Dittmer v. Source EDP, Texas, Inc.

595 S.W.2d 877
CourtCourt of Appeals of Texas
DecidedFebruary 19, 1980
Docket20301
StatusPublished
Cited by3 cases

This text of 595 S.W.2d 877 (Dittmer v. Source EDP, Texas, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dittmer v. Source EDP, Texas, Inc., 595 S.W.2d 877 (Tex. Ct. App. 1980).

Opinions

GUITTARD, Chief Justice.

Defendant Paul Dittmer complains of a temporary injunction restraining him from competing with plaintiff Source EDP, Texas, Inc. in the placement of computer professionals in and within one hundred miles of the city of Dallas. The suit is based on a covenant against competition signed by defendant as an employee of Source EDP, Western Region, Inc., which is alleged to be a “predecessor in interest” of plaintiff Source EDP, Texas, Inc. The question for our decision is whether the trial judge abused his discretion in granting a temporary injunction to preserve the status quo until a trial on the merits. We find no abuse of discretion.

Duration of Restraint

One of the grounds defendant advances to show abuse of discretion is that the temporary injunction enables plaintiff to achieve the whole object of its suit without a full hearing. In this connection defendant points out that the covenant runs two years from termination of his employment, which occurred September 1,1978. Defendant started his own competing business in October 1979, and the temporary injunction was issued November 12, 1979. Defendant acknowledges that trial on the merits is set for January 21,1980, but he asserts that he has no assurance that the case will be reached for trial on that date. He says he fears that because of other cases set on the same day this trial will be postponed so as to keep the temporary injunction in force for substantially the whole of the remaining period of the covenant, which expires on September 1, 1980.

We do not believe that these circumstances show an abuse of discretion. We commend the trial judge for giving the case precedence by setting the trial on the mer-. its within three months after the suit was filed. Apparently he did so in the light of our decisions, such as Reeder v. Intercontinental Plastics Mfg. Co., 581 S.W.2d 497, 499 (Tex.Civ.App.—Dallas 1979, no writ), and Charter Medical Corp. v. Miller, 547 S.W.2d 77, 79 (Tex.Civ.App.—Dallas 1977, no writ), in which we emphasized that an early trial on the merits provides more expeditious relief from a temporary injunction than an interlocutory appeal because of the precedence to which injunction cases are entitled. In view of the expiration of the covenant on September 1,1980, and the trial court’s evident recognition of such precedence, we may presume that the case will be tried on January 21, or as soon after that date as may be consistent with prompt disposition of other cases entitled to similar precedence, and that it will not be postponed for trial of other cases on the docket. Consequently, we have no reason to suppose that the temporary injunction will accomplish substantially the whole purpose of the suit. See Gonzales v. Norris of Houston, Inc., 575 S.W.2d 110, 112-13 (Tex.Civ.App.—Houston [14th Dist.] 1978, no writ).

Counsel has suggested that preferential treatment for trial of injunction cases on the merits may be subject to abuse in that plaintiffs whose principal claims are for damages may seek temporary relief in order to obtain a preferential setting. That problem is not involved here, since plaintiff’s only claim is for injunctive relief. More[880]*880over, trial judges have ample discretion to manage their dockets according to the exigencies of particular cases.

In the present case, although the trial judge set the trial on the merits with commendable promptness after the hearing on the temporary injunction, an even better practice would have been to have a conference with counsel before hearing evidence on the application for temporary injunction with a view to obviating the hearing on the application for temporary relief by setting an early trial on the merits. The interlocutory proceeding on November 8, 1979, is characterized by counsel as a “full eviden-tiary hearing.” The record before us indicates that the evidence was fully developed. We see no reason why the same evidence could not have been presented to the court or jury for final decision on that day. Such a trial would have disrupted the docket no more than the hearing on the temporary injunction. Presumably, if the parties had requested such an early trial, the judge would have provided it, either on the date set for the preliminary hearing or a few days later, and thus only one evidentiary hearing would have been required.

Reasonableness of Restraint

Defendant contends that the restraint enforced by the temporary injunction is unnecessary and unreasonable because he had not been engaged in the business of computer personnel placement during the three years preceding termination of his employment. The evidence shows that in 1975 he was assigned to placement of personnel in finance-related jobs, and, although he continued to supervise employees engaged in placement of computer personnel, he had no more direct contacts with customers in that field.

This change in defendant’s duties does not, in our opinion, establish an abuse of discretion in granting the temporary injunction. The judge could reasonably find from the evidence that the defendant’s contacts with customers in the computer personnel placement aspect of plaintiff’s business were still of sufficient value to constitute protectable assets. Consequently, notwithstanding this change in defendant’s duties, we conclude that the temporary injunction is supported by authorities holding that the competitive advantage an employee gains by contacts with his employer’s customers justifies enforcement of a reasonable covenant against competition after the employment has terminated. Weber v. Hesse Envelope Co., 342 S.W.2d 652, 655 (Tex.Civ.App.—Dallas 1960, no writ); Texas Ice & Cold Storage Co. v. McGoldrick, 284 S.W. 615, 617 (Tex.Civ.App.—San Antonio 1926, writ ref’d).

Probable 'Injury

Defendant complains further that the pleading and proof fails to show probable injury from violation of the covenant in that it fails to show an appropriation of plaintiff’s protectable interests by defendant. In this connection defendant points out that when he left plaintiff’s employment he took with him no list of customers or other proprietary information and made no use of any special methods or secrets. We conclude that the evidence of probable injury, though weak, is sufficient to sustain the trial court’s discretion to preserve the status quo until a final trial. The testimony showed that the number of companies operating computer facilities in Dallas and within a hundred miles from it is limited and although lists of such companies are available to anyone, the business of personnel placement in this field is highly competitive and defendant’s past contacts with hiring officers of such prospective customers provides a definite competitive advantage. Defendant’s testimony shows that he was making calls to some of the same companies that he had solicited when working for plaintiff and that he would continue to do so unless restrained. Consequently, we hold that sufficient probable injury has been shown to justify injunctive relief to preserve the status quo. Reeder v. Intercontinental Plastics Mfg. Co.,

Related

Hill v. Mobile Auto Trim, Inc.
725 S.W.2d 168 (Texas Supreme Court, 1987)
Dittmer v. Source EDP, Texas, Inc.
595 S.W.2d 877 (Court of Appeals of Texas, 1980)

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595 S.W.2d 877, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dittmer-v-source-edp-texas-inc-texapp-1980.