Arevalo v. Velvet Door, Inc.

• Decision Date: 03 April 1974
• Docket Number: No. 6376,6376
• Citation: 508 S.W.2d 184
• Parties: Carmen AREVALO, Appellant, v. VELVET DOOR, INC., Appellee.
• Court: Texas Court of Appeals

Page 184

508 S.W.2d 184

Carmen AREVALO, Appellant, v. VELVET DOOR, INC., Appellee.

No. 6376.

Court of Civil Appeals of Texas El Paso.

April 3, 1974.

Rehearing Denied April 24, 1974.

Peticolas, Luscombe, Stephens & Windle, Wayne E. Windle, Jr., El Paso, for appellant.

Grambling, Mounce, Deffebach, Sims, Hardie & Galatzan, Sam Sparks, Malcolm Harris, El Paso, for appellee.

OPINION

PRESLAR, Chief Justice.

This appeal is from an order of the trial Court granting Appellee, Velvet Door, a temporary injunction enjoining its former employee, Appellant, from violating her covenant not to compete with Appellee's beauty shop within a radius of five miles for a period of three years following the termination of her employment. We are of the opinion that the order should be affirmed.

The pertinent facts are that Appellant was employed by Appellee as a beauty operator and had been for a number of years prior to her signing the contract in question in May of 1971, and she continued to be so employed for some two and a half years after the signing of the contract. Appellant left the employment of Appellee and almost immediately went to work for another shop within a five mile radius, and solicited her former patrons to join her at her new place of employment. There is no contention that the time or space limitation is unreasonable. Questions are presented as to the adequacy of the proof to show a probable right of recovery and probable injury, and Appellant urges that the agreement was without consideration and that the Appellee came to Court with unclean hands. In our determination of this matter, we will be governed by the rules laid down by the Supreme Court of Texas in Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549 (1953), wherein the Court held in part as follows:

'In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S .W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, Sec. 5, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant's bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v . International Moulders & Foundry Workers' Union, Tex.Sup., 248 S.W .2d 460, 462. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound...