Gensco, Inc. v. Thomas, 16333

• Citation: 609 S.W.2d 650
• Decision Date: 17 December 1980
• Docket Number: No. 16333,16333
• Parties: GENSCO, INC., Appellant, v. William F. THOMAS et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 650

609 S.W.2d 650

GENSCO, INC., Appellant, v. William F. THOMAS et al., Appellees.

No. 16333.

Court of Civil Appeals of Texas, San Antonio.

Dec. 17, 1980.

Eugene B. Labay, Cox, Smith, Smith, Hale & Guenther, San Antonio, Phillip M. Hughes, Crawford, Crawford & Hughes, Uvalde, for appellant.

George H. Spencer, Clemens, Spencer, Welmaker & Finck, San Antonio, Nichols & Taliaferro, Uvalde, for appellees.

CADENA, Chief Justice.

Gensco, Inc., (Gensco), plaintiff below, appeals from a judgment sustaining special exceptions to its first amended original petition, refusing to modify a previous order enjoining defendants, William F. Thomas and Joy Pipe, Inc., from competing with plaintiff, and finding that defendants were not in contempt of court because of their violation of the terms of such injunction.

Plaintiff originally filed suit seeking to enjoin defendants from breaching a noncompetition agreement contained in a contract of employment. After a temporary restraining order had been granted, the parties agreed on the entry of an order enjoining defendants from competing with plaintiff in Texas, Oklahoma, New Mexico, Colorado, Wyoming, Kansas, Missouri, Louisiana and Alabama for a period of three and one-half years.

Almost three months after the entry of the agreed order, plaintiff filed a motion urging that defendants be held in contempt for violating the terms of the agreed order. This motion was subsequently amended to include a prayer that the trial court broaden the terms of the agreed order. The trial court denied all relief prayed for by plaintiff, holding that the agreed order was a final judgment for a permanent injunction and that defendants had not knowingly violated the terms of such order.

Plaintiff's points of error four through seventeen embody complaints concerning the failure of the trial court to hold defendants in contempt. These points must be overruled, since the decision of a trial court in contempt proceedings is not appealable. Ex parte Cardwell, 416 S.W.2d 382, 384 (Tex.1967); Hamborsky v. Hamborsky, 497 S.W.2d 405, 406 (Tex.Civ.App. San Antonio 1973, no writ).

The trial court correctly refused to modify the previous agreed order. The agreed order in this case recites that the temporary restraining order previously granted is modified and continued in force as an injunction against defendants for a period of three and one-half years, at the expiration of which period it shall dissolve automatically. The order contains no recital or intimation that the injunction granted has as its purpose the maintenance of the status quo pending a final determination of the case on the merits.

The true character of an injunction is to be determined by its characteristics and functions. Whether an injunction is to be classified as temporary or permanent is determined by looking to the substance of the order. Conway v. Irick, 429 S.W.2d 648, 649 (Tex.Civ.App. Fort Worth 1968, writ ref'd); Owens v. Coker, 368 S.W.2d 777, 778 (Tex.Civ.App. Beaumont 1963, no writ).

The purpose of a temporary injunction is to preserve the status quo pending a final hearing on the merits. Conway v. Irick, supra, at 649. A permanent injunction is not dependent on any further action by the trial court and is characterized by the fact that it...