concurring and dissenting.
I respectfully concur in part and dissent in part. I dissent with respect to the majority’s conclusion concerning enforcement of the non-competition agreement because I would hold that the trial court’s determination that the non-competition agreement was no longer in effect at the time of Brigance’s termination does not constitute an abuse of discretion.
That determination, based upon the contract and the evidence presented, as to whether the employment agreement was still in effect at the time Brigance left Car Wash’s employment, is a difficult question of law and fact in which the full evidence has yet to be developed at final hearing on the merits. Our determination of that issue in a manner contrary to that of the trial court constitutes a premature decision of the merits of this case and beyond the permissible scope of our review. See Keystone Life Ins. v. Marketing Mgt., 687 S.W.2d 89, 92 (Tex.App.—Dallas 1985, no writ).
The majority assumes that the one-year employment period contemplated by the employment agreement was extended as a matter of law because Brigance continued to be employed at Car Wash after the one year period had expired. It cites no authority for its conclusion. It does state that the agreement requires no formality in order for the extension to take place. I would note that paragraph 2 of the agreement states that the term of employment under the agreement ends one year later “unless expressly extended as provided herein....” The majority has not referred us to any evidence showing that the agreement was “expressly extended.” Viewing the agreement as a whole, I would not consider it an abuse of discretion for the trial court to determine that Car Wash, as the author of the agreement, intended that the contract would not be extended absent “an express agreement” between it and Brigance to that effect. At best, here we have only an implied agreement to extend that would seem not to meet the requirements for an extension of the employment term as set forth in the agreement.
I believe that it would also not be an abuse of discretion for the trial court to have determined that if the agreement were no longer in effect that Brigance could have been discharged without cause and that the non-competition agreement was no longer in effect. I would overrule point of error number two and affirm the trial court’s order denying the temporary injunction enforcing the non-competition agreement. I otherwise concur in the majority’s decision.