuses, 

all that information, so we’re able to tell what he was looking at. I 

can’t tell you if that information was downloaded somehow.

This evidence, in combination with Hernandez’s actions and the fact that his new team 

seems to be composed of successful former Combined agents, was sufficient to allow 

the trial court to draw a reasonable inference that Hernandez had the motive and the 

opportunity to obtain Combined’s confidential information and that he had put that

information to use.

We overrule Individual Appellants’ eighth issue.

D. The trial court did not abuse its discretion by finding that Combined 

would probably suffer an imminent and irreparable injury if an 

injunction were not issued.

1. The trial court did not abuse its discretion by finding that the

probable injury was imminent.

In their ninth issue, Individual Appellants attack the trial court’s determination 

that Combined will probably suffer an imminent injury if an injunction order were not 

entered because Combined failed to establish any imminent danger of that injury. In

essence, Individual Appellants’ argument is that “imminence” requires proof that the 

acts allegedly causing the threatened injury are actually occurring, and “an injunction is 

not proper [because the threat of injury is not imminent] when the claimed injury is 

merely speculative; fear and apprehension of injury are not sufficient to support an 
43

injunction.” See Livingston v. Livingston, 537 S.W.3d 578, 595–96 (Tex. App.—Houston 

[1st Dist.] 2017, no pet.). We reject Individual Appellants’ assertion that an injury is 

not “imminent” for purposes of injunctive relief.

Individual Appellants’ argument that Combined’s injury is too speculative to 

support the trial court’s injunction focuses on the trial court’s findings that

[u]nless [Appellants] and those acting in concert with them[] are 

immediately restrained, Combined will suffer irreparable injury if 

[Appellants] are allowed to benefit from the breach of Hernandez’s

employment agreement with Combined or are allowed to interfere with 

the non[]solicitation agreements of Combined’s agents or to disclose or 

otherwise profit from any of Combined’s confidential information and 

trade secrets.

Repeating the bases for their prior attacks regarding solicitation and confidential 

information, Individual Appellants challenge the proof that they have solicited 

Combined’s agents or policyholders or utilized its trade secrets—with the primary 

emphasis in their argument being a lack of evidence that establishes a direct tie between 

their actions and Combined’s loss of policyholders. We will not repeat our analysis

from Sections B and C, supra, stating the inferences that the trial court was capable of 

drawing to support its findings on those issues.

Further, there was a rebuttable presumption that the probability of an injury was 

more than speculative. That presumption provides that “[a] highly trained employee’s 

continued breach of a noncompete agreement creates a rebuttable presumption that the 

employer is suffering an irreparable injury.” See Tranter, 2014 WL 1257278, at *7. Here,

there is sufficient evidence that Hernandez formed his team by soliciting agents from 
44

his team at Combined. Individual Appellants are undoubtedly in direct competition 

with Combined in the same market and for the same products that they sold while at 

Combined. We have cataloged the testimony from Combined’s representative 

regarding the information that Individual Appellants had access to and how they could 

use such information in their new endeavor.

Individual Appellants claim that they were merely salesmen for Combined and 

not the type of highly trained personnel that the presumption applies to. But it was 

within the trial court’s ambit at this stage to decide how highly trained they were. The 

trial court heard about how they had risen through the ranks at Combined and about 

the level of information that they had access to. Further, the fact that a person is a 

“salesman” is not a bar to the application of the presumption if the salesman has 

acquired the training and information that qualify him as highly trained. See id. at *1, 

*7–9 (applying presumption to regional sales manager); Wright, 137 S.W.3d at 292

(applying presumption to former salesman); Unitel Corp. v. Decker, 731 S.W.2d 636, 641 

(Tex. App.—Houston [14th Dist.] 1987, no writ) (applying presumption to former sales 

personnel); Martin v. Linen Sys. for Hosps., Inc., 671 S.W.2d 706, 709 (Tex. App.—

Houston [1st Dist.] 1984, no writ) (applying presumption to salesperson who solicited 

accounts for prior employer and had access to employer’s customer list and pricing 

information); Hartwell’s Office World, Inc. v. Systex Corp., 598 S.W.2d 636, 639 (Tex.

App.—Houston [14th Dist.] 1980, writ ref’d n.r.e.) (op. on reh’g) (applying

presumption to former top salesman).
45

Also, the argument that Combined cannot provide direct evidence tying 

Individual Appellants’ actions to a loss of policyholders is a variant of an argument that 

we rejected in a parallel case. Specifically, in Tranter, Inc. v. Liss, we rejected Individual 

Appellants’ argument and applied the presumption even in the absence of direct 

evidence of the use of confidential information by the former employee because of the 

inevitability that the former employee would use confidential information under those 

circumstances. See 2014 WL 1257278, at *8. We rejected their argument because

“[r]ather than rebutting the presumption, this evidence demonstrates precisely why the 

presumption exists,” namely, because “the former employee working in a similar 

capacity can hardly prevent his knowledge of his former employer’s confidential 

methods from showing up in his work.” Id. (citing Daily Instruments Corp. v. Heidt, 998 

F. Supp. 2d 553, 569 (S.D. Tex. 2014)); Williams v. Compressor Eng’g Corp., 704 S.W.2d 

469, 472 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.)).

Both in the present case and in Tranter, the core fact remained that the defendant

employee was in direct competition with his former employer in the territory that he 

had worked in, and he was competing for similar customers. See Tranter, 2014 WL 

1257278, at *9. “While there was evidence that [the former employee] was not actively 

trying to use [the former employer’s] confidential information, there was no evidence 

rebutting the presumption that [the former employee] would have extreme difficulty in 

not indirectly applying some of that confidential knowledge in his position at [new 

employer].” Id. (citing Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 552 (Tex. App.—
46

Dallas 1993, no writ), Hartwell’s Office World, 598 S.W.2d at 63, and Daily Instruments Corp., 

998 F. Supp. 2d at 569).

Here, Individual Appellants similarly fail to explain how they can go into

competition in the same market with the same product sold by Combined and not use 

the information that they had acquired while at Combined. Again, at this stage of the 

proceeding, the trial court’s determination that Combined would probably suffer an

imminent injury was within its discretion.

2. The trial court did not abuse its discretion by finding that the 

probable injury would be irreparable.

In another argument under their ninth issue, Individual Appellants challenge the 

trial court’s finding that Combined would suffer an irreparable injury; they argue that 

Combined could be compensated monetarily for any injuries caused by their actions. 

Individual Appellants do not quote the extensive findings that the trial court made on 

the issue of irreparability.

7

 Instead, they argue that Combined could cite only to the 

7

The primary findings are as follows:

16. Accordingly, the Court finds that unless a Temporary Injunction is 

entered immediately enjoining [Appellants] and anyone acting in concert 

with them from using or disclosing Combined’s confidential information 

and trade secrets, violating Hernandez’s non[]solicitation and 

non[]disclosure requirements, and tortiously interfering with 

Combined[’s] agents’ non[]solicitation agreements, there is imminent 

danger that Combined will suffer immediate and irreparable harm, loss, 

and damage in the form of lost profits, loss of market share, loss of 

goodwill, and a decrease in business directly resulting from the acts of 

Hernandez and Family Heritage. Combined has no adequate remedy at 

law, due to the continuing nature of the damages and the extreme 
47

loss of ten employees as a result of Individual Appellants’ actions at the February 18 

meeting and claim that any damage from that loss was quantifiable. Further, they argue

that Combined could not establish a loss of goodwill from the departure of the ten 

agents in light of how many other agents had left Combined recently.

But Combined’s representative testified to several types of irreparable injuries 

resulting from Individual Appellants’ actions:

Yes. Obviously, I’ve already mentioned -- testified to the fact that we are 

losing policyholders by the hundreds based on the agents that are now 

working at Family Heritage, previous coverage.

Obviously, these are agents that we invest a lot of time, effort, and 

we trained them. A lot of the people that are now working [for] Family 

Heritage, when they started working for Combined, it’s their first time

working for insurance. So we spent a lot of time and a lot of effort, a lot 

difficulty inherent in attempting to quantify the damages in monetary 

terms.

17. The Court finds that the irreparable injury that Combined seeks 

to avoid by obtaining equitable relief arises from the very nature of 

Combined’s confidential information and trade secrets, which it seeks to 

protect and recover. If Combined’s confidential information and trade 

secrets are not protected from improper and unauthorized use, their value 

will be completely destroyed and rendered useless. It is difficult, if not 

impossible, to assign a dollar value to the loss of business and/or 

customers that Combined will surely suffer if [Appellants] are permitted 

to (a) disclose or use any of Combined’s confidential information and 

trade secrets, or (b) continue to solicit Combined’s employees or clients. 

It is also difficult, if not impossible, to assign a dollar value to the damage 

to Combined’s goodwill, business reputation, and relationship with 

Combined’s employees if [Appellants] are not immediately enjoined from 

violating their agreements and/or soliciting and/or attempting to solicit 

Combined’s employees. Once confidential and secret information is 

revealed it cannot be recalled.
48

of investment developing and grooming them. Some moved into 

management roles.

Obviously, not only that, but, you know, the reputation and the 

brand of the organization. With[in] [the] supplemental insurance industry, 

small industry, when we see, you know, that these actions are taking place, 

this actually damages the reputation of our organization as well as the 

branding, and that’s something that, you know, you can’t really put figures 

into.

But it takes a long, long time to recover from something like that. 

So it’s very irreparable[,] and you can’t even see the damage that’s going 

to come because of these actions.

This evidence supports the trial court’s findings that Combined will likely suffer an

irreparable injury.

The cases that Individual Appellants cite do not persuade us to the contrary. For

example, they cite cases establishing that an injury is not considered irreparable if a party 

can be compensated monetarily, that monetary compensation is usually sufficient unless 

the loss is considered “legally ‘unique’ or irreplaceable,” and that an injury for breach 

of contract is usually compensable through a monetary award. See Cheniere Energy, Inc. 

v. Parallax Enters. LLC, 585 S.W.3d 70, 76–77 (Tex. App.—Houston [14th Dist.] 2019, 

pet. dism’d) (op. on en banc reconsideration); Lifeguard Benefit Servs., Inc. v. Direct Med. 

Network Sols., Inc., 308 S.W.3d 102, 113 (Tex. App.—Fort Worth 2010, no pet.). These 

citations ignore the opinions from our court and sister courts highlighting the difficulty 

in calculating damages in the context of the breach of noncompete covenants and 

describing the use of confidential information in such cases as “the epitome of 

irreparable injury.” See Tranter, 2014 WL 1257278, at *9 (quoting Daily Instruments Corp., 
49

998 F. Supp. 2d at 569); see also, e.g., Equine Sports Med. & Surgery Weatherford Div., PLLC 

v. Tipton, No. 02-19-00346-CV, 2020 WL 6165414, at *6 (Tex. App.—Fort Worth 

Oct. 22, 2020, no pet.) (mem. op.) (“Damages attributable to a former employee’s 

competition and appropriation of goodwill can be difficult to calculate.”); Thomas v. 

A*Med Mgmt., Inc., No. 01-19-00564-CV, 2020 WL 5269412, at *5 (Tex. App.—

Houston [1st Dist.] Sept. 3, 2020, no pet.) (mem. op.) (cataloging cases holding that the 

damages for loss of customer goodwill and the use of confidential information by a 

former employee may be difficult to quantify and constitute an irreparable injury); 

Frequent Flyer Depot, Inc. v. Am. Airlines, Inc., 281 S.W.3d 215, 228 (Tex. App.—Fort 

Worth 2009, pet. denied) (“[A]ssigning a dollar amount to such intangibles as a 

company’s loss of clientele, goodwill, marketing techniques, and office stability, among 

others, is not easy.”).

Individual Appellants’ arguments are not without basis, and as with most of their 

arguments, they might have given the trial court grounds to deny Combined’s 

temporary-injunction request. But applying the standard of review that we have cited

repeatedly, the evidence is not so weak that we may conclude that the trial court abused 

its discretion by finding that Combined would probably suffer irreparable injury.

We overrule Individual Appellants’ ninth issue.
50

E. The injunction order fails in several regards to describe, in 

reasonable detail, the acts that it restrains.

We next turn to Individual Appellants’ first through third issues that attack the 

form of the injunction order by claiming that it does not identify the policyholders and 

employees of Combined that are the subject of the injunction and fails to describe the 

confidential information the Individual Appellants are restrained from disclosing. We 

agree that the injunction order has many of the failings that the Individual Appellants 

identify.

The injunction order’s primary operative terms prohibit the following acts:

a. Inducing or attempting to induce any of Combined’s directors, officers, 

sales representatives, agents[,] or other employees who worked in Texas 

or Florida to terminate their employments with Combined;

b. Inducing or attempting to induce any of Combined’s directors, 

officers, sales representatives, agents[,] or other employees who worked in 

Texas or Florida to sell supplemental life, accident[,] and health insurance 

products for any other company; [and]

c. Soliciting or attempting to solicit on behalf of another insurer, 

any insurance of the kind or character sold by Combined (including but 

not limited to accident & health, Medicare Supplement and life insurance) 

or inducing or attempting to induce any of Combined’s policyholders 

within [Individual Appellants’] sales territories to cancel, lapse[,] or fail to 

renew their policies with Combined[.]

With respect to their first argument, Individual Appellants contend that these 

provisions fail to provide the means to identify the “directors, officers, sales

representatives, agents[,] or other employees” or the policyholders that fall within the 

ambit of the injunction order. They also attack the provision because there was 
51

disagreement at the injunction hearing about what constituted their sales territories, and 

the injunction order gives no guidance on whose view of the territories’ extent the trial 

court adopted. We conclude that Individual Appellants’ arguments are valid and that 

the injunction order is flawed because it lacks reasonable detail describing who 

Individual Appellants may not contact and where they may or may not solicit 

policyholders.

Texas Rule of Civil Procedure 683 governs the form of an injunction. Tex. R. 

Civ. P. 683. The rule dictates that an injunction order “shall describe in reasonable 

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

to be restrained.” Id. “An injunction must be definite, clear, and concise, leaving the 

person enjoined in no doubt about his duties, and should not be such as would call on 

him for interpretations, inferences, or conclusions.” Vaughn v. Drennon, 202 S.W.3d

308, 316 (Tex. App.—Tyler 2006, no pet.) (citing Gulf Oil Corp. v. Walton, 317 S.W.2d 

260, 264 (Tex. App.—El Paso 1958, no writ) (per curiam)).

We recently noted both the mandatory nature of Rule 683’s requirements and 

the consequences of the failure to adhere to those requirements:

Rule 683’s requirements are mandatory and must be strictly followed. 

Qwest Commc’ns Corp. v. AT & T Corp., 24 S.W.3d 334, 337 (Tex. 2000); Big 

D Props., Inc. v. Foster, 2 S.W.3d 21, 22–23 (Tex. App.—Fort Worth 1999, 

no [pet.]). A trial court abuses its discretion when it issues a temporary 

injunction that does not conform to Rule 683. IAC, Ltd. . . . , 160 S.W.3d 

[at] 201 . . . ; Armstrong–Bledsoe v. Smith, No. 2-03-323-CV, 2004 WL 

362293, at *2 (Tex. App.—Fort Worth Feb. 26, 2004, no pet.) (mem. op.) 

(citing EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 53 (Tex. App.—San 

Antonio 2002, no pet.)). Where a temporary injunction does not meet 
52

Rule 683’s requirements[,] it is subject to being declared void and 

dissolved. Qwest Commc’ns, 24 S.W.3d at 337; Big D Props., 2 S.W.3d at 22–

23.

SISU Energy, LLC v. Hartman, No. 02-19-00436-CV, 2020 WL 4006725, at *14 (Tex. 

App.—Fort Worth July 16, 2020, no pet.) (mem. op.).

A recurring source of confusion is how an injunction order that prohibits a party 

from contacting or dealing with a class of persons should identify the persons who fall 

within the class; this issue frequently arises in cases enforcing a noncompete clause that 

prohibits a party from dealing with its former employer’s customers. Texas caselaw is 

mixed on this issue, varying based on the court of appeals authoring the opinion and 

the enjoined party’s knowledge of the confidential class members it is prohibited from 

contacting.

In some cases, the courts have held that the injunction order need not specifically 

identify the customers. These cases seem to have two rationales. First, if the trade 

secret protected is a customer list, it would defeat the purposes of confidentiality to 

identify the customer’s names in the injunction order. See Safeguard Bus. Sys., Inc. v. 

Schaffer, 822 S.W.2d 640, 644 (Tex. App.—Dallas 1991, no writ) (“Where secret 

customer information was one of the main assets sought to be protected, the trial court 

would defeat that purpose by requiring the public disclosure of such information.”); see 

also Thomas, 2020 WL 5269412, at *6 (citing Safeguard for quoted proposition); Orbison v. 

Ma-Tex Rope Co., 553 S.W.3d 17, 33 (Tex. App.—Texarkana 2018, pet. denied) (same); 

Lockhart v. McCurley, No. 10-09-00240-CV, 2010 WL 966029, at *4 (Tex. App.—Waco 
53

Mar. 10, 2010, no pet.) (mem. op.) (same). Second, courts often conclude that the

enjoined party has the knowledge and the necessary information to determine who 

cannot be contacted because the enjoined party is familiar with his or her former 

employer’s business. See Safeguard, 822 S.W.2d at 644; Lockhart, 2010 WL 966029, at *4. 

We employed this rationale in Bellefeuille v. Equine Sports Med. & Surgery, Weatherford Div., 

PLLC, No. 02-15-00268-CV, 2016 WL 1163364, at *7 (Tex. App.—Fort Worth Mar. 

24, 2016, no pet.) (mem. op.) (citing Safeguard when discussing terms of injunction 

order). And oftentimes this rule is reasonable because the injunction order is limited to 

customers with whom the former employee dealt, and this experience provides the 

knowledge as to who should not be contacted. See Lockhart, 2010 WL 966029, at *2

(stating that injunction order prohibited former employee from soliciting clients that he

had served, had dealt with, or had represented while employed with his prior employer).

But other cases conclude that an injunction order that does not specifically 

identify the persons who are off limits is too vague. These cases often turn on evidence 

that the employee does not have the information to know who should not be contacted. 

For example, we recently dealt with an injunction prohibiting a party from contacting 

customers of the company that he was formerly affiliated with. See SISU Energy, LLC, 

2020 WL 4006725, at *15–16. In SISU, the parties could not agree on who the 

company’s customers actually were, and the enjoined parties were “left guessing” who 

they were prohibited from contacting. Id. at *16; see also Heat Shrink Innovations, LLC v. 

Med. Extrusion Techs.-Tex., Inc., No. 02-12-00512-CV, 2014 WL 5307191, at *9 (Tex. 
54

App.—Fort Worth Oct. 16, 2014, pet. denied) (mem. op.) (holding that injunction that 

vaguely named entities that could not be contacted was not “as definite, clear, and 

precise as possible”).

But some courts of appeals go further and reject the proposition that an enjoined 

party’s knowledge of which customers are off limits is a substitute for specificity in 

identifying those customers in an injunction order. See Computek Comput. & Office 

Supplies, Inc. v. Walton, 156 S.W.3d 217, 222–23 (Tex. App.—Dallas 2005, no pet.)

(stating that even if the trial court had expressly found that appellant had information 

about which customers it should not contact because of its prior contacts with the 

customers, Rule 683 provides that “the 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 any other document, the act or acts sought to be restrained’”

and that “the injunction itself must provide the specific information as to the off-limits 

clients, without inferences or conclusions, or, in this case, implied references to other 

records [appellant] might have”); see also McCaskill v. Nat’l Cir. Assembly, No. 05-17-

01289-CV, 2018 WL 3154616, at *4 (Tex. App.—Dallas June 28, 2018, no pet.) (mem. 

op.) (“As in Computek, the injunction itself does not provide the specific information 

about who the off-limits clients and customers are, and the lack of specificity cannot be 

cured by any knowledge [appellant] may have outside the injunction.”); In re Krueger, No. 

03-12-00838-CV, 2013 WL 2157765, at *9 (Tex. App.—Austin May 16, 2013, orig. 

proceeding) (mem. op.) (citing Computek as support for overturning contempt judgment 
55

because the underlying “injunction does not identify the individuals who [Relator] is 

prohibited from contacting, and it requires [Relator] to make inferences or conclusions 

concerning whom those individuals are”). Further, at least one court of appeals that

adopted a stricter view of the specificity required by an injunction order rejected the 

argument that the enjoined party can protect itself by asking if the customer is a client 

of the entity that is off limits. See Computek, 156 S.W.3d at 222. According to that court, 

the very asking of the question might be a violation of a restraint prohibiting solicitation. 

See id.

We do not have to resolve the question about whether an enjoined party’s

knowledge is sufficient to satisfy the specificity requirement of an injunction. Here, the 

record demonstrates that Individual Appellants were restrained from contacting 

customers with whom they had never dealt. Paragraph 19.c. of the injunction order 

covers not only policyholders that Individual Appellants dealt with but any policyholder 

within their sales territory. It also covers policyholders who bought a policy from 

Combined after Individual Appellants had left Combined. Individual Appellants both 

testified that they did not know who all of the Combined policyholders were in their 

Combined sales territories. Though Combined’s representative testified that Individual 

Appellants might have known who the policyholders were in their territories before 

they left Combined, they could not have known who those policyholders were after 

they had left. Thus, the injunction order is not sufficiently specific because it does not

identify the persons who cannot be contacted by Individual Appellants.
56

There is another failure in specificity that is latent in paragraph 19.c. of the 

injunction order. That paragraph restrains Individual Appellants from soliciting and 

inducing “any of Combined’s policyholders within [Individual Appellants’] sales 

territories.” [Emphasis added.] Combined’s employment agreements do not define 

Individual Appellants’ sales territories other than “includ[ing] any territory or territories 

Employee was assigned to work in the twenty-four[-]month period immediately 

preceding the Termination of this Agreement.” And there was disagreement at the 

injunction hearing as to what actually constituted Individual Appellants’ sales territories. 

Individual Appellants testified that their sales territories were composed of certain 

counties in the respective states their territories touched but that their teams could make 

sales outside of these counties. Combined offered evidence that presumed that 

Individual Appellants’ sales territories included any zip code in the state where one of 

the agents on their teams had sold a policy. Individual Appellants denied that 

Combined had ever provided such a list of zip codes to them. The injunction order 

does not state which view of the composition of the sales territories that the trial court 

had adopted. This is another failure of the injunction order to provide reasonable detail 

about what acts it prohibits. With the controversy about what constitutes Individual 

Appellants’ sales territories unresolved by the terms of the injunction order, Individual 

Appellants do not know where they can and cannot solicit policyholders.

And there is a third failing that is in paragraphs 19.a. and b. of the injunction 

order. Those paragraphs restrain Individual Appellants from inducing or attempting to 
57

induce “any of Combined’s directors, officers, sales representatives, agents[,] or other 

employees who worked in Texas or Florida” from terminating their employment with 

Combined or to sell insurance competing with Combined’s. Individual Appellants 

testified that they did not know or have contact with every single director, officer, sales 

representative, agent, or other employee that worked for Combined in Texas or Florida. 

Combined did not explain—either to the trial court or to this court—how Individual 

Appellants could have known this. Thus, the failure to identify the directors, officers, 

sales representatives, agents, or other employees that Individual Appellants could not 

induce or attempt to induce is another way that the injunction order fails to provide 

reasonable detail about the acts that it restrains.

The injunction order also fails to provide reasonable detail in a fourth regard as 

well. In paragraph 19.d., the injunction order prohibits the disclosure of confidential 

information and provides that the parties subject to the injunction are prohibited from

“[d]ivulging, disclosing[,] or using Combined’s confidential information as it is defined 

in the Combined standard employment agreement, including the identities, skills, 

talents, knowledge, experience, compensation, and preferences of any Combined 

Division 48 employees in Texas or Florida.” This provision does not provide 

reasonable detail to describe the nature of the “skills, talents, knowledge, experience, 

compensation, and preferences” that the enjoined parties are prohibited from disclosing 

or using. The terms used are inherently vague because of their generality. As presently 

drafted, the injunction order does not state its terms with enough specificity to give 
58

Individual Appellants adequate notice of the acts that they are restrained from doing. 

See Ramirez v. Ignite Holdings, Ltd., No. 05-12-01024-CV, 2013 WL 4568365, at *4 (Tex. 

App.—Dallas Aug. 26, 2013, no pet.) (mem. op.) (holding that injunction order did not 

adequately define confidential information to give enjoined party notice of restrained 

acts and that enjoined party had to “infer whether any particular information or item in 

[his] possession constitute[d] ‘proprietary information’ or ‘confidential information’

subject to the injunction”); see also Cooper Valves, LLC v. ValvTechs., Inc., 531 S.W.3d 254, 

266 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (holding that injunction that 

prohibited disclosure of “confidential and trade secret information” by referencing twopage list of information was “impermissibly vague, fail[ed] to provide adequate notice 

to appellants of the acts they are restrained from doing in terms not subject to 

reasonable disagreement, and therefore violate[d] Rule 683’s specificity requirement”).

We sustain Individual Appellants’ first through third issues that challenge the 

failure of the injunction order to provide reasonable detail of the acts that it restrains.

F. The injunction order restrains Individual Appellants from

performing several lawful activities.

In their fourth issue, Individual Appellants challenge the form of the injunction

order because it allegedly prevents them from performing lawful activities. They cite 

the rule that “[a] trial court abuses its discretion by entering an ‘overly-broad’ injunction 

which grants ‘more relief’ than a plaintiff is entitled to by enjoining a defendant from 

conducting lawful activities or from exercising legal rights.” The general principle that 
59

Individual Appellants rely on is correctly cited. See Harbor Perfusion, Inc. v. Floyd, 45 

S.W.3d 713, 718 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.) (“[A] trial court 

abuses its discretion by entering an ‘overly-broad’ injunction which grants ‘more relief’ 

than a plaintiff is entitled to by enjoining a defendant from conducting lawful activities 

or from exercising legal rights.” (quoting Fairfield Estates L.P. v. Griffin, 986 S.W.2d 719, 

723 (Tex. App.—Eastland 1999, no pet.))). Here, the failings that Individual Appellants 

identify result from grammatical errors in the injunction order. Because we are 

remanding this case, the errors that we agree exist may be corrected on remand.

The challenge in Individual Appellants’ fourth issue is predicated mostly on the 

failure of the restraints in the injunction order to follow the structure of the covenants. 

The injunction does contain various failings and ambiguities in this regard. The first 

failing that we address is an ambiguity found in paragraph 19.c. of the injunction order.

Individual Appellants point out that the covenant’s provision prohibiting the 

solicitation of policyholders is limited to policyholders in their respective sales 

territories. They challenge the injunction order’s provision dealing with the 

policyholders because it uses only the phrase “within [their] sales territories” when 

restraining the inducement of policyholders to terminate their policies, but the phrase 

is not repeated to qualify the provision prohibiting the solicitation of the sale of 

competing insurance. Thus, they argue that the injunction prevents them from 

engaging in the lawful activity of soliciting the sale of competing insurance outside their 

former sales territories. As the provision is structured, the qualifying phrase might or 
60

might not be read to apply to both prohibitions. Because we are remanding this case 

and have already held that the injunction is unduly vague, we instruct the trial court to 

clarify this provision to ensure that the limiting phrase clearly applies to both restraints 

in the provision.

The second challenge to the breadth of the injunction order is to paragraphs 19.a.

and b. that prohibit the solicitation of Combined’s employees to terminate their 

employment or to sell competing insurance. The challenge is that, as phrased, 

Individual Appellants are prohibited from engaging in acts of solicitation in both Texas 

and Florida, but the covenant in their Combined employment agreements prohibits

solicitation only in the specific state where their respective sales territories were located, 

i.e., Texas for Hernandez and Florida for Azuero. Combined does not respond to this 

contention. We hold that the injunction order prohibits lawful activity because it fails 

to limit the geographic reach of its employee-solicitation and policyholder-solicitation

provisions to the states in Individual Appellants’ respective sales territories. This is 

another issue that the trial court should address on remand.

Finally, Individual Appellants challenge the provision prohibiting them from 

“[d]ivulging, disclosing, or using Combined’s confidential information” because it 

potentially includes information that they obtained after leaving their employment with 

Combined. The injunction order, however, provides that the confidential information 

covered by the injunction is “as it is defined in the Combined standard employment 

agreement.” That document appears to limit the reach of confidential information to 
61

that acquired by the employee during the term of the agreement, which may be 

terminated at any time by the employee. Thus, the injunction does not contain the flaw 

that Individual Appellants claim that it has.

Thus, we sustain Individual Appellants’ fourth issue in part by holding that the 

injunction order is overly broad because of failings in paragraphs 19.a.–c. described 

above. We overrule the remaining challenges raised in Individual Appellants’ fourth 

issue.8

8

In their fifth issue, Individual Appellants assert that the trial court exceeded its 

jurisdiction by granting more relief than Combined requested in “Plaintiff’s First 

Amended Petition and Application for Temporary Restraining Order, Temporary 

Injunction, and Permanent Injunction.” See RP & R, Inc. v. Territo, 32 S.W.3d 396, 402

(Tex. App.—Houston [14th Dist.] 2000, no pet.) (“[W]here the injunctive relief granted 

exceeds the relief requested by the applicant in the petition, the trial court exceeds its 

jurisdiction.”). The challenge takes two forms.

The first challenge is that Combined’s application sought only to prevent the 

disclosure of confidential information that Hernandez but not Azuero had obtained 

while affiliated with Combined and that the injunction covers disclosure by Azuero as 

well. The application did not allege a breach-of-contract claim against Azuero, but it 

did allege a tortious-interference claim and a conspiracy claim against him. Thus, as 

phrased, the application could have been read as seeking to restrain Azuero from 

disclosing information that Hernandez had acquired. Though the injunction did not 

parse the matter to describe the source of the information that Azuero is prohibited 

from disclosing, there was a basis for the trial court to enjoin Azuero from disclosing 

information even though he may not have been the person that acquired the 

information. For this reason, the injunction did not necessarily grant relief that was not 

supported by the application.

The second challenge is that the application sought to prohibit Individual 

Appellants from inducing or attempting to induce Combined’s “directors, officers, sales 

representatives, agents[,] or other employees” who worked in their sales territories from 

terminating employment or from selling competing insurance. The complaint is that 

the injunction is broader and covers directors, officers, sales representatives, agents, or 
62

G. The trial court abused its discretion by enjoining Family Heritage.

In its first issue, Family Heritage argues that the trial court abused its discretion 

by entering an injunction order that restrained its actions. Family Heritage argues that

if the trial court found that Family Heritage had interfered with Combined’s 

employment agreements with Individual Appellants, that finding is unsupported by the 

record. Combined makes only an oblique response to this argument. Instead, 

Combined mostly relies on a theory of agency to warrant relief against Family Heritage.

To support this argument, Combined asserts that, although Individual Appellants’

contracts with Family Heritage describe them as independent contractors, Family 

Heritage exercised a degree of control over them that they were in fact agents, and thus, 

Family Heritage is vicariously liable. We agree that the record does not support the 

existence of a tortious-interference claim against Family Heritage, we reject Combined’s 

argument that challenges the independent-contractor status of Individual Appellants, 

other employees “who worked in Texas or Florida.” This disconnect exists. But we 

are remanding this case to the trial court to address the vagueness of the injunction. 

We assume that the application will be amended on remand to deal with the other 

matters addressed in this opinion, and therefore, we do not reach the question regarding 

whether the present state of the application supports the relief contained in the 

injunction.
63

and we hold that the trial court abused its discretion by entering an injunction order 

that restrained Family Heritage’s actions.

1. The injunction order is ambiguous regarding the cause of 

action forming the basis for relief.

Combined sued Family Heritage for tortious interference, conspiracy, a 

constructive trust, and an accounting. Other than mentioning a conspiracy claim in its 

statement of the case, Combined’s brief never again mentions that cause of action. The 

finding in the injunction order that mentions the basis for relief against Family Heritage

provides little guidance as to what cause of action it is referencing:

Reineldo Urgelles, Larry Salerno, Miguel Cruz, Dynasty Financial Group, 

and Family Heritage benefitted and will continue to financially benefit 

from [Individual Appellants’] solicitation of Combined’s agents and 

breach of the agents’ non[]solicitation restrictions as each of these persons 

receives a certain amount of commission on policies sold by the agents 

that [Individual Appellants] recruited from Combined. As such, these

parties acted “in concert” with [Individual Appellants] to solicit 

Combined’s agents in Texas.

2. The trial court abused its discretion to the extent that it found 

that the evidence supported a tortious-interference claim 

against Family Heritage.

First, we agree with Family Heritage that the record does not contain evidence 

of tortious interference. The record lacks evidence that Family Heritage intentionally

interfered with Individual Appellants’ employment agreements.

To begin this analysis, we must sort out what interference claim Combined 

alleged. Its amended petition alleges a claim that “Family Heritage knew of Combined’s 

contractual and advantageous business relationships between Combined and its 
64

employees” and knew of Combined’s contention that Individual Appellants violated 

their employment agreements. But Individual Appellants were at-will employees of 

Combined. To the extent that Combined is claiming that Family Heritage interfered

with Combined’s relations with the two by inducing them to quit Combined, that is not 

a cognizable claim. Lazer Spot, Inc. v. Hiring Partners, Inc., 387 S.W.3d 40, 53 (Tex. App.—

Texarkana 2012, pet. denied) (holding mere hiring of another’s at-will employee legally 

insufficient to prove tortious interference). The only other contractual relationships

that Combined’s petition mentions are Individual Appellants’ employment agreements 

with Combined.9 And, in a pleading filed in the trial court, Combined characterizes its 

claim as inducing Individual Appellants to violate the nonsolicitation provisions of 

those contracts. Thus, we will focus on the question of whether there is evidence that 

Family Heritage interfered with the nonsolicitation covenants in the employment 

agreements.

“The elements of tortious interference with an existing contract are[] (1) the 

existence of a contract subject to interference[,] (2) the occurrence of an act of 

9

Specifically, Combined’s amended petition states that

Family Heritage knew of Combined’s contractual and advantageous 

business relationships between Combined and its employees in that 

Combined informed Family Heritage of [Individual Appellants’] postemployment violations under their Employment Agreements[] and also 

provided a copy of the Employment Agreements. In addition, [Individual 

Appellants] were required to provide a copy of their Employment 

Agreements to Family Heritage at the commencement of their 

employment with Family Heritage, in accordance with ¶19(d).
65

interference that was willful and intentional[,] (3) the act was a proximate cause of the 

plaintiff’s damage[,] and (4) actual damage or loss occurred.” Duradril, L.L.C. v. 

Dynomax Drilling Tools, Inc., 516 S.W.3d 147, 167 (Tex. App.—Houston [14th Dist.] 

2017, no pet.). “[T]o establish the element of a willful and intentional act of 

interference, the plaintiff must produce evidence that the defendant was a more-thanwilling participant and knowingly induced one of the contracting parties to breach its 

obligations under the contract.” Id. at 168; Funes v. Villatoro, 352 S.W.3d 200, 213 (Tex. 

App.—Houston [14th Dist.] 2011, pet. denied) (same); see also, e.g., Browning–Ferris, Inc. 

v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993) (holding that appellant’s conduct did not 

involve knowing inducement as required to establish tortious interference); John Paul 

Mitchell Sys. v. Randalls Food Mkts., Inc., 17 S.W.3d 721, 730–31 (Tex. App.—Austin 2000, 

pet. denied) (stating that it is necessary that there be some act of interference or of 

persuading a party to breach in order for tort liability to arise; merely participating in a 

transaction does not constitute the knowing inducement required to impose liability for 

tortious interference); Davis v. HydPro, Inc., 839 S.W.2d 137, 140 (Tex. App.—Eastland 

1992, writ denied) (stating that plaintiff must show that defendant knowingly induced 

breach; it is not sufficient that defendant reaped the advantages of a broken contract); 

Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768, 803 (Tex. App.—Houston [1st Dist.] 1987, 

writ ref’d n.r.e.) (stating that plaintiff must show that defendant took an active part in 

persuading party to breach contract); Arabesque Studios, Inc. v. Acad. of Fine Arts, Int’l, Inc., 

529 S.W.2d 564, 568 (Tex. App.—Dallas 1975, no writ) (stating that it is incumbent 
66

upon plaintiff to demonstrate that defendant actually caused or brought about 

interference).

Family Heritage characterizes Combined’s basis for its tortious-interference 

claim as being that Family Heritage knew that Individual Appellants were breaching 

their contractual obligations with Combined and took no action to stop them. 

Combined seems to accept this characterization by arguing that Family Heritage ratified

the acts of Individual Appellants as its agents when it retained the benefits of their 

actions after acquiring full knowledge of what they had done. We will address shortly 

why the record supports Family Heritage’s contention that Individual Appellants were

only independent contractors, for whose actions Family Heritage was not responsible. 

But, to the extent that Combined’s argument is a backdoor effort to argue that Family 

Heritage tortiously interfered with Individual Appellants’ employment agreements, it 

fails; the fact that Family Heritage benefitted from a breach of Individual Appellants’

employment agreements with Combined is not sufficient to establish that it knowingly

induced Individual Appellants to breach those agreements.

Family Heritage’s representative testified that Family Heritage was unaware of 

the February 18 meeting until it received a copy of a cease-and-desist letter from 

Combined to Hernandez in early March. The first time that Family Heritage became 

aware of Individual Appellants’ employment agreements was when it received the 

cease-and-desist letter. When Family Heritage received the cease-and-desist letter, it 

investigated the February 18 meeting and found no evidence of solicitation or the 
67

possession of confidential information. After the investigation, Family Heritage did not 

terminate its affiliation with Individual Appellants. But, after receipt of the cease-anddesist letter, Family Heritage stopped appointing former Combined agents as its 

representatives, effectively putting a hold on new affiliations with Individual Appellants’ 

former Combined team members. Later, Family Heritage’s representative testified that 

the halt only occurred because the trial court entered a temporary restraining order.

In essence, Combined argues that the evidence establishes that Family Heritage 

should have known what Individual Appellants were doing and should have moved to 

stop them or terminated their appointments. Family Heritage did not do so and 

allegedly benefitted from Individual Appellants’ actions. To the extent that argument 

is made to support the claim of tortious interference, it fails. Placing Family Heritage

in the status of a beneficiary of the breach is not evidence of the necessary element that 

Family Heritage knowingly induced a breach of Individual Appellants’ Combined 

employment agreements. Thus, an injunction restraining Family Heritage cannot be 

predicated on Combined’s tortious-interference claim.

3. The trial court abused its discretion to the extent that it 

found that the evidence supported a conspiracy claim 

against Family Heritage.

Combined’s conspiracy claim relies on the existence of an underlying tortiousinterference claim to support the conspiracy. Because there is no viable tortiousinterference claim, Combined’s conspiracy claim fails as well. See Nguyen, 2020 WL 

2071757, at *9 (“Further, because conspiracy and aiding and abetting claims depend on 
68

the commission of an underlying tort, the aiding and abetting and conspiracy claims 

against E2 and Southwest, to the extent they are based on Nguyen’s tortious 

interference with his own agreements, must also be dismissed.”).

4. The trial court abused its discretion to the extent that it found 

that Individual Appellants were agents of Family Heritage

and that Family Heritage was vicariously liable for their acts.

As noted, Combined primarily argues that it has a claim against Family Heritage

by asserting that Individual Appellants were Family Heritage’s agents and that Family 

Heritage is vicariously liable for their acts. Combined makes this argument even though 

the marketing agreement that Individual Appellants had signed with Family Heritage

designates them as independent contractors and all Appellants testified that Family 

Heritage did not control Individual Appellants’ business operations. In the face of this 

evidence, Combined’s only bases to contend that Individual Appellants were agents are 

a smattering of provisions of the marketing agreement that governed the relationship

between Family Heritage and Individual Appellants. These provisions do not create 

the agency relationship that Combined contends.

When Individual Appellants became affiliated with Family Heritage, they both

executed a marketing agreement. That agreement unambiguously characterized 

Individual Appellants as independent contractors and enunciated many of the 

responsibilities, benefits, and detriments that accompany that status:

[t]he REPRESENTATIVE, in carrying out the terms of this Agreement, 

will not be obliged to work under the supervision or control of FAMILY 

HERITAGE and will act as an independent contractor of FAMILY 
69

HERITAGE. It is understood and agreed that nothing in this Agreement, 

or otherwise, creates or shall be construed to create the relationship of 

principal and agent, master and servant, or employer and employee 

between FAMILY HERITAGE and the REPRESENTATIVE. It is 

understood that FAMILY HERITAGE does not direct the 

REPRESENTATIVE as to the time and place of the solicitation of 

insurance applications. The REPRESENTATIVE is also treated as an 

independent contractor for purposes of unemployment compensation, 

worker[s’] compensation, income tax withholding[,] and social security. 

To aid the REPRESENTATIVE in complying with state and federal tax 

requirements, FAMILY HERITAGE will provide the 

REPRESENTATIVE with a copy of Form 1099. The 

REPRESENTATIVE will be responsible for all self-employment taxes 

(S.E.C.A.) on the REPRESENTATIVE commissions.

Further, Family Heritage’s representative and Individual Appellants all testified 

that Individual Appellants were independent contractors who (1) were not required to 

take specific training from or to submit any particular reports to Family Heritage; 

(2) received Form 1099s based on their commissions; (3) received no general travel 

reimbursement or retirement benefits, insurance, or vacation benefits from Family 

Heritage; (4) set their own work hours; (5) provided their own office space and 

equipment; (6) received no instruction on how to sell Family Heritage products; and 

(7) were placed in no particular sales territory by Family Heritage. Family Heritage’s 

representative and Individual Appellants also testified that Family Heritage did not 

direct Individual Appellants on how to recruit others to join their teams.

It is axiomatic that a person who retains a true independent contractor is not 

liable for the contractor’s torts. See Farlow v. Harris Methodist Fort Worth Hosp., 284 

S.W.3d 903, 911–12 (Tex. App.—Fort Worth 2009, pet. denied). The distinction 
70

between an employer–employee relationship and that of an independent contractor 

turns on who has the right to control the details of the work done by the contractor. 

Id. “An independent contractor is one who, in pursuit of an independent business, 

undertakes specific work for another using his or her own means and methods without 

submitting to the control of the other person as to the details of the work.” Id. at 911.

When a contract controls the relationship between the parties, that contract 

usually controls the nature of the relationship. But the label of “independent

contractor” used in a contract can be undermined by the terms of the contract itself or 

how the parties operate under it. As our court has explained,

A contract expressly providing that a person is an independent contractor 

is determinative of the relationship absent evidence that the contract is a 

mere sham or subterfuge designed to conceal the true legal status of the 

parties or that the contract has been modified by a subsequent agreement 

between the parties. Evidence that the parties did not intend for an 

independent[-]contractor relationship can come from the contract itself, 

i.e., whether, despite language describing the relationship as an 

independent[-]contractor relationship, other contract language evidences 

such a right of control that the relationship is actually that of employer[–

]employee. It can also come from extrinsic evidence, such as instances of 

actual control by the principal sufficient to show that the true agreement 

of the parties vested a right of control establishing an employment 

relationship. In such cases, the exercise of control is evidentiary only and 

“must be so persistent and the acquiescence therein so pronounced as to 

raise an inference that at the time of the act or omission giving rise to 

liability, the parties by implied consent and acquiescence had agreed that 

the principal might have the right to control the details of the work.”

Id. (citations omitted). In addition to showing an employer–employee relationship, a 

party wishing to impose vicarious liability on the person allegedly controlling the work 
71

must show that “the right to control [] extend[s] to the specific activity from which the 

injury arose.” Id. at 912.

Federal caselaw—particularly caselaw addressing Title VII claims10—often 

analyzes an insurance representative’s status as an employee or an independent 

contractor and is thus helpful in this context.11 Federal courts have looked to the 

following factors in determining whether an insurance representative functions as an 

independent contractor: (1) is the person an insurance professional; (2) did the person 

sign an agency agreement that expressly identified the person as an independent 

contractor; (3) did the insurance company supervise the person’s day-to-day activities; (4) 

did the person work out of an independent office, hire assistants, and pay all office-related 

expenses, including assistant’s salaries, rent, utilities, furniture, and supplies; (5) is the 

person subject to any formal hour or leave policies; (6) is the person paid exclusively by 

commission and responsible for paying self-employment taxes and not entitled to

employee benefits; and (7) is the person free to terminate his or her contract at will. See 

10Title VII of the Civil Rights Act of 1964 addresses employment discrimination 

claims. Quantem Chem. Corp. v. Toennies, 47 S.W.3d 473, 478 (Tex. 2001). Title VII 

protects employees, not independent contractors. Johnson v. Scott Fetzer Co., 124 S.W.3d 

257, 263 (Tex. App.—Fort Worth 2003, pet. denied). Thus, cases involving Title VII 

provide tests such as the hybrid economic realities/common law control test, which we 

discuss below, and give us guidance on how to distinguish between an employee and 

an independent contractor. Id.

11“Although we are not bound by federal authority, we may rely on it as 

persuasive.” City of Carrollton v. Singer, 232 S.W.3d 790, 797 n.6 (Tex. App.—Fort Worth 

2007, pet. denied).
72

Wortham v. Am. Fam. Ins. Grp., 385 F.3d 1139, 1140–41 (8th Cir. 2004) (utilizing test to

determine if person were employee for purposes of age discrimination complaint under 

Title VII, among other federal statutes).

Family Heritage suggests that we use the “hybrid economic realities/common 

law control test” that the Fifth Circuit uses to decide whether an insurance 

representative is an independent contractor for purposes of Title VII claims. See CraftPalmer v. State Farm Ins. Co., No. 98-60008, 1998 WL 612388, at *1 (5th Cir. Aug. 27, 

1998) (not designated for publication). To make that determination, the Fifth Circuit

used factors similar to those outlined in the preceding paragraph to determine that a 

representative was not an employee and held that

[u]nder [appellant’s] contract with [appellee], she is repeatedly designated 

as an independent contractor rather than an employee. [Appellee]

controls no details of the manner or means in which she executes her 

business, runs her office, determines her work schedule or clients, or hires 

or fires employees. The fact that [Appellee] furnishes insurance forms, 

provides life insurance and major medical insurance, can accept or reject 

a prospective policy[]holder, and required her to be an exclusive agent are 

minor matters and not determin[a]tive. Other courts have uniformly held, 

in circumstances less compelling than those before us, that independent 

insurance agents are not as a matter of law “employees” for Title VII 

purposes.

Id.

Combined does not challenge the application of the Fifth Circuit’s hybrid test

that Family Heritage offers to gauge whether Individual Appellants were independent 

contractors, and Combined does not offer a test of its own. The evidence that we have 

outlined of the relationship between Individual Appellants and Family Heritage tracks 
73

the factors that the cited federal cases have relied on to conclude that a representative 

is an independent contractor in an insurance sales context. Individual Appellants 

(1) were insurance professionals; (2) signed agreements with Family Heritage that 

expressly identified them as independent contractors; (3) performed day-to-day 

activities without supervision from Family Heritage; (4) worked out of their own 

independent offices, set their own hours, and paid their own expenses; (5) were not 

subject to any formal vacation or leave policies; (6) were paid exclusively by 

commission, were responsible for paying their own self-employment taxes, and were 

not entitled to employee benefits; and (7) were free to terminate their contracts with 

Family Heritage at will. Thus, the evidence indicates that Individual Appellants are

independent contractors.

Combined’s only challenge to the status of Individual Appellants as independent

contractors highlights a few provisions of their marketing agreements. With little 

explanation, Combined relies on these few provisions to argue that a fact issue exists 

regarding whether Individual Appellants were indeed independent contractors. The 

entirety of Combined’s argument is that

Family Heritage’s control over its agents extends to forbidding them from 

selling any products other than Family Heritage products. Agents who 

violate this rule may be stripped of their commissions. Violating this rule 

is also grounds for termination. Hence, on pain of termination, Family

Heritage agents are allowed to sell only Family Heritage supplemental 

health and life insurance policies[] and nothing else.
74

Family Heritage requires its agents to sign a “Marketing 

Agreement” that contains a confidentiality clause, covenant not to 

compete[,] and covenant not to solicit Family Heritage agents.

Family Heritage requires its agents, in interacting with prospective 

policyholders, to “strictly” comply with “the written and printed 

instructions of Family Heritage.”

Family Heritage has authority to reject any application produced by 

an agent without specifying a reason.

Finally, while Family Heritage agents are expected to recruit others 

to be agents for Family Heritage, the recruits may not sell Family Heritage 

policies until they are approved by Family Heritage. [Record references 

omitted.]

Taking each argument in turn, Combined’s first contention turns on the 

argument that a representative who is a captive—in that he or she cannot sell insurance 

for anyone other than Family Heritage—creates a fact question regarding whether the 

person is actually an independent contractor. However, one federal court has explained 

that captive status does not make a representative an employee because “[d]espite the 

constraints imposed on Plaintiffs’ ability to sell insurance for competing companies, 

their compensation from Defendant depends entirely on their sales.” Desimone v. Allstate 

Ins. Co., Nos. C 96-03606 CW, C 99-02074 CW, 2000 WL 1811385, at *14 (N.D. Cal. 

Nov. 7, 2000) (order denying plaintiffs’ motion and granting defendant’s cross-motion 

for summary judgment on certain causes of action). Thus, Combined’s assumption that 

Individual Appellants’ status as captive agents prevents them from independentcontractor status is incorrect.
75

Combined cites no authority or explanation for its second argument that the 

presence of noncompete, nonsolicitation, and confidentiality provisions turn an 

independent contractor into an employee. Courts frequently see noncompete, 

nonsolicitation, and confidentiality clauses contained in contracts with independent 

contractors; this is not uncommon and does not alter an individual’s status as an 

independent contractor. See RigUp, Inc. v. Sierra Hamilton, LLC, 613 S.W.3d 177, 185

(Tex. App.—Austin 2020, no pet.); Cobb v. Caye Publ’g Grp., Inc., 322 S.W.3d 780, 782 

(Tex. App.—Fort Worth 2010, no pet.).

Combined’s third argument—that a representative must comply with Family 

Heritage’s instructions—apparently refers to a provision in the marketing agreement 

that states that

[t]he REPRESENTATIVE and any person representing or employed by 

him shall make regarding insurance no representation of fact which is not 

strictly consistent with the written and printed instructions of FAMILY 

HERITAGE, and shall not pretend in any manner whatsoever to change 

or waive the terms of any instruction or policy contract issued by 

FAMILY HERITAGE.

The fact that Family Heritage does not want its product misrepresented to a 

policyholder is hardly the level of control creating an employer–employee relationship.

Nor is the fact that Family Heritage must decide whether it will accept an 

application. Again, Combined does not explain how the fact that Family Heritage

decides whether to issue a policy constitutes control in how the representative markets 

a policy or hires the agents who work for the independent contractor.
76

Finally, Combined claims that Family Heritage has control because Family 

Heritage approves the nomination of a new agent when the new agent is nominated by 

an existing agent. This argument ignores the nature of the approval process, which 

Family Heritage’s representative described as “[o]nce you’re appointed by the state and 

have a license from the Department of Insurance, you know, and they meet our criteria 

in terms of [a] background check, you know, yes.” Again, the fact that Family Heritage 

wants to ensure that a representative is legally licensed to sell its product and is of 

appropriate character does not manifest a level of control over the discretion of the 

representative in the details of recruiting his or her sales force.

Moreover, Combined’s arguments have a more basic failing. As we noted, for 

vicarious liability to arise in the context of an independent contractor, “the right to 

control must extend to the specific activity from which the injury arose.” See Farlow, 

284 S.W.3d at 911–12. Combined does not explain how the various aspects of 

“control” that it mentions raise a material fact issue that Family Heritage controlled 

how its affiliated representatives selected representatives for their sales teams. The only 

argument that comes close to showing control is the process of determining whether 

an agent nominated by another agent is licensed and passes a background check. That 

is not a level of control that supports a finding that Family Heritage controlled the 

independent contractor’s decision to appoint agents who might have worked for a 

competing company.
77

The management agreement that Individual Appellants entered into with Family 

Heritage categorizes them as independent contractors. The testimony shows that they 

operated their businesses as independent contractors. None of the contentions that 

Combined raises move us to sustain its argument that there was a fact issue on the 

question of whether Individual Appellants’ representatives were employees or agents

rather than independent contractors.

We sustain Family Heritage’s first issue and hold that the trial court abused its 

discretion by enjoining Family Heritage. With this resolution of Family Heritage’s first 

issue, we need not address Family Heritage’s second issue that attacks the form of the 

injunction order. See Tex. R. App. P. 47.1.

V. Conclusion and Relief Granted

Having sustained Family Heritage’s first issue, we vacate the portion of the

injunction order that restrains Family Heritage and dissolve the temporary injunction 

as to Family Heritage.

With regard to Individual Appellants’ issues, the trial court did not abuse its 

discretion by finding that the covenants at issue are reasonable and that Combined

demonstrated a probable right to relief. The trial court did not abuse its discretion by 

finding that Individual Appellants induced or solicited Combined’s policyholders and 

employees. Finally, the trial court did not abuse its discretion by finding that Combined 

would probably suffer an imminent and irreparable injury. Thus, having overruled 
78

Individual Appellants’ sixth, seventh, eighth, and ninth issues, we affirm these aspects 

of the trial court’s findings and injunction order.

But having mostly sustained Individual Appellants’ first, third, and fourth issues 

that challenge the form of the injunction order, we reverse and remand the trial court’s 

injunction order only as to form. And, because we are remanding, we leave the 

resolution of Individual Appellants’ fifth issue to be dealt with on remand by the trial 

court.

Though we have the discretion to modify an injunction that is overly broad or 

vague, we lack the information necessary to do so in this case. Compare Bellefeuille, 2016 

WL 1163364, at *8 (“We have the discretion to modify an injunction that is overly broad 

or vague, if possible.”), with Cooper Valves, LLC, 531 S.W.3d at 267 (remanding case to 

trial court when appellate court concluded that plaintiff had shown probable right to 

relief but form of injunction violated Rule 683 because it was vague and overbroad). 

Therefore, with respect to paragraphs 19.a., b., c., and d. of the portion of the injunction

order that restrains Individual Appellants, we remand this case to the trial court for 

further proceedings consistent with this opinion.

/s/ Dabney Bassel

Dabney Bassel

Justice

Delivered: February 11, 2021