DAVIS, Justice.
Bobby C. Stone, Individually ("Stone") and Brent Wade Jones, Individually and D.B.A. East Texas Telecom ("Jones") (collectively "Appellants") appeal the trial court's order granting a temporary injunction in favor of Appellee, Griffin Communications and Security Systems, Inc. ("Griffin").
BACKGROUND
Griffin sells, installs, repairs, maintains and monitors communication and security systems throughout a twenty-two county area in East Texas. Griffin has been in the telephone and security business for over fifteen years, and during such time, has developed a large customer base consisting of approximately 1500 accounts of both businesses and individuals. Griffin has written service agreements with each of its customers whereby Griffin agreed to maintain their telephone and security systems.
During the time in which it has been in business, Griffin has developed a customer data base consisting of each customer's individual needs and details regarding the customer's equipment. The information contained in Griffin's database is compiled by Griffin based on its interaction with its customers and is not freely available to the public.
Jones and Stone were hired by Griffin in 1998. Subsequently, On October 12, 1998, Jones and Stone, each entered into an employment contract with Griffin. Each of the employment agreements (the "1998 contracts") stated that "the employment of the Employee shall continue only as long
On January 1, 1999, Appellants each executed subsequent, twelve-month, written employment agreements with Griffin (the "1999 contracts"). The 1999 contracts expressly supercede all other agreements between the parties, but are substantially the same as the 1998 contracts.
Jones resigned his employment with Griffin in August 2000. Stone resigned in October 2000. Subsequently, Jones began operating his own business, known as East Texas Telecom, which engaged in the selling, leasing, installation and maintenance
Griffin filed suit to enforce the provisions of the non-competition agreement and filed an application for temporary injunction. Following an evidentiary hearing, the trial court granted Griffin's application for temporary injunction and ordered that Appellants be enjoined from:
STANDARD OF REVIEW
A trial court has great discretion in granting or denying a temporary injunction and we will not disturb the trial court's ruling absent a clear abuse of discretion. See Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978), reversed on other grounds, Davis v. Huey, 620 S.W.2d 561 (Tex.1981); see also Burgess v. Permian Court Reporters, Inc., 864 S.W.2d 725, 727 (Tex.App.—El Paso 1993, writ dism'd w.o.j.). We must draw all legitimate inferences from the evidence in a light most favorable to the trial court's order. See Burgess, 864 S.W.2d at 727. An abuse of discretion does not exist when the trial court bases its decision on conflicting evidence. See Davis, 571 S.W.2d at 862. A trial court abuses its discretion in this area only when the record reflects that the findings necessary to support the order are not supported by some evidence of a substantial and probative character. See Burgess, 864 S.W.2d at 727.
DISCUSSION
In their first seven issues, Appellants contend that the trial court erroneously granted the temporary injunction against them because the covenant not to compete did not meet the criteria set forth in Section 15.50 of the Texas Business and Commerce Code. Section 15.50 states:
TEX. BUS. & COM.CODE ANN. § 15.50(a) (Vernon Supp.2001).
Appellants contend that the covenant not to compete in the instant case is not ancillary to an otherwise enforceable agreement because Appellants were at-will employees, and thus, any consideration for Appellants to sign the employment contract was illusory. Consideration for a promise, by either the employee or the employer in an at-will employment context, cannot be dependent on a period of continued employment. See Light v. Centel Cellular Co. of Texas, 883 S.W.2d 642, 644-45 (Tex.1994) (emphasis added). However, Griffin contends that its employment relationship with Appellants was not at-will, but rather, was terminable by Griffin only if Griffin determined that Appellants' work was not satisfactory. Griffin further contends that the promise of continued employment under such circumstances is adequate consideration for the employment agreement.
In order to determine the nature of the relationship between Griffin and Appellants, we need look no further than the contracts, which were introduced as evidence at the hearing on Griffin's application for temporary injunction. Although Article 5 of the contracts sets forth circumstances which will result in termination,
Appellants argue that since the satisfactory nature of Appellants' services was left to Griffin's sole discretion, the employment relationship was at-will. In Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 659 (Tex. App.—Dallas 1992, no writ), the Dallas Court of Appeals dealt with such a scenario. In its analysis, the Court stated:
Harthcock, 824 S.W.2d at 659.
We find the logic espoused by the Court in Harthcock persuasive and adopt it for the purposes of our analysis of the case at hand. The language of the satisfaction clause at issue in the present case is nearly identical to the clause in Harthcock. Id. at 658. Thus, for the reasons set forth above, we conclude, that the language of the contracts constitutes sufficient evidence to support the trial court's finding that Appellants' respective employments were not terminable at-will, but rather, were terminable only on the occasion of Griffin's bona fide dissatisfaction or cause for discharge. Id. at 659. Having concluded that Appellants' employment by Griffin was not at-will, we further conclude that there was sufficient evidence to support the trial court's finding that the contracts were based on adequate consideration. See Currie v. International Telecharge, Inc., 722 S.W.2d 471, 475 (Tex. App.—Dallas 1986, no writ), citing Garcia v. Laredo Collections, Inc., 601 S.W.2d 97, 98-99 (Tex.Civ.App.—San Antonio 1980, no writ) ("Texas courts have held that continued employment is sufficient consideration for a covenant not to compete").
Appellants next contend that the trial court erred in finding that restrictions as to time, scope and geographic location set forth in the covenants not to compete were reasonable pursuant to Section 15.50. We will sustain Appellants' contention only if the record reflects that the findings necessary to support the order are not supported by some evidence of a substantial and probative character. See Burgess, 864 S.W.2d at 727.
First, we consider the reasonableness of the scope of the agreement. Our determination is governed by (1) whether the restriction is greater than necessary to protect the business and goodwill of the employer, (2) whether the employer's need for protection outweighs the economic hardship which the covenant imposes on the departing party, and (3) whether the restriction adversely affects the interests of the public. See Peat Marwick Main & Company v. Haass, 818 S.W.2d 381, 386 (Tex.1991). The restrictive covenant must bear some relation to the activities of the employee and must not
In the instant case, at the hearing on Griffin's application for temporary injunction (the "hearing"), Toby Ben Griffin ("T.B. Griffin"), the president of Griffin, testified that the nature of Griffin's business was related to the selling, leasing, installation and maintenance of security systems. T.B. Griffin further testified that Appellants had gained substantial knowledge, training and experience in selling, leasing, installing and maintaining of security and telephone systems during the period of their employment. The record reflects that Griffin had been in business for fifteen years and, during such time, had developed a unique customer base. The record further reflects that, during their employment by Griffin, Appellants gained access to information regarding Griffin's customers and had received knowledge about the specific equipment possessed and operated by each of Griffin's customers. Specifically, Jones testified that he learned the identity of Griffin's customers, where they were located, and the type of equipment that they were utilizing. Moreover, T.B. Griffin testified regarding Appellants' training. He testified that either he or another experienced technician would accompany new employees for an extended period of time giving them on-site training. The record further reflects that Griffin's employees were provided the opportunity to attend industry-specific schools and training sessions at Griffin's expense.
The covenant not to compete at issue restricts Appellants from (1) engaging in the selling or leasing of security systems, or related equipment, (2) soliciting any customer of Griffin on whom the Appellants called or with whom they became acquainted during the term of employment, and (3) disclosing the names and addresses or any other information pertaining to Griffin customers. Our review of the record reveals that there was some probative evidence that the scope of the agreement was limited to the scope of the business engaged in by Griffin, namely, the selling and leasing of security systems. Contrary to Appellants contentions, the covenant does not impose industry-wide restrictions as it does not prevent them from performing installation or maintenance of systems, so long as they do not sell or lease such systems. Moreover, the non-solicitation clause does not prevent Griffin customers from contacting Appellants for services, so long as Appellants do not solicit business from such customers. Further, the non-solicitation portion of the agreement properly relates only to such customers with whom Appellants had contact while they were employed by Griffin. See, e.g., John R. Ray & Sons, Inc. v. Stroman, 923 S.W.2d 80, 85 (Tex.App.— Houston [14th Dist.] 1996, writ denied). We conclude that there was some probative evidence to allow the trial judge to conclude that the restraint created was not greater than necessary to protect Griffin's legitimate interests. We further conclude that there was evidence to support the trial court's finding that the necessity of the restraint created was not outweighed by the hardship to the promisor or injury to the public. Thus, we hold that the covenant not to compete was reasonable as to the scope of activity restrained.
However, while the testimony adduced at trial generally tends to support the scope of the covenant not to compete, we note that the temporary injunction entered by the trial court imposes more restrictions than those set forth in the covenant not to compete. Specifically, the trial court's temporary injunction also prevents
We next turn to the question of whether the geographic restriction in the covenant not to compete is reasonable. Texas courts have generally held that a geographical limitation imposed on the employee which consists of the territory within which the employee worked during his employment is a reasonable geographical restriction. See Evan's World Travel, Inc. v. Adams, 978 S.W.2d 225, 232-33 (Tex. App.—Texarkana 1998, no writ), citing Property Tax Assocs., Inc. v. Staffeldt, 800 S.W.2d 349, 351 (Tex.App.—El Paso 1990, writ denied); Diversified Human Resources Group, Inc. v. Levinson-Polakoff, 752 S.W.2d 8, 12 (Tex.App.—Dallas 1988, no writ); Justin Belt Co. v. Yost, 502 S.W.2d 681, 685 (Tex.1973). In the instant case, the 1999 contracts, which expressly supercede the 1998 contracts, restrict Appellants from conducting certain activities in twenty-two counties located in East Texas. Our review of the record reveals that T.B. Griffin testified that Griffin conducted business in each of these counties. Jones further testified that he, on behalf of Griffin, provided services for persons or business located in the counties restricted by the covenant not to compete in the 1999 contracts. Neither Appellant testified that he worked only in certain counties covered by the 1999 contracts, exclusive of other such counties. Therefore, since the covenant not to compete contained geographical restrictions which were consistent with the area in which Griffin conducted business while Appellants were employed by Griffin, and the record contained uncontradicted
Finally, we consider whether the five-year restriction contained in the covenant not to compete is reasonable. Appellants cite Stroman in support of their contention that a five-year limitation has been held unreasonable. Although the covenant in Stroman contained a five-year restriction, such a five-year restriction was not found to be unreasonable. See Stroman, 923 S.W.2d at 85. Rather, the Houston Court of Appeals concluded that another restriction of the covenant not to compete was unreasonable because it was unlimited as to time.
In its final issue, Appellants contend that the trial court erred in setting the bond for an amount that was insufficient to protect Appellants' respective interests. The appellate courts determine the adequacy of the bond set by the trial court on a case-by-case basis after reviewing the record before them. See Currie, 722 S.W.2d at 475, citing Johnston v. American Speedreading Academy, Inc., 526 S.W.2d 163, 167 (Tex.Civ.App.—Dallas 1975, no writ). As a general rule, the amount of the bond required on the issuance of a temporary injunction rests within the sound discretion of the trial court and will not be disturbed on appeal in the absence of an abuse of discretion. See Currie, 722 S.W.2d at 475. In the case at hand, the record furnishes no reliable information which would guide us in setting the proper amount of the bond. Appellants
As set forth above, because we have concluded that the scope of activity restricted by the temporary injunction exceeds the restrictions contemplated in the covenants not to compete, we order that the language in the temporary injunction located on page 2, paragraph (c) be reformed to limit the scope of activity as follows:
The trial court's order granting injunctive relief as reformed is
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