Rex Darrell White v. Kendall Cannon C/B/A Cannon LP Gas Company

• Court: Court of Appeals of Texas
• Decided: June 15, 2005
• Docket: 12-05-00095-CV
• Status: Published

Opinion

                                                                                    NO. 12-05-00095-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

REX DARRELL WHITE,                                  §                 APPEAL FROM THE 273RD

APPELLANT

V.                                                                         §                 JUDICIAL DISTRICT COURT OF

KENDALL CANNON, d/b/a

CANNON’S LP GAS COMPANY,

APPELLEE                                                        §                 SABINE COUNTY, TEXAS

MEMORANDUM OPINION

            Appellee, Kendall Cannon d/b/a Cannon’s LP Gas Company, obtained a permanent injunction prohibiting Appellant, Rex Darrell White, from engaging in a business similar to Cannon’s within Sabine County, Texas and San Augustine County, Texas until June 15, 2005. The injunction arose from an employment agreement between the parties in which White agreed not to compete with Cannon within a 50-mile radius of Hemphill, located in Sabine County, for a period of eighteen months after the contract was terminated. White left Cannon’s employment on September 21, 2004, thereby terminating the agreement.

            White has appealed the judgment granting the permanent injunction, contending that the “covenant not to compete” portion of the employment agreement was not enforceable. Cannon has filed a motion to dismiss the appeal as moot on the ground that the injunction will expire before his brief can be filed and this Court can address White’s sole issue on appeal. White urges that the appeal is not moot and that Cannon should not be able to avoid appellate review. He further contends that “[w]ithout a decision by this Honorable Court . . . , Appellee can, and will, repeatedly continue its practice in restraint of trade and yet prevent effective judicial review.” (Emphasis in original.)

            “It is well-settled law that ‘[a] case becomes moot when it appears that one . . . seeks judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.’” Swank v. Sharp, 358 S.W.2d 950, 951 (Tex. Civ. App.–Dallas 1962, no writ) (citations omitted). Therefore, an appeal will be dismissed if, without any fault of the appellee, an event has occurred that makes a determination of it unnecessary or renders it impossible for an appellate court to grant effectual relief. Id. at 952.

            Based upon our review of the record and White’s brief, we conclude that the covenant not to compete cannot be enforced against White after June 15, 2005, the date the permanent injunction expires. Consequently, the question of its validity is moot because of the passage of time, and any relief we could grant would have no practical effect. Accordingly, Cannon’s motion to dismiss is granted, and the appeal is dismissed as moot.

                                                                                                    SAM GRIFFITH

                                                                                                               Justice

Opinion delivered June 15, 2005.

Panel consisted of Worthen, C.J., Griffith, J., and DeVasto, J.

(PUBLISH)