FROM THE 415TH DISTRICT COURT OF PARKER COUNTY
TRIAL COURT NO. CV15-0775 MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Molly Bellefeuille appeals from the trial court's amended order granting appellee Equine Sports Medicine & Surgery, Weatherford Division, PLLC (ESMS) a temporary injunction. Because we conclude that the trial court did not abuse its discretion by granting injunctive relief but that portions of the order are overly broad or vague, we modify the order to address those deficiencies and affirm it as modified.
After initially granting the temporary injunction on July 30, 2015, the trial court later signed an amended order on August 10, 2015. Any statement in this opinion regarding the trial court's "order" refers to the amended order.
After Bellefeuille received her general veterinary degree, she was hired for a one-year internship with ESMS, which offers equine surgical internship and residency programs. Very few veterinary hospitals offer such programs, making each position highly competitive. One of the reasons ESMS found Bellefeuille to be an attractive candidate was the fact that she was a "life-long" Washington resident and had received her veterinary degree from a school in Washington, which would make it less likely that she would directly compete with ESMS once her internship was completed. As part of her internship, Bellefeuille signed an agreement (the internship agreement) under which she agreed not to compete with ESMS after her internship ended:
[D]uring the period that [Bellefeuille] is employed by [ESMS] and for a period of twelve (12) months thereafter, [Bellefeuille] shall not directly or indirectly, on [Bellefeuille's] own behalf, on behalf of or with any other party, person or entity, including but not limited to, any relationship as a partner, joint-venturer, director, shareholder, owner, employee or independent contractor, market or provide services similar to the services which [ESMS] provides to its patients or customers at any location within 50-miles of any location, including
any race track practices, in which [Bellefeuille] has provided services for [ESMS] during the last twelve (12) months of [Bellefeuille's] employment by [ESMS] . . . .The consideration for the agreement was ESMS's promise to provide Bellefeuille with confidential information—"information that is not readily available to the general public and which relates to or reflects [ESMS's] business and its clients such as business and marketing plans, patient lists, software, case histories, x-ray films, and personal and regular patient files, price lists, [or] methods of operation"—which Bellefeuille promised not to disclose.
At the end of her internship in 2012, Bellefeuille was not accepted into any of her chosen surgical residency programs affiliated with universities; thus, she asked Dr. Reese Hand at ESMS if she could stay at ESMS for a surgical residency. ESMS admitted Bellefeuille to its residency program at Hand's request, and Bellefeuille signed an employment agreement (the residency agreement), which contained a noncompete covenant (the noncompete provision). It provided that Bellefeuille would not compete with ESMS within a fifty-mile radius for a period of eighteen months after her residency ended. In exchange, ESMS agreed to provide Bellefeuille with ESMS's confidential and proprietary information.
ESMS had already hired a resident for its surgical residency program, but Hand convinced ESMS's board of directors to take on a second surgical resident, which had not been done before.
Ancillary to this otherwise enforceable [employment] Agreement and [ESMS's] agreement to provide [Bellefeuille] with Confidential
Information which [ESMS] desires to protect: (a) during the period that [Bellefeuille] is employed by [ESMS] and for a period of eighteen (18) months thereafter, [Bellefeuille] shall not enter into or engage in any relationship in a capacity similar to the capacity in which [she] worked for [ESMS], as a partner, joint-venturer, director, shareholder, owner, employee or independent contractor with any person or entity that provides services similar to the services that [ESMS] provides to its patients or customers at any location within 50 miles of any ESMS location . . . in which [Bellefeuille] has provided services for [ESMS] during the last twelve (12) months of [Bellefeuille's] employment by [ESMS] . . . .The confidential and proprietary information to be provided to Bellefeuille was specified in the residency agreement similar to the internship agreement:
Such confidential and proprietary information includes, but is not limited to, information that is not readily available to the general public and which relates to or reflects [ESMS's] business and its clients such as business and marketing plans, patient lists, software, case histories, x-ray films, personal and regular patient files, price lists, and methods of operation . . . .Bellefeuille agreed not to "disclose or use any Confidential Information by any means whatsoever during the term of this Agreement or in the future" (the confidential-information provision). Bellefeuille's residency agreement superseded her prior internship agreement.
Approximately six months before the end of Bellefeuille's three-year residency, Hand told her that a permanent position at ESMS would not be available for her. Bellefeuille did receive eight job offers by the end of her residency, two of which were inside the restricted, fifty-mile area: "[o]ne working for a ranch in the area and one doing [her] own thing." Bellefeuille accepted none of these offers and instead contacted a veterinarian affiliated with Brazos Valley Equine Hospital (BVEH) to ask about possible employment at its Stephenville facility, which undisputedly is located less than fifty miles from ESMS and is one of ESMS's biggest competitors. She did this because she "had purchased a house [in Stephenville] a year before because [she] thought [she] was staying in the area" to work for ESMS after one of ESMS's surgeons, Chris Ray, moved to Montana the year before. Bellefeuille accepted employment with BVEH and began working there on June 15, 2015, after her residency ended in May 2015. She admitted that this placed her "between Dr. Hand and some of his biggest clients."
Shortly thereafter, Bellefeuille filed a petition for declaratory judgment, seeking a declaration either that the provision was not enforceable or that her employment with BVEH did not violate the provision. ESMS filed verified counterclaims for breach of contract and fraud and sought an injunction prohibiting Bellefeuille from performing equine veterinary services within fifty miles of ESMS or disclosing ESMS's confidential information. See Tex. R. Civ. P. 682. Bellefeuille's residency agreement provided for injunctive relief:
[Bellefeuille] acknowledges that it would be difficult to measure any damages caused to [ESMS], which might result from any breach by [Bellefeuille] of the provisions set forth in [the confidential-information and noncompete provisions] of this Agreement, and that in any event, money damages alone may be . . . an inadequate remedy for any such breach. Accordingly, [Bellefeuille] acknowledges that if . . . she breaches, or appears to be about to breach, [the confidential-information and noncompete provisions] of this Agreement, [ESMS] shall be entitled to all other remedies that it may have to an injunction or other appropriate equitable relief to restrain any such
breach without showing or proving any actual damage to [ESMS]. This provision shall survive the termination of this Agreement.
The trial court held an evidentiary hearing, at which Hand, Bellefeuille, and BVEH's managing partner testified, and entered an order granting the temporary injunction. See Tex. R. Civ. P. 681, 683. The order enjoined Bellefeuille from
a. Performing any equine veterinary services within fifty miles of ESMS . . . for a period of eighteen months from June 1, 2015.
. . . .
Bellefeuille filed a notice of accelerated appeal, challenging the temporary-injunction order. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(4) (West Supp. 2015); Tex. R. App. P. 28.1. Trial on the merits of Bellefeuille's and ESMS's claims is currently set for July 12, 2016.
c. Disclosing or using, directly or indirectly, through any means whatsoever, ESMS['s] confidential and proprietary information, business and marketing plans, patient lists, case histories, x-ray films, personal and regular patient files, price lists, and method of operations, and such other trade secrets and confidential information which constitute ESMS's trade secrets and confidential information in competition with ESMS.
d. Contacting or soliciting ESMS's customers or prospective customers for the purpose of diverting existing and future business away from ESMS and from tortiously interfering with any existing contractual relationships or prospective business relationships.
e. Altering, modifying, damaging, destroying, or in any way changing any document procured, obtained, or created during Bellefeuille's employment with ESMS or any business secrets.
II. STANDARD AND SCOPE OF REVIEW
The purpose of a temporary injunction is to preserve the status quo of the litigation's subject matter pending a trial on the merits. Janus Films, Inc. v. City of Fort Worth, 358 S.W.2d 589, 589 (Tex. 1962). Whether to grant or deny a temporary injunction is a decision within the trial court's sound discretion. Harris Cty. v. Gordon, 616 S.W.2d 167, 168 (Tex. 1981). In reviewing that decision, we do not review the merits of the underlying case but determine only whether the trial court abused its discretion in granting or denying the relief. Iranian Muslim Org. v. City of San Antonio, 615 S.W.2d 202, 210 (Tex. 1981); see City of Arlington v. City of Fort Worth, 873 S.W.2d 765, 768 (Tex. App.—Fort Worth 1994, writ dism'd w.o.j.). Accordingly, we review the evidence submitted to the trial court in the light most favorable to the court's ruling, draw all legitimate inferences from the evidence, and defer to the trial court's resolution of conflicting evidence. See IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 196 (Tex. App.—Fort Worth 2005, no pet.). A trial court abuses its discretion by issuing a temporary-injunction order that does not comply with the substantive requirements for such an order or that is overly broad or vague. See Fuqua v. Oncor Elec. Delivery Co., 315 S.W.3d 552, 557 (Tex. App.—Eastland 2010, pet. denied); Charter Med. Corp. v. Miller, 547 S.W.2d 77, 78 (Tex. Civ. App.—Dallas 1977, no writ); see also Tex. R. Civ. P. 683.
In her first issue, Bellefeuille argues that the temporary injunction is void because the trial court failed to state the reasons why ESMS would suffer irreparable injury in the absence of an injunction. See Tex. R. Civ. P. 683 (requiring order granting temporary injunction to "set forth the reasons for its issuance" and "shall be specific in terms"). Rule 683 requires that a temporary-injunction order state precisely why the applicant would suffer irreparable harm. City of Corpus Christi v. Friends of the Coliseum, 311 S.W.3d 706, 708-09 (Tex. App.—Corpus Christi 2010, no pet.); Byrd Ranch, Inc. v. Interwest Sav. Ass'n, 717 S.W.2d 452, 454 (Tex. App.—Fort Worth 1986, no writ). An unsupported and conclusory statement in the order that irreparable harm will occur is insufficient to satisfy rule 683. See El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 745-46 (Tex. App.—Dallas 2011, no pet.); Byrd Ranch, 717 S.W.2d at 454. The requirements of rule 683 must be strictly construed, and if they are not followed, a temporary injunction is void and must be dissolved. InterFirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986); Big D Props., Inc. v. Foster, 2 S.W.3d 21, 22-23 (Tex. App.—Fort Worth 1999, no pet.).
The trial court included in its order several findings of fact regarding the irreparable injury that ESMS would suffer in the absence of an injunction, including:
• Bellefeuille had been given and had access to ESMS's confidential and proprietary information and trade secrets, including its marketing plans, patient lists, price lists, methods of operation, and medical records.
• Bellefeuille possessed this information and "has been using or threatening to use the information in direct competition with ESMS."
• Bellefeuille was wrongly soliciting ESMS's existing and potential customers.
• Many veterinary hospitals and practices stopped providing residency programs because "significant business has been lost to former residents that establish a practice nearby," which would increase if noncompete provisions such as Bellefeuille's were not enforced.
• The only way to adequately protect ESMS was to "prevent Bellefeuille from performing equine veterinary services within a fifty-mile radius of ESMS" and to "prevent the disclosure and use of its confidential and proprietary information and trade secrets to any person outside of ESMS, and prevent unlawful solicitation of its business." Further, Bellefeuille acknowledged in her residency agreement that ESMS's actual damages from any possible breach of the agreement would be "difficult to measure" and that ESMS accordingly would be entitled to an injunction. See Williams v. Compressor Eng'g Corp., 704 S.W.2d 469, 472 (Tex. App.—Houston [14th Dist.] 1986, writ ref'd n.r.e.) ("'Irreparable injury' is best defined as occurring when the injured party cannot be adequately compensated in damages or the damage resulting from it cannot be measured by any pecuniary standard.").
The trial court's findings, which were supported by the evidence adduced at the hearing, and Bellefeuille's acknowledgement of the necessity for injunctive relief in her residency agreement justify the trial court's conclusion that the failure to issue a temporary injunction would result in immediate and irreparable injury to ESMS. Unlike the cases cited by Bellefeuille in support of her argument, the trial court did not state in a conclusory manner that irreparable injury would occur; the trial court included specific factual reasons supporting its conclusion that ESMS would suffer immediate and irreparable injury if Bellefeuille's actions were not enjoined. Compare El Tacaso, 356 S.W.3d at 745-47 (holding unsupported statement that applicant "has sufficiently shown that it will suffer a probable injury" insufficient under rule 683), and Corpus Christi, 311 S.W.3d at 708-09 (holding unsupported statement that "immediate and irreparable harm" to applicant would result insufficient under rule 683), with Garcia v. Oilfield Mud & Chem. Servs., Inc., No. 11-11-00315-CV, 2012 WL 5520418, at *4 (Tex. App.—Eastland Nov. 15, 2012, no pet.) (mem. op.) (holding order sufficiently stated reasons for irreparable-harm conclusion by stating former employee would continue to "unfairly and illegally compete with the business" of former employer), Counsel Fin. Servs., L.L.C. v. Leibowitz, No. 13-10-00200-CV, 2011 WL 2652158, at *9-10 (Tex. App.—Corpus Christi July 1, 2011, pet. denied) (mem. op.) (holding irreparable-injury conclusion supported by specific findings in order), and Selva v. Pinnacle Partners Fin. Corp., No. 04-10-00521-CV, 2011 WL 915737, at *1 (Tex. App.—San Antonio Mar. 16, 2011, no pet.) (mem. op.) (same). The trial court's findings regarding irreparable injury resulting from any breach of the noncompete provision sufficiently complied with rule 683. We overrule issue one.
Bellefeuille concedes that the order complied with rule 683 regarding any alleged disclosure of ESMS's confidential information. ESMS alleged that Bellefeuille used ESMS's confidential information to wrongfully compete with ESMS; thus, the findings regarding Bellefeuille's misuse of ESMS's confidential information are relevant to the noncompete provision as well.
IV. OVERBREADTH AND VAGUENESS
In her remaining issues, Bellefeuille asserts that certain provisions in the trial court's temporary injunction are overbroad, vague, or both because they go beyond the terms of the residency agreement, prohibit activities that are not related to a protectable interest of ESMS, and fail to specify to which information, clients, and documents the injunction applies. We address each challenged portion of the order in turn.
Bellefeuille initially seemed to argue that the geographic limitation in the residency agreement was unreasonable; however, she conceded in her reply brief that the fifty-mile radius and the eighteen-month noncompete period were reasonable. We will not address these portions of the order.
A. PRACTICE RESTRICTION
The trial court enjoined Bellefeuille from "[p]erforming any equine veterinary services within fifty miles of ESMS . . . for a period of eighteen months." Bellefeuille argues in her second issue that this portion of the order goes beyond what is prohibited in the noncompete provision of her residency agreement and, thus, is overbroad.
As we previously recited, the noncompete provision restricted Bellefeuille from "any relationship in a capacity similar to the capacity in which [she] worked for [ESMS], as a partner, joint-venturer, director, shareholder, owner, employee or independent contractor with any person or entity that provides services similar to the services that [ESMS] provides to its patients or customers." Bellefeuille argues that the noncompete provision, as written, did not prohibit Bellefeuille from opening her own veterinary practice as a solo practitioner. If it did not, the trial court's order would be impermissibly broader than the noncompete provision because it enjoined "any equine veterinary services." [Emphasis added.]
The plain language of the noncompete provision in the residency agreement did not bar Bellefeuille from opening her own solo veterinary practice. A solo practice would not be a practice she would own "with any person or entity," would not entail "enter[ing] into or engag[ing] in [a] relationship in a capacity similar to the capacity in which [she] worked for [ESMS]," and would not necessarily provide the same services that ESMS provides. Indeed, ESMS's internship agreement clearly prohibits former interns from owning a veterinary practice either "on the Employee's own behalf" or "on behalf of or with any other party." The residency agreement does not include the language barring owning a practice on the former resident's "own behalf." Therefore, the order prohibiting Bellefeuille from practicing any form of equine veterinary medicine went beyond the scope of the residency agreement and exceeded what was necessary to preserve the status quo; thus, this portion of the order was an abuse of the trial court's discretion. See Changing Surface, Inc. v. Crum, No. 04-02-00056-CV, 2002 WL 1972078, at *3 (Tex. App.—San Antonio Aug. 28, 2002, no pet.) (not designated for publication); McLean v. Emp'rs Cas. Co., 381 S.W.2d 582, 583- 84 (Tex. Civ. App.—Dallas 1964, no writ). See generally Koch v. Koch, 27 S.W.3d 93, 95 (Tex. App.—San Antonio 2000, no pet.) (recognizing an abuse of discretion occurs if the trial court makes "a choice that is not within the range of choices permitted by law"); Hellenic Inv., Inc. v. Kroger Co., 766 S.W.2d 861, 866 (Tex. App.—Houston [1st Dist.] 1989, no writ) (holding injunction "should not be framed so broadly as to prohibit the enjoyment of lawful rights"). We sustain Bellefeuille's second issue and will address the appropriate remedy in a separate discussion.
B. RESTRICTION ON CONTACTING OR SOLICITING CUSTOMERS
The trial court enjoined Bellefeuille from "[c]ontacting or soliciting ESMS's customers or prospective customers for the purpose of diverting existing and future business away from ESMS." In her third issue and part of her fourth issue, Bellefeuille argues this is overbroad because it was not restricted to customers in which ESMS has a protectable interest, does not contain a geographical limitation, and is not limited to customers ESMS had during Bellefeuille's employment.
Both Bellefeuille and ESMS seem to argue that this portion of the order relates to the noncompete provision in the residency agreement and should be governed by the Covenant Not to Compete Act and the common law. But the noncompete provision did not prohibit Bellefeuille from contacting or soliciting ESMS's customers; it only prohibited Bellefeuille from soliciting or recruiting ESMS's employees and independent contractors. Nothing in the residency agreement addressed solicitation of or contact with ESMS's customers, whether current or prospective, and ESMS cannot rely on the common law to gain relief from actions not prohibited by the residency agreement.Cf. Rugen v. Interactive Bus. Sys., Inc., 864 S.W.2d 548, 551 (Tex. App.—Dallas 1993, no writ) (holding "in the absence of an enforceable agreement not to compete, an employer is not entitled to an injunction preventing a former employee from soliciting the employer's clients"); Gonzales v. Zamora, 791 S.W.2d 258, 268 (Tex. App.—Corpus Christi 1990, no writ) ("An employer is not entitled to an injunction preventing a former employee from soliciting employer's clientele as it existed on the day of employee's termination of employment, where there is no agreement not to compete."). The terms of the temporary-injunction order relating to Bellefeuille's solicitation of ESMS's customers and business relationships went beyond the scope of activities prohibited by the noncompete provision and, thus, was impermissibly overbroad. We sustain issue three and part of issue four and will discuss the remedy below.
Of course, even in the absence of an enforceable restriction on a former employee's ability to contact or solicit customers of a former employer, an employee may be restricted from using her former employer's confidential information or trade secrets, which could include customer lists. See Dig. Generation, Inc. v. Boring, 869 F. Supp. 2d 761, 778 (N.D. Tex. 2012); Lasser v. Amistco Separation Prods., Inc., No. 01-14-00432-CV, 2014 WL 4952501, at *11 (Tex. App.—Houston [1st Dist.] Oct. 2, 2014, no pet.) (mem. op.). The confidential-information provision in Bellefeuille's residency agreement restricted Bellefeuille from disclosing or using ESMS's confidential information, which included information not readily available to the general public relating to ESMS's clients and business such as its patient lists and files. We address the confidential-information provision in the next section.
C. INFORMATION NOT TO BE DISCLOSED OR USED
In part of her fourth issue, Bellefeuille asserts that the portion of the order delineating which information Bellefeuille may not disclose or use is vague and overbroad because it included "catch all" language unsupported by the evidence adduced at the hearing. The order enjoined Bellefeuille from disclosing or using ESMS's confidential information as defined in the residency agreement but extended the prohibition to "such other trade secrets and confidential information which constitute ESMS's trade secrets and confidential information in competition with ESMS." Hand testified at the hearing that ESMS disclosed to Bellefeuille information that was specifically listed in the confidential-information provision—"business and marketing plans, patient lists, software, case histories, x-ray films, and personal and regular patient files, price lists, [or] methods of operation"—but also disclosed how to evaluate horses and identify problems, how to craft a treatment plan, training on equine sports medicine, and best practices for attracting and retaining sport-horse customers.
"[A]n injunction decree must be as definite, clear and precise as possible and when practicable it should inform the defendant of the acts he is restrained from doing, without calling on him for inferences or conclusions about which persons might well differ and without leaving anything for further hearing." Villalobos v. Holguin, 208 S.W.2d 871, 875 (Tex. 1948). But an injunction order is not required to specify each and every possible act that might constitute a violation. See San Antonio Bar Ass'n v. Guardian Abstract & Title Co., 291 S.W.2d 697, 702 (Tex. 1956). Instead, an injunction "must be in broad enough terms to prevent repetition of the evil sought to be stopped." Id.
ESMS filed counterclaims against Bellefeuille alleging that she had been given access to ESMS's confidential, proprietary, and trade-secret information during her employment and sought to prevent her from benefitting from this access. Although the order includes "catch all" language, specific examples of confidential information were given in the order. These examples—when read in the context of ESMS's counterclaims, the evidence at the hearing, and the fact that the trial court found that Bellefeuille was in possession of ESMS's proprietary and confidential information—provided Bellefeuille with adequate notice of the information she is prohibited from using or disclosing. See Lasser, 2014 WL 4952501, at *6-7 (holding definition of confidential information in injunction order not overly broad and left "nothing to conjecture" even though "including, without limitation" and "includes but is not limited to" were part of the definition); Cross v. Chem-Air S., Inc., 648 S.W.2d 754, 757 (Tex. App.—Beaumont 1983, no writ) (holding "or otherwise" included in list of prohibited acts of competition not overly broad or vague when "read in the context of the entire injunction" because it "would be unreasonable to expect the trial court to list all the possible ways Cross could compete"); see also Lockhart v. McCurley, No. 10-09-00240-CV, 2010 WL 966029, at *4 (Tex. App.—Waco Mar. 10, 2010, no pet.) (mem. op.) ("The order need not identify the clients by name; it is reasonable to presume that Lockhart is 'sufficiently familiar with the employer's business and its customers to avoid violating the injunction.'" (quoting Safeguard Bus. Sys., Inc. v. Schaffer, 822 S.W.2d 640, 644 (Tex. App.—Dallas 1991, no writ)); Lifeguard Benefit Servs., Inc. v. Direct Med. Network Sols., Inc., 308 S.W.3d 102, 116 (Tex. App.—Fort Worth 2010, no pet.) (holding term in temporary-injunction order not vague when considered in context of alleged claims and evidence presented at injunction hearing); Mabrey v. SandStream, Inc., 124 S.W.3d 302, 320-21 (Tex. App.—Fort Worth 2003, no pet.) (holding temporary injunction not overly broad or impermissibly vague because confidential, proprietary, and trade-secret information as defined in order necessarily excluded "information not generally available to the public"). We overrule this portion of issue four.
Bellefeuille argues in her reply brief that there was no evidence to support the trial court's finding that Bellefeuille was in possession of ESMS's confidential information. Although Bellefeuille testified that she took no confidential information with her when she left ESMS, the evidence showed that Bellefeuille had extensive access to ESMS's confidential information during her employment with ESMS and later treated at BVEH ten horses who previously had been treated by ESMS. The trial court was the sole judge of the credibility and the weight of the evidence, and we conclude the evidence was sufficient to support the finding that Bellefeuille was in possession of ESMS's confidential information and was in a position to use it to ESMS's detriment. See Nelson v. Jordan, 663 S.W.2d 82, 86 (Tex. App.—Austin 1983, writ ref'd n.r.e.); see also T-N-T Motorsports, Inc. v. Hennessey Motorsports, Inc., 965 S.W.2d 18, 24 (Tex. App.—Houston [1st Dist.] 1998, pet. dism'd).
D. DOCUMENT DESTRUCTION OR MODIFICATION
In the remaining portion of her fourth issue, Bellefeuille argues that the order was vague and overbroad by prohibiting her from "[a]ltering, modifying, damaging, destroying, or in any way changing any document procured, obtained, or created during Bellefeuille's employment with ESMS or any business secrets." She asserts this prohibition "potentially encompass[es] every personal document, letter, e-mail, and to-do list created by Bellefeuille during her three years of employment with ESMS." She does not dispute that she may not alter or destroy documents that were specifically listed in the order as constituting confidential information, obtained from ESMS, or created in connection with her duties at ESMS. We agree that this portion of the order as worded is vague and broader than it needs to be to protect the status quo. "Any document" is too broad a category, even when read in the context of the order, and is not limited to documents constituting confidential information or documents relating to the suit. See Ramirez v. Ignite Holdings, Ltd., No. 05-12-01024-CV, 2013 WL 4568365, at *4-5 (Tex. App.—Dallas Aug. 26, 2013, no pet.) (mem. op.); Computek Comput. & Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 223 (Tex. App.—Dallas 2005, no pet.); Sw. Research Inst. v. Keraplast Techs., Ltd., 103 S.W.3d 478, 482 (Tex. App.—San Antonio 2003, no pet.); T-N-T Motorsports, 965 S.W.2d at 25. We sustain this portion of issue four and discuss the appropriate remedy in a later section.
E. TORTIOUS INTERFERENCE WITH EXISTING OR PROSPECTIVE RELATIONSHIPS
The temporary-injunction order prohibited Bellefeuille from "tortiously interfering with any existing contractual relationships or prospective business relationships." Bellefeuille argues in her fifth issue that the tortious-interference prohibition is impermissibly vague because the residency agreement does not prohibit interference with contractual or business relationships, tortious interference is not defined in the order, and the specific contractual and business relationships are not listed.
ESMS did not assert a claim for tortious interference against Bellefeuille, and the injunction does not otherwise explain what would constitute tortious interference with existing or prospective relationships. The order fails to inform Bellefeuille of the acts she is restrained from doing, without calling on her for legal inferences or conclusions regarding the meaning of tortious interference. See generally San Antonio Bar Ass'n, 291 S.W.2d at 702 (explaining specificity requirement for injunctions). As such, this prohibition is impermissibly vague. See, e.g., Matlock v. Data Processing Sec., Inc., 618 S.W.2d 327, 329 (Tex. 1981); Martinez v. JBIC, Inc., No. 01-14-00717-CV, 2015 WL 4760210, at *2-6 (Tex. App.—Houston [1st Dist.] Aug. 13, 2015, no pet.) (mem. op.); Computek, 156 S.W.3d at 221-22; cf. Mabrey, 124 S.W.3d at 320-21; Bankler v. Vale, 75 S.W.3d 29, 33-34 (Tex. App.—San Antonio 2001, no pet.). We sustain issue five and will discuss the remedy below.
Although we conclude that this provision of the temporary injunction and the provision regarding contacting or soliciting ESMS's customers are vague and overbroad, respectively, we note that the restriction in the residency agreement and in the temporary-injunction order on Bellefeuille's disclosure or use of ESMS's confidential information—including patient lists and personal and regular patient files—through "any means whatsoever" would effectively limit her contact of the owners listed or any interference with their relationships with ESMS.
We have concluded that although the trial court did not abuse its discretion in granting injunctive relief, portions of the temporary-injunction order are overly broad or vague. We have the discretion to modify an injunction that is overly broad or vague, if possible. See, e.g., Cobb v. Caye Publ'g Grp., Inc., 322 S.W.3d 780, 786 (Tex. App.—Fort Worth 2010, no pet.); Marauder Corp. v. Beall, 301 S.W.3d 817, 821 (Tex. App.—Dallas 2009, no pet.); Sw. Research, 103 S.W.3d at 482-83. Based on the record before us, we are able to modify the temporary-injunction order such that it preserves the status quo. Accordingly, we modify page four of the temporary-injunction order as follows: 1. Subparagraph a is modified to provide: "Entering into or engaging in any relationship in a capacity similar to the capacity in which she worked for ESMS, 2991 W. Interstate 20, Weatherford, Texas, 76087, as a partner, joint-venturer, director, shareholder, owner, employee, or independent contractor with any person or entity that provides services similar to the services that ESMS provides to its patients or customers at any location within fifty miles of any ESMS location, including any race-track practices, in which Bellefeuille has provided services for ESMS during the last twelve months of Bellefeuille's employment by ESMS. This prohibition applies for a period of eighteen months from June 1, 2015." 2. Subparagraph d is dissolved. 3. Subparagraph e is modified to provide: "Altering, modifying, damaging, destroying, or in any way changing any document procured, obtained, or created during Bellefeuille's employment with ESMS that constitutes or contains ESMS's confidential and proprietary information, was created in connection with Bellefeuille's duties at ESMS, or relates to ESMS's counterclaims."
We recognize that the residency agreement provided that the duration of its prohibitive covenants would "be extended for an amount of time equal to the period during which [Bellefeuille] is in breach thereof." No party asks us to extend the prohibition date in the temporary-injunction order; therefore, we do not address it. --------
We conclude that the trial court did not abuse its discretion in granting ESMS injunctive relief and that the order is not void. But because portions of the order are overly broad or vague, we modify those portions to preserve the status quo. As modified, we affirm the trial court's temporary-injunction order. See Tex. R. App. P. 43.2(b).
/s/ Lee Gabriel
JUSTICE PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ. DELIVERED: March 24, 2016