Morrell Masonry Supply, Inc. v. John H. Coddou, Jr.

Opinion issued May 1, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00446-CV
———————————
MORRELL MASONRY SUPPLY, INC., Appellant
V.
JOHN H. CODDOU JR., Appellee

On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2012-61489

MEMORANDUM OPINION

Appellant, Morrell Masonry Supply, Inc. (“Morrell”), challenges the trial

court’s order granting appellee, John Coddou, Jr. (“Coddou”), summary judgment

in its suit against Coddou for breach of a covenant not to compete. In its sole
issue, Morrell contends that the trial court erred in granting Coddou summary

judgment.

We affirm.

Background

In October 2007, Morrell, a Houston-based masonry and Exterior Insulation

Finishing System (“EIFS”) supplier, hired Coddou as a plaster salesman. Morrell

did not ask Coddou to sign an employment contract, and his employment was at-

will. In December 2008, after Coddou had worked for Morrell for over a year,

Coddou agreed to sign a covenant not to compete, which states:

In consideration for participating in Morrell Masonry Supply,
Inc.’s (“employer”) profit sharing program employee promises to
abide by the following terms and conditions.

Employee recognizes and acknowledges that as a participant in
employer’s profit sharing program employee will have access to all of
employer’s corporate records. The information contained in
employer’s corporate records is important, material, and confidential
and gravely affects the effective and successful conduct of
employer[’]s business. Therefore, employee specifically agrees that
he or she will not at any time, in any fashion, form, or manner, either
directly or indirectly, divulge, disclose, or communicate to any
person, firm, or corporation in any manner whatsoever any
information of any kind, nature, or description concerning any matters
affecting or relating to the business of employer, including but not
limited to, the names of any of its customers, the prices it obtains or
has obtained or at which it sells or has sold its products, or any other
information concerning the business of the employer, its manner of
operation, its plans, process, or other data of any kind, nature, or
description without regard to whether any or all of the foregoing
matters would be deemed confidential, material, or important.

2
 Employee further recognizes and acknowledges that the
information contained in employer[’]s corporate records could be used
to its competitive disadvantage. Therefore, employee specifically
agrees that for a period of one year following the termination of
employment, however caused, the employee will not within the
geographical limits of the State of Texas directly or indirectly for
himself, or on behalf of, or as an employee of any other merchant,
firm, association, corporation, or other entity engaged in or be
employed by any stucco and/or E.I.F.S. supplier business or any other
business that is competitive with employer.

Employee further agrees that in the event of violation of this
agreement by employee, employee will pay as liquidated damages to
the employer the sum of $100.00 per day, for each day or portion of a
day that the employee continues such breach of the agreement. It is
also recognized and agreed that damages in the event of a breach are
difficult to ascertain, though great and irreparable, and that this
agreement with respect to liquidated damages shall in no event
disentitle employer to injunctive relief.

On December 30, 2009, Morrell sent Coddou a letter notifying him of the

termination of his employment for: (1) “[n]ot completing assigned job duties”; (2)

“[t]hree write ups within the last 3 months”; and (3) “[a]bsences.”

Coddou later began working as a plaster salesman for United States

Gypsum, and he worked there until he retired. In 2012, Morrell brought the instant

suit against Coddou for breach of the covenant not to compete, seeking liquidated

damages. Coddou filed a matter-of-law summary-judgment motion, arguing that

the geographic restriction covered by the covenant not to compete, the entire state

of Texas, is unreasonable, overbroad, and unenforceable. In its response, Morrell

3
asserted that Coddou’s summary-judgment motion was premature and the

geographic restriction was reasonable.

Standard of Review

To prevail on a summary-judgment motion, a movant has the burden of

proving that it is entitled to judgment as a matter of law and there is no genuine

issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). When a defendant moves for summary judgment, it must either

(1) disprove at least one essential element of the plaintiff’s cause of action or

(2) plead and conclusively establish each essential element of its affirmative

defense, thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at

341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston

[1st Dist.] 2005, pet. denied). When deciding whether there is a disputed, material

fact issue precluding summary judgment, evidence favorable to the non-movant

will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49

(Tex. 1985). Every reasonable inference must be indulged in favor of the non-

movant and any doubts must be resolved in its favor. Id. at 549.

Reasonableness of the Geographic Limits

In its sole issue, Morrell argues that the trial court erred in granting Coddou

summary judgment because “multiple fact issues existed in this matter regarding

the reasonableness of the geographic limit contained in [the covenant], including

4
the scope of the sales territory of Coddou,” and it was deprived of its right to a jury

trial. Coddou argues that the trial court did not err in granting him summary

judgment because the geographic limitations in the covenant not to compete are

overbroad, making it unenforceable as a matter of law.

The enforceability of a covenant not to compete is a question of law. Light

v. Centel Cellular Co., 883 S.W.2d 642, 644 (Tex. 1994); Butler v. Arrow Mirror

& Glass, Inc., 51 S.W.3d 787, 792 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

“The hallmark of enforcement is whether or not the covenant is reasonable.”

Marsh USA Inc. v. Cook, 354 S.W.3d 764, 777 (Tex. 2011).

The Covenant Not to Compete Act (“CNCA”) provides in pertinent part:

If the covenant is found to be ancillary to or part of an otherwise
enforceable agreement but contains limitations as to time,
geographical area, or scope of activity to be restrained that are not
reasonable and impose a greater restraint than is necessary to protect
the goodwill or other business interest of the promise, the court shall
reform the covenant to the extent necessary to cause the limitations
contained in the covenant as to time, geographical area, and scope of
activity to be restrained to be reasonable and to impose a restraint that
is not greater than necessary to protect the goodwill or other business
interest of the promisee and enforce the covenant as reformed . . . .

TEX. BUS. & COM. CODE ANN. § 15.51(c) (Vernon 2011). Because the covenant

not to compete signed by Coddou relates to a provision of personal services,

Morrell has the burden of proving that its terms comply with the CNCA. See id.

§ 15.51(b) (“If the primary purpose of the agreement to which the covenant is

ancillary is to obligate the promisor to render personal services, for a term or at

5
will, the promisee has the burden of establishing that the covenant meets the

criteria specified by Section 15.50 of this code.”).

Coddou argues that the covenant not to compete is unenforceable because

“its geographic restriction is unreasonable.” The covenant prohibits Coddou from

working for a supplier of stucco or EFIS, or any competitor of Morrell, anywhere

in the State of Texas. Coddou’s summary-judgment evidence included his own

affidavit, a copy of the non-compete agreement, and Morrell’s letter terminating

his employment. In his affidavit, Coddou testified that Morrell “only did business

in the Houston, Beaumont, and San Antonio areas,” Morrell “had a separate sales

staff for the San Antonio area,” and Coddou “had a specific sales territory that

encompassed Houston, Beaumont, and the surrounding areas.” And Coddou stated

that he “was not involved in a single sale that occurred outside of the Houston or

Beaumont areas.” Morrell’s summary-judgment evidence consisted of the

affidavit of its owner and president, Bradford Cromeens. Cromeens testified that

“Morrell does significant business throughout the entire State of Texas” and

Coddou “was responsible for sales throughout the State of Texas.”

In determining the reasonableness of a covenant not to compete we consider

whether the covenant contains limitations that are reasonable as to geographical

area and do not “impose a greater restraint than is necessary to protect the goodwill

or other business interest of the promisee.” Marsh USA, Inc., 354 S.W.3d at 777.

6
The territory in which an employee worked for an employer is generally

considered to be the benchmark of a reasonable geographic restriction. Butler, 51

S.W.3d at 793 (citing Curtis v. Ziff Energy Group, Ltd., 12 S.W.3d 114, 119 (Tex.

App.—Houston [14th Dist.] 1999, no pet.)); Evan’s World Travel, Inc. v. Adams,

978 S.W.2d 225, 232–33 (Tex. App.—Texarkana 1998, no pet.).

Here, Morrell did not raise a genuine issue of material fact as to the

reasonableness of the geographic restrictions contained in the covenant not to

compete. Coddou presented evidence that Morrell does business in only three

cities and his sales territory for Morrell consisted of two of those cities, Houston

and Beaumont. Coddou also averred that he did not participate in a single sale

outside of Houston or Beaumont. Although Cromeens testified generally that

Coddou was “responsible for sales throughout the State of Texas,” he offered no

factual support for his conclusory assertion.

Morrell asserts that the conflict between Coddou and Cromeens’ affidavit

testimony creates a genuine issue of material fact with respect to “the counties in

which [Coddou] worked and was responsible for in Texas.” However, Morrell

provided no evidence that Coddou worked on its behalf in cities other than

Houston or Beaumont. Nor did Morrell provide any evidence that Coddou’s sales

territory extended to its San Antonio office or anywhere else in Texas.

7
 Morrell’s evidence, consisting of the general assertion contained in

Cromeens’ affidavit that Coddou was responsible for sales throughout Texas is

conclusory and not proper summary-judgment evidence. See TEX. R. CIV. P.

166a(c) (requiring that the testimonial evidence of an interested witness be “clear,

positive and direct, otherwise credible and free from contradictions and

inconsistencies,” and capable of being readily controverted). In his affidavit,

Cromeens merely asserted that Coddou was “responsible for sales throughout the

State of Texas,” and he did not provide any further facts to controvert Coddou’s

testimony, such as naming specific sales transactions in cities other than Houston

and Beaumont. Cromeens merely stated a conclusion without providing any

factual support. See Brown v. Mesa Distribs., Inc., 414 S.W.3d 279, 287 (Tex.

App.—Houston [1st Dist.] 2013, no pet.) (citing Rizkallah v. Conner, 952 S.W.2d

580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.)). An affidavit that states

only legal or factual conclusions without providing factual support does not

constitute proper summary-judgment evidence because it is not credible or

susceptible to being readily controverted. Id. Self-serving affidavits from

interested parties must be clear, positive, direct, otherwise credible, free from

contradictions and inconsistencies, and readily controvertible to support summary

judgment. Id. (citing Trico Techs. Corp. v. Montiel, 949 S.W.2d 308, 310 (Tex.

8
1997)). In contrast, Coddou, in his affidavit, provided specific information about

the geographic scope of his duties.

Morrell asserts that statewide restrictions such as those found in the instant

covenant not to compete are not unreasonable per se. In support of this assertion,

Morrell relies on Salas v. Chris Christensen Sys., Inc., 10-11-00107-CV, 2011 WL

4089999 (Tex. App.—Waco, Sept 14, 2011, no pet.). However, as pointed out in

Salas, a limitation in a covenant not to compete that restricts it to a particular client

base “is an acceptable substitute for a geographic limitation.” 2011 WL 408999, at

*19 (noting that “[o]rdinarily a covenant not to compete with broad or no

geographical scope is unenforceable”). Thus, in Salas, the court enforced the

covenant not to compete despite its lack of a specific geographic restriction

because it was limited instead to a particular client base. No such “substitute”

limitation, restricting the covenant to a particular client base, exists here.

The statewide restriction in the covenant not to compete in the instant case is

too broad to be enforceable because it far exceeds the two cities in which Coddou

worked on behalf of Morrell, even if Morrell’s business extended to San Antonio,

beyond the territory assigned to Coddou. See Butler, 51 S.W.3d at 793. The

geographic restriction in the instant covenant not to compete is significantly

broader than the geographic scope of Coddou’s actual employment. Thus, it is

broader than is reasonably necessary to protect Morrell’s interests. See Marsh USA

9
Inc., 354 S.W.3d at 777. Moreover, there is no evidence that Morrell’s business

extends beyond San Antonio, Houston, and Beaumont. A covenant not to compete

restricting activity throughout the entire state is broader than necessary to protect

Morrell’s business interests. See TEX. BUS. & COMM. CODE § 15.51(c).

Accordingly, we hold that the trial court did not err in granting Coddou summary

judgment.

In regard to Morrell’s assertion that the trial court denied its right to a jury

trial, we note that a party does not have an absolute right to a jury trial in a civil

case. See Willms v. Ams. Tire Co., Inc., 190 S.W.3d 796, 810 (Tex. App.—Dallas

2006, pet. denied) (citing Green v. W.E. Grace Mfg. Co., 422 S.W.2d 723, 725

(Tex. 1968)). Summary judgment is a procedure that may be used to dispose of a

case when there are no genuine issues of material fact and only questions of law

exist. Id. Where, as here, no material issues of fact exist to submit to a jury, the

granting of summary judgment does not violate a party’s constitutional right to a

jury trial. See id.

We overrule Morrell’s sole issue.

10
 Conclusion

We affirm the judgment of the trial court.

Terry Jennings
Justice

Panel consists of Justices Jennings, Higley, and Sharp.

11