No. 01-98-01335-CV
Opinion issued August 5, 1999. Do not Publish. Tex.R.App.P. 47.
On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 98-06888.
Panel consists of Chief Justice Schneider and Justices Hedges and Andell.
ERIC ANDELL, Justice.
Appellants, Troy Allen Yoakum and AIT, Inc., bring this accelerated, interlocutory appeal asking this Court to vacate a temporary injunction issued by the trial court. We affirm.
Facts
Appellee, Eagle USA Air Freight, Inc., is a freight forwarding company based in Houston. AIT, a freight forwarding company based in Chicago, is one of its principal competitors. AIT has hired a number of former Eagle employees. When he was hired in 1994 as a salesman for Eagle, Yoakum signed an agreement in which he promised not to disclose confidential Eagle information. Yoakum worked for Eagle for a number of years. In the final six months of his employment, his performance began to deteriorate, and his relationship with the company was poor. In August 1998, Yoakum left Eagle to work for AIT as a salesperson; he continued to be based in Houston. Yoakum evidently persuaded several Eagle customers with whom he had worked to switch their accounts from Eagle to AIT. From August to October 1998, AIT's average monthly revenue from three of these new accounts — Igloo, Mitsubishi, and Nutrition for Life — was $156,995. By contrast, in August, AIT had earned no revenue from Mitsubishi and only $7,600 from Nutrition for Life. During this same time frame, Eagle's average monthly revenues from these three companies decreased from a monthly average of over $100,000 in August to $6,518 in October. Eagle sued AIT for tortious interference with contract and sued Yoakum for breach of the non-disclosure and non-competition provisions of his employment contract; Eagle then sought a temporary injunction pending the trial. The trial court entered a temporary injunction in November, and this interlocutory appeal ensued. Temporary Injunction
AIT contends the trial court abused its discretion in entering the injunction because (1) it was overbroad, vague, and unsupported by the evidence, (2) Eagle was unwilling to otherwise enforce its confidentiality agreements; and (3) Yoakum's non-compete and non-disclosure agreements were selectively enforced. 1. Standard of Review
To warrant issuance of a temporary injunction, the applicant need only show a probable right and probable injury; the applicant is not required to establish that he will finally prevail in the litigation. State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975). We will uphold the trial court's judgment unless we are convinced that it represents a clear abuse of discretion; there is no abuse of discretion if the evidence tends to sustain the cause of action as alleged. Id. If the evidence is conflicting, we may not substitute our judgment for the trial court's. Norris of Houston, Inc. v. Gafas, 562 S.W.2d 894, 896 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.). 2. Did Eagle show a probable right and probable injury?
Eagle sued Yoakum for breach of contract and misappropriation of trade secrets. It sued AIT for tortious interference with contract. The record contains a copy of the confidentiality agreement Yoakum signed, which prohibits him from using or disclosing confidential information, and warns him that Eagle could seek a temporary injunction to enforce the agreement. The record also shows that revenues from three of Yoakum's major Eagle accounts diminished while AIT's revenues from these accounts, still handled by Yoakum, increased. AIT contends Eagle never provided evidence that Yoakum possesses a confidential list of customers. While the record supports this assertion, we do not find it relevant. The confidentiality agreement is not limited only to a printed list. The identities of a particular freight forwarding company's customers, whether on a printed list or merely known to an employee because he has worked with these customers, may be considered confidential. Although Eagle relies on Allan E. Richardson Assoc., Inc. v. Andrews to argue that a client list is not confidential, Richardson does not so hold; rather, the court noted that a client list may be confidential but concluded the list at issue was not. See 718 S.W.2d 833, 837 (Tex.App.-Houston [1st Dist.] 1986, no writ). Both Eagle and AIT representatives testified that the information contained in connection with a customer list portrays the business relationship — what is shipped, volume of business, revenue generated, which services are utilized — and is vital to the company. We are satisfied that Yoakum was privy to confidential information, and that his knowledge of this confidential information probably resulted in AIT's acquiring those former Eagle accounts that Yoakum serviced. Accordingly, we hold Eagle established both a probable right and a probable injury. 3. Does the evidence tend to sustain the alleged causes of action?
Eagle sued AIT for tortious interference with contract and sued Yoakum for breach of the non-disclosure and non-competition provisions of his employment contract. The record shows that, in addition to the shift in revenues that accompanied Yoakum's move from Eagle to AIT, AIT's attorneys advised former Eagle employees that, so long as they took nothing tangible from Eagle, they would not violate the nondisclosure provision. AIT argues in essence that because Eagle did not protect the information internally, Yoakum was under no obligation to do so. AIT also points out that Eagle has not sued any other former employees who left Eagle to work for AIT. The evidence in the record is conflicting regarding what steps Eagle took to protect the confidentiality of its materials. In addition, the record is silent concerning any breaches of confidentiality by other employees. Accordingly, AIT has not shown that Eagle waived its right to enforce the confidentiality and noncompetition agreements against Yoakum. We hold the evidence tends to sustain the causes of action. 3. Is the injunction overbroad or vague?
AIT and Yoakum are barred from using or disclosing any of Eagle's pricing structures and policies, customer lists, and credit terms, acquired by any former Eagle employee who signed a confidentiality agreement. Because it is AIT, not the former employees other than Yoakum, which is barred from using confidential information, we do not consider this portion of the injunction overbroad. Yoakum is also barred for one year from calling on or soliciting three Houston businesses — Igloo, Mitsubishi, and Nutrition for Life. Because other AIT salespersons may handle these three accounts, and Yoakum is not prohibited from acting as the salesperson on any other AIT account, we do not consider this provision overbroad. These terms in each paragraph of the injunction are clear, unambiguous, and limited. Accordingly, we do not find the injunction to be vague. 4. Does the doctrine of "unclean hands" bar the injunction?
AIT contends it is inequitable for the court to enforce the confidentiality provision when Eagle breached other portions of Yoakum's contract, citing numerous cases where covenants not to compete were held unenforceable in the face of an employer's breach of the employment contract. See, e.g., Bailey Employment Serv., Inc. v. Moore, 638 S.W.2d 641, 642-43 (Tex.App.-Waco 1982, no writ) (under doctrine of "clean hands," former employer cannot enforce a covenant not to compete in a contract of employment by temporary injunction when it has materially breached contract). AIT contends Eagle breached the contract in several ways. Evidently, the trial court did not consider these material breaches, as it granted the temporary injunction. Moreover, when a noncompetition clause states, as it does here, that it will be construed independently of other clauses in the employment agreement, the unclean hands doctrine does not apply. French v. Community Broad. of Coastal Bend, Inc., 766 S.W.2d 330, 334 (Tex.App.-Corpus Christi 1989, writ dism'd w.o.j.). We hold the doctrine of unclean hands does not prohibit the temporary injunction under these facts. We overrule issues one, two, and three. We affirm the trial court's order.