Loomis Intern., Inc. v. Rathburn

Decision Date10 October 1985
Docket NumberNo. 13-84-383-CV,13-84-383-CV
Citation698 S.W.2d 465
PartiesLOOMIS INTERNATIONAL, INC., Appellant, v. Lloyd E. RATHBURN and Bruno Dale Wisnieski, Appellees.
CourtTexas Court of Appeals

Douglas W. Sanders, Houston, Paul Webb, Wharton, for appellant.

D. Craig Oliver, Houston, for appellees.

Before SEERDEN, UTTER and KENNEDY, JJ.

OPINION

SEERDEN, Justice.

This is an appeal from an order denying appellant's application for temporary injunction.

Appellant brought this suit against two former employees for alleged violations of employment agreements. The agreements, identical in terms and executed by each appellee, provided that the employee should not engage in the type of business conducted by appellant within the geographical limits described for a period of two years immediately following termination of the employment contract. In addition, the agreements prohibited appellees from disclosing or using any trade secrets, technical or business information acquired from the company after termination of the employment relationship.

A hearing was held on the question of the propriety of granting a temporary injunction pending final disposition of the claim for a permanent injunction and damages. At the conclusion of appellant's case and upon motion by appellees, the trial court denied all requested temporary relief.

In its findings of fact and conclusions of law, the trial court found that appellees were employed as operators in Loomis' pipe testing business beginning on August 25, 1980 and November 1, 1982, respectively; that at the beginning of their employment they entered into the written employment agreements alleged; that they resigned their employment with appellant while working from its El Campo office on February 20, 1984 and March 14, 1984, respectively; and that thereafter, they began working with Redneck Testers, a competitor of appellant. No challenge is made to these findings.

In its conclusions of law, the trial court found that the two-year period of non-competition set forth in the agreements was reasonable but that the 500 mile radius described in such contracts was not reasonable. Conclusion of law number 3 is, "[t]he Plaintiff (Loomis) failed to show irreparable injury if the Temporary Order was denied in that the Defendants' (appellees) employment duties for Plaintiff or Redneck were not of a sensitive or confidential nature, but merely operational."

In its first six points of error, appellant asserts that the trial court abused its discretion in denying the temporary injunction because the evidence clearly demonstrates appellant was entitled to such relief and the relief requested was reasonable.

Appellant's reply brief raises questions concerning the scope of our review in this matter. It contends that the trial court rejected proposed findings of facts submitted by appellees and that this Court is bound to consider the rejected findings against appellees.

Included in the transcript are numerous proposed findings of fact which appellant claims were submitted by appellees for adoption by the court. Our review of these documents does not reveal who submitted them to the trial court. No markings indicate they were filed, although the Clerk has certified that they are part of the proceedings in this case. The documents are entitled "Findings of Fact and Conclusions of Law" and "Amended Findings of Fact and Conclusions of Law." They contain 49 and 62 specific items of either affirmative or negative findings. They are not signed by either the judge or the attorneys for either of the parties. Appellant contends that instead of entering any or all of these proposed findings, the trial court made its own findings. Appellant argues that by so doing, the court rejected all the matters set out in the 111 items listed in the two documents under discussion. Even if we could assume that appellant's version of how these documents came into the record is correct and that the trial judge took the action related by appellant, it does not follow that the inaction of the trial judge is tantamount to a rejection of every fact or inference contained in such documents. We believe the statement quoted by appellant from Wallen v. State, 677 S.W.2d 789, 790 (Tex.App.--Austin 1984, no writ) that "The trial court's refusal to make the requested findings must be treated as implied findings against Wallen's contentions," has no application to our case. In Wallen, there were only two requested findings and they were on factual matters which involved no judgment or discretion. In addition, Wallen was a suit to recover unpaid taxes, a type of action where the trial court is required to make findings of fact when requested to do so, TEX.R.CIV.P. 297. In an appeal from an interlocutory order, the trial court is authorized, but not required, to make findings of fact and conclusions of law. Humble Exploration Co. v. Fairway Land Company, 641 S.W.2d 934, 937 (Tex.App.--Dallas 1982, writ ref'd n.r.e.). There are many reasons why the trial court could refuse to make the specific findings under consideration here. The most obvious is stated above. He is not required to do so. In addition, many of the matters involved are evidentiary and not conclusive or ultimate issues. Ultimate and controlling issues are the only ones upon which a trial court is ever required to make findings. Lettieri v. Lettieri, 654 S.W.2d 554, 556 (Tex.App.--Ft. Worth 1983, writ dism'd); Jackson v. Jackson, 552 S.W.2d 630, 633 (Tex.Civ.App.--Austin 1977, no writ).

In injunction cases, the better rule is that the Court of Appeals is not limited to either the trial court's stated reasons or its findings of fact and conclusions of law when reviewing the appropriateness of the trial court's ruling. Erickson v. Rocco, 433 S.W.2d 746 (Tex.Civ.App.--Houston [14th Dist.] 1968, writ ref'd n.r.e.). In fact, the scope of review is clearly set out in Erickson, as follows:

In an appeal from a judgment granting or denying a temporary injunction, the Appellate Court is required to review the evidence, and to draw legitimate inferences from the facts in evidence, in the light most favorable to the trial court's judgment. If such a review of the evidence will support any findings of fact that would in turn, support the trial court's judgment, those findings are implied in the judgment itself. (see cases cited in opinion).

433 S.W.2d at 750.

See also Corpus Christi Classroom Teachers Association, et al. v. Corpus Christi Independent School District, et al., 535 S.W.2d 429 (Tex.Civ.App.--Corpus Christi 1976, no writ).

The applicant seeking the temporary injunction has the burden to establish a probable right to prevail on the merits and probable irreparable injury. Ben Wheeler Independent School District v. County School Trustees of Van Zandt County, 414 S.W.2d 477, 479 (Tex.Civ.App.--Tyler 1967, writ ref'd n.r.e.). Temporary injunctions are not issued on mere surmise, therefore, if an applicant has not discharged his burden of establishing probable injury, he is not entitled to the extraordinary relief he seeks. Hallmark Personnel of Texas, Inc. v. Franks, 562 S.W.2d 933, 936 (Tex.Civ.App.--Houston [1st Dist.] 1978, no writ). A judgment granting or denying a temporary injunction will not be reversed unless the appellate court is convinced that the trial court's ruling constitutes a clear abuse of discretion. Sun Oil Company v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968); Diesel Injection Sales & Service v. Renfro, 656 S.W.2d 568, 571 (Tex.App.--Corpus Christi 1983, writ ref'd n.r.e.). Based on the record before us, we cannot say that the trial court abused its discretion in denying Loomis' application for temporary injunction.

The evidence at the hearing in this case showed that the owner of Redneck Testers, the company by which each of appellees were employed at the time of the hearing, was the former president of appellant. He was not bound by a non-competition agreement. At least one other Loomis ex-employee was employed by Redneck and was not bound by a non-competition agreement. We find that there is sufficient evidence in the record to justify the trial court's...

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7 cases
  • Roberts v. Roberts
    • United States
    • Texas Court of Appeals
    • 30 Junio 1999
    ...issues. Dura-Stilts Company v. Zachry, 697 S.W.2d 658 (Tex.App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.); Loomis International, Inc. v. Rathburn, 698 S.W.2d 465 (Tex.App.--Corpus Christi 1985, no writ); Lettieri v. Lettieri, 654 S.W.2d 554 (Tex.App.--Fort Worth 1983, writ Special probl......
  • Deutsch v. Hoover, Bax & Slovacek, L.L.P.
    • United States
    • Texas Court of Appeals
    • 27 Noviembre 2002
    ...full trial merely because some evidence supports plaintiff's claim, if trial judge does not credit that evidence); Loomis Int'l, Inc. v. Rathburn, 698 S.W.2d 465, 469 (Tex. App.CCorpus Christi 1985, no writ) (same, with respect to temporary injunction hearing); see also Kline v. O'Quinn, 87......
  • Deutsch v. Hoover, Bax & Slovacek, L.L.P
    • United States
    • Texas Court of Appeals
    • 27 Noviembre 2002
    ...full trial merely because some evidence supports plaintiff's claim, if trial judge does not credit that evidence); Loomis Int'l, Inc v. Rathburn, 698 S.W.2d 465, 469 (Tex.App.-Corpus Christi 1985, no writ) (same, with respect to temporary injunction hearing); see also Kline v. O'Quinn, 874 ......
  • Interest of Davis
    • United States
    • Texas Court of Appeals
    • 12 Octubre 2000
    ...relate to ultimate or controlling issues. Roberts v. Roberts, 999 S.W.2d 424, 434 (Tex. App.-El Paso 1999, no pet.); Loomis Int'l, Inc. v. Rathburn, 698 S.W.2d 465, 467 (Tex. App.-Corpus Christi 1985, no writ); Dura-Stilts Co. v. Zachry, 697 S.W.2d 658, 661 (Tex. App.-Houston [1st Dist.] 19......
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2 books & journal articles
  • Table of Cases
    • United States
    • ABA General Library Guide to Protecting and Litigating Trade Secrets
    • 27 Junio 2012
    ...(3d Cir. 1988), 147 Loewen Group Int’l, Inc. v. Haberichter, 912 F. Supp. 388 (N.D. Ill. 1996), 117n11 Loomis Int’l, Inc. v. Rathburn, 698 S.W.2d 465 (Tex. Civ. App. 1985), 168 Los Angeles, City of, v. Lyons, 461 U.S. 95 (1983), 169 Lucente v. Int’l Bus. Mach. Corp., 75 F. Supp. 2d 169 (S.D......
  • Remedies for Trade Secret Misappropriation
    • United States
    • ABA General Library Guide to Protecting and Litigating Trade Secrets
    • 27 Junio 2012
    ...owners is the argument that injunctive relief will deprive the defendant of necessary income. See e.g., Loomis Int’l, Inc. v. Rathburn, 698 S.W.2d 465, 468 (Tex. Civ. App. 1985) (upholding denial of injunction because “any harm to the [plaintiff] would be slight in comparison to the harm of......

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